Opinion
Criminal No. SA-04-CR-405-XR.
October 26, 2004
ORDER
On this day, the Court considered Defendant's Motions to Suppress (docket nos. 16, 25 and 33). Defendant argues that Trooper Gonzales from the Texas Department of Public Safety illegally stopped and unreasonably detained and searched his vehicle in violation of his Fourth Amendment rights. Defendant further seeks to suppress all items removed from his vehicle, including 1.94 kilograms of cocaine hidden in the truck's air conditioner vents. The Court DENIES Defendant's motions.
FINDINGS OF FACT
1. On July 26, 2004, Trooper Gonzales was on patrol in Gonzales County and traveling eastbound on IH-10. He observed a Chevrolet pickup drive on the improved shoulder of the interstate and initiated a traffic stop of the truck.
2. A camera mounted inside Trooper Gonzales's patrol car recorded the traffic stop, which began approximately at 15:32 hours.
3. The pickup displayed a Mexican license plate PS-71-000. The defendant is a citizen of the Republic of Mexico.
4. Defendant pulled his vehicle over to the improved right shoulder of the interstate. Gonzales requested identification and explained the reason for the stop. At 15:33:40, Defendant conveyed a written document that contained a Mexican license number, a document verifying proof of insurance and an immigration VISA card.
5. Trooper Gonzales asked the defendant where he was going and defendant responded that he was traveling to Houston to purchase paint, that paint was cheaper in Houston, and he produced a paper that had Sherwin Williams written on it. Trooper Gonzales asked where in Houston the store was located and Defendant could only respond that it was off Interstate 10. Trooper Gonzales asked how much paint he was going to purchase, and Defendant responded that he was going to buy twenty 25-gallon cans. Trooper Gonzales asked Defendant how much money he had in his possession and Defendant proceeded to pull out his wallet and determined that he had $100 in his possession.
All conversations between Trooper Gonzales and Defendant were conducted in Spanish.
6. Trooper Gonzales asked Defendant where in Houston he would be staying. Defendant responded that although he had relatives in Houston, he would be staying at a La Quinta motel, but was unable to provide an address.
7. Trooper Gonzales testified that his suspicion was aroused when he noticed that the truck was void of any personal belongings.
8. At 15:35:23, Trooper Gonzales checked the vehicle's vehicle identification number (VIN), and visually inspected the gas tank for evidence of tampering. Trooper Gonzales also opened the driver front door and inspected the sticker located on the door interior.
9. At 15:36:37, Trooper Gonzales began writing a warning citation.
10. At 15:39, prior to completing the warning citation, Trooper Gonzales asked Defendant whether he had any drugs in his possession. Defendant responded that he did not.
11. At 15:39:11, Trooper Gonzales asked Defendant if he could search the entire vehicle. Defendant gave his permission.
12. Trooper Gonzales testified that he suspected that contraband was located in the truck for the following reasons: (1) Defendant did not know an exact address for the Sherwin Williams paint store; (2) he questioned whether paint was cheaper in Houston; (3) only one key was in the ignition and no personal effects were inside the truck; (4) the one key and lack of personal belongings was consistent with previous drug couriers he has encountered; (5) Defendant could not provided a better address for the La Quinta motel he would be staying at; (6) Defendant hesitated in answering how many paint cans he was going to purchase; (7) Defendant did not have enough cash to purchase paint, pay for a hotel and purchase gas for the return trip.
13. Immediately after receiving permission to search the vehicle, Trooper Gonzales did a "pat down" of Defendant to insure that he was not carrying any firearms.
14. When Trooper Gonzales began a search of the vehicle interior he noticed that screws holding the plastic dash cover had been freshly tooled. Trooper Gonzales asked Defendant if the dash had been removed for any reason. Defendant responded that a stereo was installed. Trooper Gonzales knew from previous experience that removal of the dash was not necessary for removal or installation of a car stereo and proceeded to insert a fiber optic scope behind the dash area. Sometime later the scope revealed the existence of bundles behind the air conditioning vent.
15. At no time during the search of the vehicle did Defendant request that Trooper Gonzales stop the search or in any other way withdraw his consent to search.
16. Thereafter, Trooper Gonzales placed Defendant under arrest and proceeded to administer the Miranda warning to him in Spanish.
CONCLUSIONS OF LAW
1. Any finding of fact herein above which also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law herein made which also constitutes a finding of fact is hereby adopted as a finding of fact.
The Initial Traffic Stop
2. The Fourth Amendment protects individuals from unreasonable search and seizure. U.S. CONST. amend. IV. Because a routine traffic stop, and subsequent detention, implicates the Fourth Amendment as a seizure, the stop must be limited. Terry v. Ohio, 392 U.S. 1 (1968). Thus, the police officer's action must be justified at its inception, and the seizure must be reasonably related in scope to those justifying circumstances. Id. at 20.
3. Once the purpose of the valid traffic stop has been completed, the detention or investigative stop must end unless there are additional reasonable suspicions supported by objective and articulated facts. U.S. v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003). Defendant disputes both that the traffic stop was justified at its inception and that his detention during the stop was reasonably related in scope to the reasons articulated for the initial stop.
4. Defendant argues that Trooper Gonzales's initial stop was unlawful because there is no conclusive proof, other than Trooper Gonzales's testimony, that he was driving on the improved shoulder of the interstate. The fact remains that Trooper Gonzales testified that he personally saw Defendant driving on the improved shoulder and that act violates Texas Transportation Code § 545.058.
5. Defendant presented no evidence to rebut Trooper Gonzales's testimony. Trooper Gonzales was justified in stopping Defendant for violating TEX. TRANS. CODE § 545.058.
Questioning Reasonably Related in Scope to the Circumstances
6. Questions about the purpose and itinerary of a trip are permissible during a legitimate traffic stop. Gonzalez, 328 F.3d at 758; U.S. v. Henry, 372 F.3d 714 (5th Cir. 2004). Thus, any argument that Trooper Gonzales's questions concerning Defendant's journey exceeded the scope of the traffic stop is meritless. See also U.S. v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993) ("[D]etention, not questioning, is the evil at which Terry's second prong is aimed.").
Reasonable Suspicion of Criminal Wrongdoing
7. "Beginning with Terry v. Ohio, 466 U.S. 1 (1968), the [Supreme] Court has recognized that a law enforcement officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further." Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt City, 124 S.Ct. 2451, 2458 (2004). By examining the totality of the circumstances, the Court must determine "whether the detaining officer has a `particularized and objective basis' for suspecting legal wrongdoing." U.S. v. Arvizu, 534 U.S. 266, 273 (2002) (citation omitted).
8. This is not a situation where Trooper Gonzales unreasonably detained Defendant by continuing his questioning after he completed the warning. See U.S. v. Jones, 234 F.3d 234 (5th Cir. 2000); U.S. v. Dortch, 199 F.3d 193 (5th Cir. 1999). In that line of cases, the officer had completed the initial justification for the stop either by writing out and handing over a citation, or running a computer check on a driver's license. Because the purpose of the initial traffic stop had been completed, and the officer could not articulate a reasonable suspicion of criminal activity, the officer's continued detention and questioning of the individuals unreasonably prolonged the traffic stop. See also U.S. v. Valadez, 267 F.3d 395 (5th Cir. 2001) (holding that when the officer stopped the vehicle because he suspected that the window tint was illegal and the registration sticker out of date, the officer should have allowed the vehicle to continue when he realized that both those items were proper).
The proper inquiry focuses on Trooper Gonzales's questioning while writing out the warning and whether Trooper Gonzales articulated a reasonable suspicion based on the totality of the circumstances. U.S. v. Sanchez-Pena, 336 F.3d 431, 443 (5th Cir. 2003); Arvizu, 534 U.S. at 273.
9. While officers must "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them," the suspicion required to justify a detention must arise from more than an unparticularized suspicion or hunch. Arvizu, 534 U.S. at 273; U.S. v. Sokolow, 490 U.S. 1, 7 (1989) (citations omitted). This is not a situation where Trooper Gonzales merely articulated a "hunch" that Defendant was involved in illegal drug trafficking.
10. A court making the assessment of whether the stop has exceeded the scope of its initial justification, "should take care to consider whether the police are acting in a swiftly developing situation and in such cases the Court should not indulge in unrealistic secondguessing." U.S. v. Sharpe, 470 U.S. 675, 686 (1985). Based upon Trooper Gonzales's experience and the factors identified in Finding of Fact No. 12 above, they indicated that Defendant was transporting narcotics.
Consent to Search
11. Because Trooper Gonzales's questioning was reasonably related in scope to the initial justification of the traffic stop, he did not unreasonably detain Defendant. At 15:35:23, approximately 3 minutes after the initial stop, Trooper Gonzales reasonably suspected that Defendant was transporting illegal narcotics.
12. Since Trooper Gonzales's line of questioning did not violate the Fourth Amendment, Defendant's consent to search could not be unconstitutionally tainted, and the limited Terry stop detention was permitted by U.S. v. Brigham, 382 F. 3d 500, 512 (5th Cir. 2004). Defendant presented no evidence to support the idea that his consent was not voluntary or an independent act of free will.
13. Defendant's argument that he should have been "Mirandized" prior to his consent to search is unsupported in law. Likewise, there is no statutory or constitutional duty that he be informed of his right to refuse consent. Cf. Ohio v. Robinette, 519 U.S. 33 (1996); Sanchez-Pena, 336 F.3d 431, 442 (5th Cir. 2003).
CONCLUSION
Based on the totality of the circumstances, Trooper Gonzales's questioning relating to Defendant's travel plans was permissible, and created a reasonable suspicion that Defendant was transporting illegal narcotics. Defendant's valid consent authorized Trooper Gonzales to act on those reasonable suspicions and search the car for evidence of illegal contraband. Defendant's Motion to Suppress is DENIED.