Opinion
Civil Action No: SA-04-CR-079-XR
June 2, 2004
ORDER
On this day, the Court considered Defendants' Joint Motion to Suppress. Defendants Oneyra Diaz and Ana Diaz argue that Texas Department of Public Safety Trooper Hogue unreasonably detained and searched Defendant Oneyra Diaz's vehicle in violation of their Fourth Amendment rights. They seek to suppress $481,000 in cash located in the gas tank of the vehicle and various statements made by them. Because the detention exceeded the permissible scope allowed by law, Trooper Hogue unconstitutionally searched and seized their property and person. Therefore, IT IS HEREBY ORDERED that the Motion to Suppress is GRANTED.
FINDINGS OF FACT
1. On February 5, 2004, near Pearsall, Texas, Trooper Hogue noticed a car approaching him which he believed was speeding. The car, driven by Defendant Oneyra Diaz, was traveling southbound down 1-35 while he was traveling northbound. Trooper Hogue turned his vehicle around and initiated a traffic stop. The passenger in the car was Defendant Ana Diaz. The two Defendants are sisters.
2. The entire stop was visually recorded by Trooper Hogue's camera mounted inside his marked police car. The lawful traffic stop begins at approximately 4:16:15.
3. After Defendant Oneyra Diaz pulled the car onto the shoulder of the freeway, Trooper Hogue exited his patrol car and stepped over to the rear passenger side of the Diaz vehicle. Defendant Oneyra Diaz stepped out of her vehicle and approached him. Because Trooper Hogue asked for identification and her insurance, Defendant Oneyra Diaz returned to her car to retrieve them. The camera records her entering her vehicle to look for her paperwork.
4. At approximately, 4:18:00, or roughly a minute and 20 seconds later, Defendant Oneyra Diaz returns with her insurance card and her purse. She hands Trooper Hogue her insurance but says that she could not find her license in the car and that she may have left it at a motel. Trooper Hogue asks if the car belongs to her (4:18:32), if her name is the name on the insurance card (4:18:40), and if she lives in California (4:18:42). Defendant Oneyra Diaz affirms each of those questions.
5. After responding to each of those questions, Defendant Oneyra Diaz finds her license in her purse and hands it to Trooper Hogue at 4:18:48. Thus, approximately two minutes and 27 seconds after the initial stop began, Trooper Hogue has possession of Defendant Oneyra Diaz's insurance and driver's license. Trooper Hogue testified however, that he found it suspicious that she could not find her license right away in her vehicle but found it in her purse after she approached him. He also testified that a person searching for a license is not, in and of itself, indicative of criminal activity.
6. Although Trooper Hogue has both Defendant Oneyra Diaz's insurance and license, he continues to ask her questions concerning where she is coming from, what motel she stayed at the night before, how long she has been driving on 1-35, and where she is headed. She responds that she has come from California and is headed to Laredo. She could not remember the name of the motel from the night before because it had been raining too hard but that she had only been on 1-35 for about an hour and a half. While these all appear relevant to travel, Trooper Hogue also asks her if she works in California and what type of job she has there.
7. Only after this litany of questions in quick succession, does Trooper Hogue inform Defendant Diaz that he is issuing her a warning because her speed was not that excessive. He informs her of this at 4:19:41, almost a minute after he has received her license and insurance papers.
8. Trooper Hogue testified that after these initial questions, in order to confirm or dispel his suspicions, he wanted to talk to her more about her travel. However, the video reflects that his questioning focused more on her personal life, such as if she had family and why she would take a vacation with her sister. He also testified that even before informing her that she would be receiving a warning, he was conducting an investigation based on her nervousness. He "felt [it was his] responsibility to maybe deviate from [issuing a citation] a little bit and inquire a little bit more about why things are like they are."
9. It also appears that as he writes out her warning ticket, he continues to ask questions such as how long she will be in Laredo, if she has family in California, if she's ever been in Laredo and what her sister does for a living. While Trooper Hogue testified that she would not make eye contact with him when answering these questions, the video shows that Trooper Hogue is looking down and writing on the citation ticket when asking these questions. It is unclear from the video when Trooper Hogue expected eye contact and if Defendant Diaz did or did not meet his eyes.
10. At 4:20:39, Trooper Hogue hands Defendant Diaz her insurance back but keeps her license. Ten seconds later, she seeks confirmation that he is only going to give her a warning. Although he immediately responds yes, he commands her to stand by his patrol car so that he can speak with her sister, who remained in the passenger seat of the vehicle.
11. Trooper Hogue testified that he never ran any computer check on her license, that he did not suspect that the car had been stolen and that the speeding violation was the only violation for which he had stopped Defendant Diaz. He also testified that he had no intention of running a computer check even during the initial stages of the traffic stop because within the first three minutes he was conducting a criminal investigation.
12. Before Trooper Hogue speaks to Defendant Ana Diaz, he has completed the entire reason for the initial stop. He has told Defendant Diaz that she will only be issued a warning, he has returned her insurance, and it appears he has completed the citation. At this point, Trooper Hogue has stated that the only suspicious activity was that Defendant Oneyra Diaz was nervous and had trouble finding her license.
13. At 4:20:52, Trooper Hogue approaches the car to speak with Defendant Ana Diaz. As he leans into the passenger side window, his microphone cuts out and the videotape is unable to record his conversation. However, he testified that he asked her many of the same questions such as where the two were headed, who they would be staying with, and what she and her sister did for a living. Because Defendant Ana Diaz's answers conflicted with what Defendant Oneyra Diaz said, Trooper Hogue testified that he became more suspicious.
14. After approximately two minutes of questioning Defendant Ana Diaz, Trooper Hogue returns to his patrol car and asks Defendant Oneyra Diaz if she is going anywhere else besides Laredo. She initially says "whereever" but upon further questioning says no. He immediately asks if there is anything illegal in the car or if there is any money in the car. She answers no to both those questions.
15. At 4:23:27, Trooper Hogue asks if he can search the car. Defendant Oneyra Diaz answers yes.
16. Trooper Hogue proceeds to ask if there are any guns in the car, or if Defendant Oneyra Diaz has ever been arrested. She assures him that there are no guns and that she has never been arrested. She tells him to go ahead and "check it" presumably referring to her license which he is still holding.
17. At 4:24:33, after asking Defendant Ana Diaz to step out of the car, Trooper Hogue begins his search. The video records his extensive search in the front of the vehicle. He proceeds to the back seat and finally the trunk. After four minutes, he approaches the Defendants at the front of his police car, and informs them that gas has spilled in the back of the car. The Defendants do not respond.
18. Trooper Hogue retrieves an optical scope from his patrol car, and returns to Defendant Oneyra Diaz's car at 4:31:11. He attempts to look into the gas tank although he testified that he was unable to see anything.
19. At 4:34:33, he returns to where the Defendants are standing and asks them if they know what is in the gas tank. Because the Defendants do not answer him, he asks if they have let anyone borrow the car. Defendant Oneyra Diaz nods her head and says she has let some friends borrow the car. He begins to tell them that he is there to help them and that they can help themselves out if they tell him the truth. He also describes a scenario for a drug delivery and explains that from his experience, the scenario is usually how the delivery will happen.
20. Because the Defendants remain silent, he then tells them that he can only help them if they first help him. At 4:35:33, fifteen minutes after Trooper Hogue told Defendant Oneyra Diaz that she would only be receiving a traffic warning, Defendant Oneyra Diaz responds, "How are you going to help me?"
21. At 4:35:55, Trooper Hogue says that he can get her probation rather than jail. He then infers that because Defendant Oneyra Diaz's sister is over 17, she will be tried as an adult. He tells the older sister, Defendant Oneyra Diaz, that her younger sister will be tried as an accomplice.
22. At 4:36:14, Defendant Oneyra Diaz breaks down and admits that there is money in the gas tank. Trooper Hogue attempts to learn how the delivery was to happen.
23. At 4:36:32, Trooper Hogue asks how much money is in the gas tank. Defendant Oneyra Diaz states that she does not know.
24. At 4:37:41, Trooper Hogue uses his cell phone to call in and inform his superiors that he has found a money load and that Defendant Oneyra Diaz will cooperate. He receives instructions to bring her and the vehicle back to San Antonio. At 4:40:29, he states that she must follow him back to San Antonio. Trooper Hogue says she has to follow him back to San Antonio so that they can count the money before an attempt at a controlled delivery. He also states that one of the two sisters must ride with him. Defendant Oneyra Diaz begins to cry and states that she does not want to drive the car. Defendant Oneyra Diaz is upset and states that she does not want to cooperate and that she does not want to participate in a controlled delivery.
25. At 4:45:15, he asks her if she is going to panic and run. He states that if she does, he will catch her. He tells her not to call anyone and that she has to follow him. She has become uncooperative and will not provide the Trooper with the number of the individual she was to contact upon arrival in Laredo.
26. At 4:53:33, he asks to see her purse and searches it, attempting to find the number for the contact person in Laredo. At 4:54:54, the parties enter their respective vehicles and begin the trip back to San Antonio.
27. Trooper Hogue does not "Mirandize" either Defendant. The Defendants follow Trooper Hogue back to the San Antonio office. At the office, Officer Phillips asked Defendant Oneyra Diaz some brief background questions such as marital status, address, and employment before "Mirandizing" her. Shortly after she was "Mirandized," Defendant Oneyra Diaz asked to speak with a lawyer and the questioning stopped.
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 right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const., Amend. IV. "There is no question but that the stopping of a vehicle and the detention of its occupants is a `seizure' within the meaning of the Fourth Amendment." U.S. v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993). "The reasonableness of [a] detention depends on (1) `whether the officer's action was justified at its inception,' and (2) `whether it was reasonably related in scope to the circumstances which justified the interference in the first place.'" U.S. v. Brigham, 343 F.3d 490, 498 (5th Cir. 2003) citing U.S. v. Dortch, 199 F.3d 193 (5th Cir. 1999).
In November 2003, the Fifth Circuit granted a rehearing en banc for U.S. v. Brigham. U.S. v. Brigham, 350 F.3d 1297 (5th Cir. 2003).
3. The Defendants did not dispute the fact that they were speeding when Trooper Hogue initially stopped them. "The primary law enforcement purposes for making a traffic stop of a moving vehicle on a public highway are: (1) to verify that a violation of the traffic laws has occurred or is occurring and, (2) to provide for the issuance of an appropriate ticket or citation charging such traffic violation or make an arrest of the driver based upon such violation." Brigham, 343 F.3d at 498. Thus, the primary law enforcement purposes of verifying a speeding violation and issuing a warning citation justified the initial detention.
Defendant Ana Diaz, although a passenger, has standing to dispute the initial constitutionality of the traffic stop. U.S. v. Grant, 349 F.3d 192, 196 (5th Cir. 2003).
4. To meet Constitutional muster though, the continuation of the detention must also be reasonably related in scope to the speeding violation. When applying the second prong of this test, the detention must be temporary and last no longer than necessary to effectuate the purpose of the stop. Id.; Dortch, 199 F.3d at 200; Fla. v. Royer, 460 U.S. 491, 500 (1983). Any "questioning unrelated to the justification for the stop that extends the duration of the stop violates the Fourth Amendment." Brigham, 343 F.3d at 500 (citations omitted).
5. Trooper Hogue testified, and the video showed, that because Defendant Oneyra Diaz's speed was not excessive, he was only issuing her a warning. Thus, the primary purpose of the traffic stop, the issuance of Defendant Oneyra Diaz's warning, was completed at 4:20:39. At this point, the video shows that Trooper Hogue returned Defendant Oneyra Diaz's insurance and confirmed that she would only be receiving a warning. The video also shows that he has stopped writing on what must be the citation. Although there was no direct testimony that the warning citation was completed at this time, Trooper Hogue appears to be finished with the warning based on the video. See also Government's Supplemental Brief, 15 ("Hogue also utilized the time to write Diaz a warning which he then presented to her.").
6. Any questioning that took place from the initial stop until the completion of the warning was legitimate even when unrelated to the speeding violation. See Shabazz, 993 F.2d at 437; Dortch, 199 F.3d at 198. In Shabazz, the Fifth Circuit held that because the initial traffic stop was valid, any questioning that occurred while the officers were waiting for the results of a computer check on a driver's license must be constitutional because the questioning did not prolong the time of the initial valid stop. Id. While Trooper Hogue did not run a computer check in this case, the time it took for him to write out a warning citation is analogous. Thus, this part of the detention was still necessary to effectuate the purpose of the stop.
Trooper Hogue returns Defendant Oneyra Diaz's insurance and appears to complete the warning citation
7. Before an officer can further investigate during a traffic stop, he or she must be able to articulate specific facts and circumstances that present a reasonable suspicion. Brigham, 343 F.3d at 498. 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. However, after the warning citation has been completed, "any delay that occur[s] with respect to the warning citation being meted out [may be] due to the officers' action or inaction." Jones, 234 F.3d at 241. In Jones, the officers ran a computer check on both the driver and passenger. After the computer check came back clear, the officers continued questioning the men for a period of three minutes before seeking the driver's consent to search. The Fifth Circuit held that the defendants' allegedly inconsistent answers with respect to their employment, the type of job that one of them had, and the fact that one of them had been arrested for cocaine in the past did not amount to a reasonable suspicion of illegal drug trafficking. In Jones, as soon as the computer check came back, the officers should have given the driver his warning and let them go.
9. The fact that Trooper Hogue never ran a computer check is immaterial because "the completion of a computer check is not the exclusive dividing line between constitutional and unconstitutional detention." Brigham, 343 F.3d at 500. Rather, "[t]he linchpin for analyzing the reasonableness of a detention . . . is the scope of reasonable suspicion, i.e., the reasonable suspicion that justified the detention. . . ." Id. In U.S. v. Valadez, 267 F.3d 395 (5th Cir. 2001), an officer initiated a traffic stop due to his belief that the car contained illegal window tinting and an invalid inspection sticker. Upon approaching the vehicle, the officer was able to tell that the inspection sticker was valid. By using a window tint meter, the officer was also able to tell that the tint was legal. The Fifth Circuit held that "detention was not lawful after the point at which the purposes of the stop was resolved — that is, when Officer Slubar determined that Valadez had a proper inspection sticker and proper window tinting." Valadez, 267 F.3d at 398. Thus, even if Trooper Hogue verbally gave Defendant Oneyra Diaz a warning, any questioning after that point must be supported by a reasonable suspicion of other illegal activity unrelated to speeding.
10. Although Defendants are "under no obligation to answer the questions, the Constitution does not forbid law enforcement officers from asking." Shabazz, 993 F.2d at 437. In fact, not every encounter between the police and a citizen implicates the Fourth Amendment. INS v. Delgado, 466 U.S. 210 (1984). However, once Trooper Hogue finished writing out the warning citation or giving the warning verbally, the primary purpose of the traffic stop had been completed.
11. The Fifth Circuit has created a line of cases "strictly [limiting] the scope of the detention to the identifiable reasonable suspicion that originally justified the stop." Brigham, 343 F.3d at 501, See also Jones, 234 F.3d at 240; Dortch, 199 F.3dat 198. In each of these cases, the Fifth Circuit has concluded that nervousness or even slightly inconsistent answers do not justify an investigation for drug interdiction purposes. Brigham, 343 F.3d at 501-02. For example, in Dortch, the driver and passenger gave conflicting answers when explaining their stay in Houston. In addition, the car was rented and the driver was not on the rental agreement. In that case, the Fifth Circuit held that the above, even coupled with the fact that the rental papers said the car had originated in Florida and the driver has said Houston, gave rise only to a reasonable suspicion that the car had been stolen. The driver's alleged nervousness and the above discrepancies did not create a reasonable suspicion of illegal drug trafficking.
While Defendants' counsel emphasized that Trooper Hogue's duty on that day was only drug interdiction, the Government established that this stop was based on a traffic violation and was not made in conjunction with any sort of narcotic checkpoint. The Court suspects that Defendants' counsel was attempting to extend the Supreme Court's holding that narcotic checkpoints are unconstitutional per se. City of Indianapolis v. Edmond, 531 U.S. 32 (2000). The Court does not find that this stop was made in conjunction with a checkpoint.
12. Here, Defendant Oneyra Diaz appears forthright and confident as she answers the wide range of questions put to her by Trooper Hogue. 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. 266, 273 (2002); U.S. v. Sokolow, 490 U.S. 1, 7 (1989) (citations omitted).
13. Trooper Hogue fails to articulate a reasonable suspicion after completing the warning citation. He testified that Defendant Oneyra Diaz's nervousness, lack of eye contact, and trouble locating her license created a reasonable suspicion. Although he never stated what type of criminal activity he suspected her of, his line of questioning indicates that he believed she was trafficking illegal drugs or money. Because he testified that these three factors created a reasonable suspicion, the Government has failed to carry its burden in justifying this Fourth Amendment violation. Valadez, 267 F.3d at 398.
Validity of Defendant Oneyra Diaz's consent
14. A "consent to search may, but does not necessarily, dissipate the taint of a Fourth Amendment violation." U.S. v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. 1993). The Government must establish that the consent was an independent act of free will and voluntary. Id. It is undisputed that Defendant Oneyra Diaz consented to the search of her vehicle after Trooper Hogue spoke with her sister. However, she maintains that her consent was not an independent act of free will.
15. The consent can only be an act of free will if the causal chain between the Fourth Amendment violation and the consent is broken. Id. To determine if the causal chain was broken, the Court must consider: "(1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct." Id. at 128.
16. The warning citation was completed at approximately 4:20:39 and consent was obtained at 4:23:27. Thus, very little time elapsed between the illegal conduct and the consent.
17. However, between 4:20:54 and 4:23:14, Trooper Hogue was speaking to the passenger of the car. While this may be considered an intervening circumstance, Trooper Hogue was asking Defendant Ana Diaz the same questions he had asked Defendant Oneyra Diaz. Thus, this circumstance was actually a part of the unconstitutional detention brought about by Trooper Hogue's questioning without a reasonable suspicion.
18. In addition, the entire illegal detention immediately preceded Defendant Oneyra Diaz's consent. Although she believed she was only receiving a warning, Trooper Hogue commanded her to stand by his vehicle as he spoke with her passenger. At no time, could Defendant Oneyra Diaz reasonably believe she could leave. See Brigham, 343 F.3d at 506.
19. Trooper Hogue also testified that at no time did he return Defendant Oneyra Diaz's license. Thus, like in Brigham, Defendant Oneyra Diaz was still detained when Trooper Hogue asked for consent to search the vehicle. Id.
20. Finally, Trooper Hogue testified that he had never intended to run a computer check and that his investigation began immediately. He could not support that investigation with a "particularized and objective basis." Arvizu, 534 U.S. at 273. Thus, the purpose behind the misconduct appears to have been to obtain consent to search the vehicle.
21. Based on the foregoing factors, Defendant Oneyra Diaz's consent cannot be considered an independent act of free will. Thus, her consent does not dissipate the taint from the illegal conduct. Under the "fruit of the poisonous tree" doctrine, "all evidence derived from the exploitation of an illegal search or seizure must be suppressed. . . ." U.S. v. Rivas, 157 F.3d 364, 368 (5th Cir. 1998) citing Brown v. III., 422 U.S. 590, 602 (1975); Wong Sun v. U.S., 371 U.S. 471, 484 (1963). Therefore, the Court GRANTS Defendants' Joint Motion to Suppress.