Opinion
No. 04-40045-01/02-SAC.
September 9, 2004
MEMORANDUM AND ORDER
The case comes before the court on the following pretrial motions of the defendant Yolanda Edgerton: Motion to Disclose Expert Testimony (Dk. 22), Motion to Suppress Evidence (Dk. 23), and Motion for Severance (Dk. 25), and on the defendant Jessica Cons's Motion to Suppress Evidence and Statements (Dk. 21). The government has filed a consolidated response to these motions. (Dk. 31). The parties presented evidence and oral argument in support of their positions on July 14, 2004. At the close of the hearing, the court granted the parties' request to file supplemental briefs. Having reviewed all matters submitted and having researched the relevant law, the court is ready to rule on the motions.
INDICTMENT
Both defendants are charged in a two-count indictment with drug trafficking. Count one charges that from March 1, 2004, to on or about March 27, 2004, the defendants conspired to possess with the intent to distribute five kilograms of cocaine. Count two charges that on or about March 27, 2004, the defendants possessed with the intent to distribute five kilograms of cocaine.
FACTS
Shortly before 2:30 a.m. on March 27, 2004, Trooper Dean with the Kansas Highway was patrolling I-70, and Trooper Ranieri who also was on duty was a passenger in Dean's patrol car. Near milepost 316, Trooper Dean observed a white 1991 Mercedes-Benz passenger car also traveling eastbound and followed it for approximately one mile. He saw that the car did not have a license plate or registration paper in its rear tag brackets. Trooper Dean was able to see a piece of paper posted in the rear window, but he could not read what was on the paper and could not determine whether the paper was a tag or registration.
The government called only Trooper Dean to testify about this traffic stop. Consequently, the facts are based upon the videotape recording, the other admitted exhibits, and Trooper Dean's testimony about what he observed during the stop, including what Trooper Ranieri said and did.
Believing a violation of K.S.A. 8-133 had occurred, Trooper Dean activated his emergency lights requiring the Mercedes-Benz to pull over. As he approached the car on foot and shined his flashlight on the piece of paper posted in the rear window, he saw that it was a temporary Colorado registration. Unable to see and read the posted temporary registration tag without his flashlight shining on it, Trooper Dean concluded that it had not been fastened and maintained as to be clearly visible and legible, so he proceeded with the traffic stop based on this violation of K.S.A. 8-133.
In pertinent part, K.S.A. 8-133 requires:
"Every license plate shall at all times be securely fastened to the vehicle to which it is assigned so as to prevent the plate from swinging, and at a height not less than 12 inches from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible, and shall be maintained free from foreign materials and in a condition to be clearly legible."
Trooper Dean approached the driver and told her that he could not see the tag in the back window and that he needed "to be sure it was there." The Trooper requested the vehicle's registration and asked about her travel plans. The driver answered that she and her female passenger were headed for Kansas City but that they planned to stop in Topeka for the night. Trooper Dean also requested to see a driver's license. While Trooper Dean was conducting the stop, Trooper Ranieri was inspecting the outside of the car and looking through the car's windows with his flashlight. Trooper Ranieri's activities did not interfere with or prolong the stop, and the defendant Edgerton made no comments about those activities. With the license and registration in hand, Trooper Dean told them to stay in the car and he would return in a minute.
From the Colorado car registration, Trooper Dean determined that the car had been recently purchased by Yolanda Edgerton, the same person identified on the Colorado driver's license. During this first contact, Trooper Dean smelled the strong odor of air freshener coming from the car and saw a Christmas tree air freshener hanging from the rear of the center console. He also noticed that the driver Edgerton appeared unusually nervous, avoided eye contact, moved around in her seat, and was so talkative that the trooper thought the driver may be trying to distract him. Trooper Dean also saw energy drinks sitting on the console and on the floor. Based on his training and experience, Trooper Dean testified that these circumstances made him suspicious of the defendant's possible involvement in drug trafficking.
Trooper Dean returned to his car and wrote Ms. Edgerton a warning for improper display of license plate. He then approached the car and returned the documents to Ms. Edgerton. Trooper Dean also explained the warning to her and verified that they were headed to Kansas City. Ms. Edgerton responded that they we attending a family reunion there and while unsure of how long they were staying she expected they would be returning the following Monday or Tuesday. Dean observed that Ms. Edgerton's nervousness did not subside during the second contact as evidenced by her talking, her smoking, and her brushing of her hair. Trooper Dean testified that it is unusual for a person's nervousness not to subside during this last part of the stop but instead remain unusually high.
Trooper Dean told Ms. Edgerton, "Well, you have a safe trip," and the defendant commented on the "boring" landscape of Kansas making nights the best time for driving through it. After she finished her comment, Trooper Dean again told her to "have a safe one" and then appeared on the videotape to step back towards the rear of the car. He immediately stepped forward again and asked the defendant for permission to ask "a couple more questions real quick." Trooper Dean testified that Ms. Edgerton answered "sure." After explaining that there have been "problems with drugs and guns and large amounts of cash and stuff on the interstate," he asked if she had any of these items. Upon Ms. Edgerton saying "oh no," Trooper Dean asked for her consent to look in the car and to search her trunk. On the videotape, Ms. Edgerton is heard to answer, "sure," and to give directions to push the button to open the trunk. Trooper Dean then requested that the defendant and passenger remain in the car while they conducted the search and that the search would be completed "in a second."
Trooper Dean testified that the defendant Edgerton did not appear to be under the influence of alcohol or drugs or to be suffering from any mental disease or defect. He denied making any threats or promises in connection with asking for Ms. Edgerton's consent to search the car. Trooper Dean said he used a normal conversational tone of voice, did not coerce the defendant, and sought her consent in a manner consistent with his training and experience.
The troopers opened the trunk and were struck immediately by the strong odor of gasoline. They saw a red gas can and two suitcases stored in the trunk. Trooper Ranieri indicated that the carpeted wall between the trunk and the back had been removed or handled, so he pulled it back revealing the car's gas tank. The gas tank had been spray-painted black. From the clear appearance of the paint, Trooper Dean inferred that the tank had been painted recently. There were fresh scratch marks on the tank that appeared to have been made by tools and that showed the surface beneath the paint without any surface rust. They opened the exterior fuel door, and Trooper Dean observed a newer gas cap on the tank, scratch marks around the tank's nozzle, and the nozzle sitting in a "funny" or "crooked" position. From the tank's exterior condition, Trooper Dean reasonably inferred that the tank may have been worked upon, removed, and/or altered. The troopers agreed that they should check the tank's interior with a fiber optic scope. Because Trooper Dean did not have a scope in his patrol car and Trooper Dean's scope was in his patrol car that was parked at the Kansas Department of Transportation ("KDOT") office located near I-70 Exit 328, they decided to ask for Ms. Edgerton's consent to an additional search at this other location.
Trooper Dean then returned to the front of the car and asked Ms. Edgerton if she would follow the troopers to exit 328 so that they could take a closer look at the gas tank. When Ms. Edgerton replied, "My gas tank?", Trooper Dean asked again whether that would "be okay?" Ms. Edgerton answered: "Well if you want to look at my gas tank, you go right ahead" because they had been smelling gas and she had "just put a new gas cap on." Trooper Dean then repeated his query whether it would be okay for her to follow them, and Ms. Edgerton replied, "no problem."
Ms. Edgerton drove her car approximately nine miles east on I-70 to Exit 328 and then one-half mile north to the KDOT office where the troopers used a fiber optic scope to search the interior of the gas tank. They saw a "clumpy" weld mark that did not appear to be factory made or to be consistent with a manufacturer's construction of the tank. They also saw that the tank appeared narrower and thus smaller than what would expect for a car of this size. Because this tank seemed to be very narrow and to have a sloppy weld mark, the troopers were now convinced that the tank had been altered so as to create a secret compartment for hauling something illegal. It was decided that they would need to move someplace with indoor lighting in order to complete their search of this secret compartment.
After the defendants were told that the troopers had some concerns over the gas tank, Trooper Dean asked Ms. Edgerton to follow them to the Junction City Police Department warehouse. Ms. Edgerton agreed, and neither defendant objected to the continuing search or withdrew their consent. Nor did Ms. Edgerton say anything to the troopers about her car being low on fuel. After driving approximately five miles towards Junction City, Ms. Edgerton stopped her car over to the side of I-70, and Trooper Ranieri pulled over his patrol car in front of the defendant's and Trooper Dean turned around and stopped behind the defendant's car. Trooper Ranieri spoke with the defendants first and then reported to Trooper Dean that the defendants were indicating their car was out of fuel. Believing there was a secret compartment and having concerns over officer safety and the defendants' cooperation, Trooper Ranieri handcuffed Ms. Edgerton and placed her in Trooper Dean's patrol car. The troopers emptied the gas can from the defendant's trunk into the fuel tank and directed Ms. Con to drive the car to Junction City.
When they arrived in Junction City, the defendants watched the search from seats inside in a caged area that was unlocked. The troopers removed the back seat from the car and found a secret compartment between the back seat and trunk wall where the narrow altered gas tank was also located. The troopers then arrested the defendants based on the cocaine found in the compartment. Following their arrest and Miranda warnings, Ms. Con apparently gave a statement to officers that implicated herself and Ms. Edgerton in drug trafficking. This statement is the subject of the defendant Edgerton's motion to sever.
MOTION TO DISCLOSE EXPERT TESTIMONY (Dk. 22)
In her motion, the defendant Edgerton said that the government had yet to disclose the laboratory results regarding the alleged controlled substances, and she also asked that the court direct the government to comply with Fed.R.Crim.P. 16(a)(1)(E). The government responded in writing that it had not received the laboratory reports and that it would disclose the same along with the chemist's resume upon receipt. As for disclosure of other expert testimony, the government described in its brief the possible areas and topics of expert witness testimony as being commonly observed or known activities, practices, modes of operation, prices, records, paraphernalia and equipment involved in drug trafficking. When asked at the hearing, counsel for Edgerton said she was still asserting her Rule 16 request, as the government had not identified the expert witnesses, their qualifications, their opinions, and the bases and reasons for the opinions. Taking the position that his written response satisfied Rule 16 requirements, the government's counsel said he had used in another case a response "virtually verbatim" to the one here and another federal judge had found it sufficient.
Rule 16(a)(1)(G) mandates that the government provide a written summary of any expert witness testimony, including: (1) the witness's opinions; (2) the bases and reasons for the opinions; and (3) the expert's qualifications. The government's written summary bespeaks of a boilerplate disclosure for drug trafficking cases involving cocaine base, as it comprehensively identifies the possible expert opinions from law enforcement officers that could be or are likely to be offered in cocaine trafficking cases. What it offers in assurance to the government by its obvious breadth, the written summary frustrates for the defendant in its lack of case-specific information. As written, Rule 16 certainly contemplates a disclosure that informs the defendant of whom the expert witnesses will be, what are their qualifications, what opinions are expected in good faith to be the subject of testimony, and the bases and reasons for those opinions. The government's written summary does not comply with Rule 16, and the government shall provide a written summary that complies with Rule 16 no later than two weeks prior to trial.
MOTION TO SEVER PURSUANT TO FED. R. CRIM. P. 14 (Dk. 25)
The defendant Edgerton seeks to sever her trial from the co-defendant arguing that the admission of co-defendant Cons's post-arrest statement would violate the defendant Edgerton's confrontation rights under Bruton v. United States, 391 U.S. 123 (1968). In her statement to law enforcement officers, Ms. Cons said that Edgerton had been running drugs for Cons' former boyfriend, Tony (LNU), for some time and that Tony had asked Cons to accompany Edgerton on this run because Edgerton had made an earlier run which had come up short. The defendant Cons said she had not told Edgerton about this request from Tony. Cons also admitted that she had made several prior runs for Tony and that she knew Tony used to make drug and currency runs for Ruben, also known as Uncle Ben. The government opposes a severance and encourages the court simply to have Cons's statements redacted to the extent they implicate Edgerton.
In deciding a motion to sever, the court weighs the prejudice to a particular defendant caused by the joinder against the important considerations of economy and expedition in judicial interests." United States v. Mabry, 809 F.2d 671, 681 (10th Cir.), cert. denied, 484 U.S. 874 (1987), and overruled on other grounds, Mathews v. United States, 485 U.S. 58 (1988). Severance is a matter of discretion, not of right, and the defendant bears a heavy burden of demonstrating prejudice to her case. United States v. Hollis, 971 F.2d 1441, 1456 (10th Cir. 1992), cert. denied, 507 U.S. 985 (1993). "Courts generally adhere to the principle that those indicted together, especially co-conspirators, should be tried together." United States v. Peveto, 881 F.2d 844, 857 n. 16 (10th Cir.), cert. denied, 493 U.S. 943 (1989) (quotation and citation omitted).
The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant "to be confronted with the witnesses against him." The right of confrontation includes the right to cross-examine witnesses. In Bruton, the Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause when a co-defendant's confession which incriminates both defendants is introduced at their joint trial, even if the jury is instructed to consider that confession only against the non-testifying co-defendant. See Richardson v. Marsh, 481 U.S. 200, 206 (1987) ("[W]here two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand."). " Bruton, . . ., does not hold that defendants in joint trials involving Bruton problems are entitled to separate trial." United States v. Hill, 901 F.2d 880, 883 (10th Cir. 1990). Although separate trials avoid Bruton problems, severance is not required. Id.; see United States v. Ridley, 814 F. Supp. 992, 1000-1001 (D. Kan. 1993) (severance is not compelled when a potential Bruton problem exists). Bruton problems may be avoided by redaction of the co-defendant's statements coupled with the use of limiting instructions. See Richardson v. Marsh, 481 U.S. at 211. "Severance is required only where admission of the statement in its edited form distorts the meaning of the statement or excludes information substantially exculpatory of the declarant." United States v. Comeaux, 955 F.2d 586, 590 (8th Cir.) (quotation and citation omitted), cert. denied, 506 U.S. 845 (1992).
The court finds that Bruton problems exist, but believes that this motion could be mooted by future plea negotiations. At the hearing, the government alternatively requested that in the event of a severance the court should proceed first with the trial of the defendant Cons. The court takes this motion and the government's request under advisement until a date closer to trial, at which time the case will be in a better posture for the court to make a definitive ruling on this motion and request.
The defendant Cons's post-arrest confession clearly implicates the defendant Edgerton. The government has not proffered how it could redact the defendant Cons's admission so as to preserve not only the defendant Edgerton's right to confrontation but also the substantive meaning of the admission.
MOTIONS TO SUPPRESS (Dks. 21 and 23).
The defendant Edgerton, the driver and apparent owner of the car, seeks to suppress all physical evidence seized from the Mercedes-Benz, all statements made by her, and all observations made by law enforcement officers. The defendant Edgerton challenges the constitutionality of the traffic stop and search on several grounds: (1) the initial stop was unlawful as the troopers observed no traffic violation and lacked any reasonable suspicion or probable cause to believe the license tag was not properly displayed; (2) assuming a lawful stop, the detention exceeded the lawful scope and duration of the stop after Trooper Dean read the temporary Colorado tag posted in the rear window; (3) the defendant did not freely and voluntarily consent to the search of the car, as she had objective reasons for believing she was not free to leave; (4) the troopers exceeded the scope of any consent allegedly given; (5) the troopers unlawfully arrested the defendant; and (6) all evidence seized and statements made were the fruit of unconstitutional seizures and searches. The defendant Cons seeks to suppress all evidence seized from the vehicle in which she was a passenger as well as any statements she made subsequent to her arrest. The defendant Cons limits her arguments to the legality of the initial stop and subsequent detention.
Standing of Defendant Cons
Citing United States v. DeLuca, 269 F.3d 1128 (10th Cir. 2001), the defendant Cons asserts she has standing as a passenger to challenge the lawfulness of the stop and the subsequent detention and to seek the suppression of seized evidence that was the alleged fruit of those violations. Conceding the defendant Cons may have standing to challenge the constitutionality of her seizure, the government disputes the defendant's standing to challenge the subsequent search of the car.
"Fourth Amendment rights are personal, and, therefore, `a defendant cannot claim a violation of his Fourth Amendment rights based only on the introduction of evidence procured through an illegal search and seizure of a third person's property or premises." United States v. Deluca, 269 F.3d at 1131 (quoting United States v. Erwin, 875 F.2d 268, 270 (10th Cir. 1989)). Thus, "without a possessory or property interest in the vehicle searched, `passengers lack standing to challenge vehicle searches." Id. (quoting United States v. Eylicio-Montoya, 70 F.3d 1158, 1162 (10th Cir. 1995)). On the other hand, a traffic stop is a seizure that implicates a passenger's Fourth Amendment interests to the same degree as the driver's. United States v. Erwin, 875 F.2d at 270 ("[W]e reject any notion that a vehicular stop detains for Fourth Amendment purposes only the driver simply because the passenger may be free to depart."). For this reason, a defendant passenger may "contest the lawfulness of his own detention and seek to suppress evidence found in the vehicle as the fruit of the [defendant's] illegal detention." United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir.), cert. denied, 531 U.S. 887 (2000). The Tenth Circuit laid out the defendant passenger's burden to prove standing in these terms:
To successfully suppress evidence as the fruit of unlawful detention, a defendant must first establish that the detention did violate his Fourth Amendment rights. See [ United States v.] Shareef, 100 F.3d [1491] at 1500 [(10th Cir. 1996)]. The defendant then bears the burden of demonstrating "a factual nexus between the illegality and the challenged evidence." United States v. Kandik, 633 F.2d 1334, 1335 (9th Cir. 1980). Only if the defendant has made these two showings must the government prove that the evidence sought to be suppressed is not "fruit of the poisonous tree," either by demonstrating the evidence would have been inevitably discovered, was discovered through independent means, or was so attenuated from the illegality as to dissipate the taint of the unlawful conduct. (citations omitted).United States v. Nava-Ramirez, 210 F.3d at 1131.
The defendant Cons did not introduce any evidence nor make any argument that established a factual nexus between her alleged illegal detention and the evidence eventually seized from the car. "At a minimum, a defendant must adduce evidence at the suppression hearing showing the evidence sought to be suppressed would not have come to light but for the government's unconstitutional conduct." United States v. Nava-Ramirez, 210 F.3d at 1131. Just as in Nava-Ramirez and DeLuca, the defendant Cons has failed to show that had she "requested permission or otherwise attempted to depart the scene, [s]he would have been able to leave in . . . [Edgerton's] car." Id. There is no evidence of record to suggest that had Ms. Cons not been detained then the car and Ms. Edgerton would have been released and the troopers would not have found the drugs. See DeLuca, 269 F.3d at 1133. Having failed to satisfy the derivative evidence doctrine that is part of the standing requirement, the defendant Cons is unable to challenge the seizure of the drugs found in the car.
Initial Traffic Stop and Detention
A traffic stop is a seizure under the Fourth Amendment. United States v. Taverna, 348 F.3d 873, 877 (10th Cir. 2003). Akin to investigative detentions, routine traffic stops are analyzed under the investigative detention principles outlined in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). The reasonableness of a stop is a dual inquiry: (1) "whether the officer's action was justified at its inception," and (2) whether the officer's action "was reasonably related in scope to the circumstances that first justified the interference." United States v. Burch, 153 F.3d 1140, 1141 (10th Cir. 1998) (quotation omitted).
In deciding the validity of the initial stop, the court looks at whether it was "objectively justified." United States v. Botero-Ospina, 71 F.3d 783, 788 (10th Cir. 1995) (en banc), cert. denied, 518 U.S. 1007 (1996). To be valid, the officer must have either "`(1) probable cause to believe a traffic violation has occurred, or (2) a reasonable articulable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.'" United States v. Zubia-Melendez, 263 F.3d 1155, 1160 (10th Cir. 2001) (quoting United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999)). The constitutional reasonableness of a traffic stop does not depend on the officer's actual motive in conducting the stop. Whren v. United States, 517 U.S. 806, 812-13 (1996). In short, the initial traffic stop is reasonable if the officer observed a traffic violation or has reasonable articulable suspicion that a traffic or equipment violation occurred. United States v. Nichols, 374 F.3d 959, 964 (10th Cir. 2004).
As he testified, Trooper Dean stopped the Mercedes-Benz because it did not bear a license tag or registration that was clearly visible and clearly legible. While traveling a safe following distance behind the car, Trooper Dean saw something in the rear window, but he could not read it so as to determine whether it was a temporary tag. Only after he walked up to the stopped car and shined his flashlight on the window was the trooper able to see that it was a temporary Colorado registration posted on the left side of the rear window. Contrary to the defendants' efforts to construe Trooper Dean's testimony in other ways, the court understands Trooper Dean to have testified consistently that the stop was conducted because he could not see a license tag properly positioned on the car in a visible and legible condition as required by K.S.A. 8-133. The court understands Trooper Dean to have testified that he also intended to check the validity of any license tag later found posted on the car during the course of the traffic stop.
Certainly, one could read Trooper Dean's testimony as showing some equivocation over his reason for the traffic stop and over when he first recognized the temporary tag in the Mercedes's back window. Judging by the Trooper's demeanor and other testimony, the court believes the equivocation reflects only the Trooper's inexperience as a witness and does not detract from his credibility. In making its findings, the court gave the most weight and reliability to Trooper Dean's own choice of words to describe his reasons for the stop and for what he saw.
Temporary tags must comply with K.S.A. 8-133, and "clearly legible" means the tag on a moving car is capable of being read by an officer in a car immediately following a safe distance behind. United States v. Granados-Orozco, 2003 WL 22213129 (D. Kan. Aug. 26, 2003); see State v. Hayes, 8 Kan. App. 2d 531, 660 P.2d 1387, 1389 (1983) (The statutory requirement for displaying a legible license plate is for the purpose of permitting officers to conduct routine license plate checks). "Officers should not be required to stop vehicles in order to read their tags." Granados-Orozco, 2003 WL 22213129 at *2. The testimony of Trooper Dean establishes that he had probable cause to conduct the traffic stop based on the violation of K.S.A. 8-133.
Lawfulness of Detention
"Generally, an investigative detention must `last no longer than is necessary to effectuate the purpose of the stop.'" United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). Its scope must be carefully tailored to its underlying justification. United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir. 1997), cert. denied, 523 U.S. 1035 (1998). But, "an officer conducting a traffic stop may request vehicle registration and a driver's license, run a computer check, ask about travel plans and vehicle ownership, and issue a citation. United States v. Zubia-Melendez, 263 F.3d at 1161. Upon issuing a citation or warning and determining the validity of the driver's license and right to operate the vehicle, the officer usually must allow the driver to proceed without further delay. Patten, 183 F.3d at 1193; United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997). A longer detention for additional questioning is permissible if the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring, or the initial detention changes to a consensual encounter. United States v. Hunnicutt, 135 F.3d at 1349.
Both defendants cite United States v. McSwain, 29 F.3d 558 (10th Cir. 1994), in arguing that Trooper Dean's authority for stopping the car dissipated when he saw the displayed registration, and that the stop should have ended at this point without any further detention or questioning. The holding in United States v. McSwain, 29 F.3d 558, 561 (10th Cir. 1994), however, is narrow and tightly bound to its facts. In McSwain, the patrolling officer was able to see and determine that there was a temporary registration tag in the car's rear window and made the stop for the sole purpose of verifying the validity of the temporary tag. Once the officer in McSwain approached the car and satisfied himself of the tag's validity, the sole purpose of the stop had been satisfied, and the officer had no other grounds for detaining the car and its occupants further. Id. Thus, the trooper's additional questions and requests "exceeded the scope of the stop's underlying justification." Id. at 561. The court in McSwain went on to distinguish its case and holding from those other "situations in which the officer, at the time he or she asks questions or requests the driver's license and registration, still has some objectively reasonable articulable suspicion that a traffic violation has occurred or is occurring." Id. at 561 (citations omitted). The instant case qualifies as one of those other situations.
The Tenth Circuit and this court have distinguished the holding in McSwain on facts not unlike the present case. See, e.g., United States v. DeGasso, 369 F.3d 1139 (10th Cir. 2004) (Unlike McSwain, the violation here was "that the lettering on the license plate was not `clearly visible,' which remained true even after the trooper approached the truck and was able, at that point, to read it."); United States v. Poke, 81 Fed. Appx. 712, 714-15, 2003 WL 22701661 (10th Cir. Nov. 17, 2003) (Because the officer could not see the vehicle's temporary tag as it traveled along the interstate, the officer "continued to have an objectively reasonable suspicion that a traffic violation was occurring."); United States v. Concepcion-Ledesma, 2004 WL 1088772 at *4-*5 (D. Kan. Apr. 21, 2004) ("Because defendant's registration tag was not clearly visible to Trooper Ranieri until he approached the vehicle on foot, the statute [K.S.A. 8-133] was violated." The officer lawfully detained and questioned the defendants.); United States v. Granados-Orozco, 2003 WL 22213129 at * 4-*5 (D. Kan. Aug. 26, 2003) (" McSwain is not controlling. At the time Trooper Morris question and detained defendants, he continued to believe that defendants had violated a traffic law of the State of Kansas. Trooper Morris's reasonable suspicion was not dispelled by his view of the temporary tag even when he was on foot.") (and cases cited and discussed therein).
As the facts and law establish here, the violation for which the stop was made was that the car as it was traveling at night did not have a license plate that was clearly visible and clearly legible. The probable cause for this stop did not dissipate when Trooper Dean approached on foot and used his flashlight to read the tag. Having objectively reasonable suspicion that a traffic violation was occurring, Trooper Dean did not violate the defendant's Fourth Amendment rights with the continued detention and questioning.
The defendants next argue that after all lawful purposes for the traffic stop were accomplished, Trooper Dean unlawfully extended the detention with questions and a request for consent to search. The evidence does not show the Trooper Dean to have extended the traffic stop with unrelated or inappropriate questions. Following the traffic stop, the government argues a consensual encounter was established.
"A consensual encounter is the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement officer." United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996). Supreme Court precedent is clear "that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free `to disregard the police and go about his business,' the encounter is consensual.'" Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). "A police officer does not have to inform the citizen they are free to disregard any further questioning for the encounter to be consensual." United States v. Manjarrez, 348 F.3d 881, 886 (10th Cir. 2003) (citation omitted), cert. denied, 124 S. Ct. 1622 (2004). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968). In deciding if a police-citizen encounter amounts to a seizure, "the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would `have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" United States v. Hill, 199 F.3d 1143, 1147 (10th Cir. 1999) (quoting Bostick, 501 U.S. at 437), cert. denied, 531 U.S. 830 (2000). Put another way, "[a] person is seized only when that person has an objective reason to believe he or she is not free to end the conversation with the officer and proceed on his or her way." United States v. Hernandez, 93 F.3d at 1498 (citation omitted). "[E]very case turns on the totality of the circumstances presented." United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994). Factors relevant to whether a reasonable person would not feel free to terminate the encounter with police include: the threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; prolonged retention of a person's personal effects; a request to follow the officer to the station; interaction in a nonpublic place; and absence of other members of the public. United States v. Sanchez, 89 F.3d 715, 718 (10th Cir. 1996). No one factor is dispositive in this analysis. United States v. Glass, 128 F.3d 1398, 1406 (10th Cir. 1997). "An officer's request for consent to search does not taint an otherwise consensual encounter `as long as the police do not convey a message that compliance with their request is required.'" United States v. Pena, 143 F.3d 1363, 1367 (10th Cir.) (quoting United States v. McCurdy, 40 F.3d 1111, 1119 (10th Cir. 1994)), cert. denied, 525 U.S. 903 (1998).
Reasonable persons would have believed they were free to leave after Trooper Dean returned the driver's license and car registration, wished them a safe trip, and then took a short step away and to the rear of the car. While wishing someone a safe trip is not quite the same as telling someone they are free to go, they convey a similar message in the context of an officer who makes these remarks at the obvious close of a traffic stop. By taking her license and registration and putting them away, Ms. Edgerton revealed to Trooper Dean that she understood the traffic stop had been completed. The court finds that reasonable persons deciding whether they were free to leave would give more weight to the officer's statement wishing them a safe trip and the officer's conduct in stepping away from the car than to the patrol car's activated emergency lights. It is unlikely that any person would believe they were fleeing an officer just because of the activated emergency lights when the officer has returned all the paperwork, wished them a safe trip and stepped away from the car. There is no evidence of the troopers making a coercive show of authority by their actions or words as to lead the defendants into reasonably believing that Trooper Dean's questions had to be answered before they could leave. The court concludes that reasonable persons in the defendants' situation would have felt free to refuse the trooper's request to answer additional questions and to leave the scene.
Consent to Search
The defendant Edgerton denies that she freely and voluntarily consented to the troopers' search of her car. If the person in control of a car voluntarily consents to its search, the officers may search the car without a warrant and not violate the Fourth Amendment. United States v. Taverna, 348 F.3d at 878. Voluntariness is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). A court makes this determination without presuming the consent was voluntary or involuntary. United States v. Hernandez, 93 F.3d at 1500.
For this exception to apply, the government must prove by a preponderance of the evidence that consent was freely and voluntarily given. United States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993). The government does not discharge its burden "by showing no more than acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 549 (1968). Under the two-part test for determining whether consent to search was given, the government must: "(1) proffer clear and positive testimony that consent was unequivocal and specific and freely and intelligently given; and (2) prove that this consent was given without implied or express duress or coercion." United States v. Taverna, 348 F.3d at 878. This determination is made upon considering the totality of the circumstances. Schneckloth, 412 U.S. at 225-27.
The videotape and Trooper Dean's testimony are clear and positive proof that the defendant Edgerton, when asked for consent to search, answered unequivocally and specifically, "sure." The evidence of record further confirms that Ms. Edgerton's consent was freely and intelligently given, as she did not appear to be under the influence of any alcohol or drugs or to be suffering from any mental disease or defect. Nor is there anything on the videotape or in Trooper Dean's testimony to even suggest this consent could be the product of implied or express duress or coercion. There were no threats or promises made, and no coercive means employed. The court finds that Ms. Edgerton's consent to search was freely and voluntarily given, and the troopers did not use any show of force or display of weapons in obtaining this consent. While there was a second trooper present and the traffic stop occurred late at night, the court is not convinced that a reasonable person who was accompanied by a passenger in a traffic stop along Interstate 70 would find this atmosphere intimidating and coercive.
Scope of Consent
The defendant Edgerton next argues that the lengthy, dismantling search of her car in three different locations exceeded the scope of her purported consent to a brief search along the interstate. The defendant further denies that her consent was given with knowledge that Trooper Dean would have the vehicle moved to other sites to complete the search. The defendant insists the officers did not obtain her voluntary consent to have the car moved to the KDOT office for the search of her gas tank with a fiber optic scope.
"The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of `objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect." United States v. Elliott, 107 F.3d 810, 814 (10th Cir. 1997) (quoting Florida v. Jimeno, 500 U.S. 248, 251(1991)). The court looks at the totality of the circumstances to determine whether a search remained within the bounds of the consent given. United States v. Hooper, 47 Fed. Appx. 531, 534 (10th Cir. 2002). Scope "is generally defined by its expressed object," and "is limited by the breadth of the consent given." United States v. Elliott, 107 F.3d at 814-15. Failure to object is an indication that the search did not exceed the scope of consent. See Pena, 143 F.3d at 1368. Where the expressed purpose of the search is to look for drugs or contraband, "that certainly implies that the officer could look wherever drugs might be hidden." United States v. Ramstad, 308 F.3d 1139, 1146-47 (10th Cir. 2002) (citation omitted).
The defendant Edgerton expressly consented to the search of her trunk, and her consent to this search was not predicated on Trooper Dean's later representation that they would be brief. This case is not like United States v. Wald, 216 F.3d 1222, 1228 (10th Cir. 2000), where the officer's request for a "quick look" was construed to be a "limited request to search." United States v. Rosborough, 366 F.3d 1145, 1151 (10th Cir. 2004). Because the defendant Edgerton gave a general authorization to search, her subsequent failure to object when the search exceeded what she claims was a more limited consent "is an indication the search was within the scope of consent." United States v. Wald, 216 F.3d at 1228 (citation omitted).
The defendant Edgerton also argues that her consent to drive the car to KDOT office at exit 328 for an additional search of her gas tank was not freely and voluntarily given. The evidence of record shows otherwise. Without any threats, promises or coercive means, Trooper Dean asked Ms. Edgerton if she would drive to a different location so that they could take a closer look at the gas tank. Ms. Edgerton answered unambiguously and specifically, "Well, if you want to look at my gas tank, you go right ahead." When Trooper Dean made a clarifying request that she follow them to this other location, Ms. Edgerton replied, "no problem." The court finds that the defendant voluntarily consented to driving her car to this other location for a "closer look" of her gas tank.
Alternatively, the court finds the troopers had reasonable suspicion of a secret compartment based on what appeared to be recent scratch marks to the gas tank's exterior, the tank nozzle sitting in a crooked position, the defendants' excessive nervousness and the strong odor of an air freshner. With this reasonable suspicion, the troopers lawfully could detain the defendant's car as they investigated their suspicion of a secret compartment.
Probable Cause
Case law firmly recognizes that probable cause to search a car may evolve from the circumstances that occur during the traffic stop. United States v. West, 219 F.3d 1171, 1178 (10th Cir. 2000). When officers have probable cause to believe a vehicle contains contraband, they may search it without first obtaining a warrant. Florida v. White, 526 U.S. 559, 563-64 (1999). The search may take place by the side of the road, Chambers v. Maroney, 399 U.S. 42, 48 (1970), or after the vehicle has been impounded, Florida v. Meyers, 466 U.S. 380, 382 (1984); United States v. Anderson, 114 F.3d at 1066, or after an officer directs the driver to follow him to the station, United States v. Lopez, 777 F.2d 543, 550 (10th Cir. 1985). "Probable cause to search a vehicle is established if, under the totality of the circumstances there is a fair probability that the car contains contraband or evidence." United States v. Nielsen, 9 F.3d 1487, 1489-90 (10th Cir. 1993) (internal quotation marks omitted).A warrantless arrest must be supported by probable cause. See United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir.), cert. denied, 525 U.S. 978 (1998). The substantive probable cause standard oft-stated in the Tenth Circuit is:
An officer has probable cause to arrest if, under the totality of circumstances, he learned of facts and circumstances through reasonably trustworthy information that would lead a reasonable person to believe that an offense has been or is being committed by the person arrested. Probable cause does not require facts sufficient for a finding of guilt; however, it does require more than mere suspicion.United States v. Patane, 304 F.3d 1013, 1016 (10th Cir. 2002) (quoting United States v. Morris, 247 F.3d 1080, 1088 (10th Cir. 2001)), rev'd on other grounds, 124 S. Ct. 2620 (2004). "`Probable cause must be evaluated in light of circumstances as they would have appeared to a prudent, cautious, trained police officer.'" United States v. Snow, 82 F.3d 935, 942 (10th Cir. 1996) (quoting United States v. Morgan, 936 F.2d 1561, 1568 (10th Cir. 1991), cert. denied, 502 U.S. 1102 (1992)); see generally Ornelas v. United States, 517 U.S. 690, 700 (1996) (indicating "that a police officer may draw inferences based on his own experience in deciding whether probable cause exists"); United States v. Santana-Garcia, 264 F.3d 1188, 1192 (10th Cir. 2001) ("We measure probable cause against an objective standard and evaluate it in relation to the circumstances as they would appear to a prudent, cautious and trained police officer.").
As the Tenth Circuit has said, "[i]t is well established that evidence of a hidden compartment can contribute to probable cause to search." United States v. Mercado, 307 F.3d 1226, 1230 (10th Cir. 2002) (probable cause where evidence of hidden compartment and defendant's inability to explain employment, unusual travel plans, and efforts to keep the vehicle inaccessible to the officer); see, e.g., United States v. Anderson, 114 F.3d at 1066 (probable cause when evidence of a tampered gas tank combined with "slightly conflicting" versions of travel plans and scent of air freshener); United States v. Williams, 7 Fed. Appx. 876, 886, 2001 WL 359490, *8 (10th Cir. Apr. 11, 2001), cert. denied, 534 U.S. 1071 (2001) (probable cause found where evidence of hidden compartment and conflicting travel stories and insufficient proof of right to operate the car); United States v. Smith, 166 F.3d 1223, 1999 WL 34826, *2 (10th Cir. Jan. 28, 1999) (Table) (lack of driver's license or proof of insurance, evasive answers to police questions, and discovery of hidden compartment constitute probable cause); United States v. Chavez-Ceja, 161 F.3d 18, 1998 WL 654986, *3 (10th Cir. Sept. 21, 1998) (Table) (extended search justified by probable cause based on evidence of a hidden compartment and the strong smell of air freshener and extremely nervous behavior).
The Tenth Circuit recently identified factors relevant in evaluating evidence of a hidden compartment:
Whether probable cause to search a vehicle can be based on evidence of a hidden compartment depends on two factors: (1) the probative value of the evidence-that is, the likelihood that there really is a hidden compartment; and (2) the likelihood that a vehicle with a hidden compartment would, in the circumstances, be secreting contraband. In this case, the second factor is not a concern. If the vehicle had a hidden compartment, it was highly likely to contain contraband. Jirak testified that he had found evidence of drug activity whenever a hidden compartment had been discovered. This testimony is not challenged on appeal and apparently was credited by the district court. Moreover, this expert experience conforms with common sense; it is hard to conceive of a legitimate use for a large hidden storage compartment in any vehicle, let alone one with the cargo space of a Ford Expedition. We also note that it appeared that the vehicle had recently crossed into this country from Mexico, a common origin of illicit drugs.United States v. Jurado-Vallejo, ___ F.3d ___, 2004 WL 1859937, at *3 (10th Cir. Feb. 10, 2004).
The evidence is sufficient in this case on both factors. On the first factor, the troopers suspected an altered gas tank from evidence that the carpeted trunk wall had been removed recently, that the tank had fresh scratch marks on its outside, that the tank had a new gas cap, that the tank's nozzle sat crooked in the car body's designed opening, and that a gas can filled with fuel was riding in the trunk. Their observations through the fiber optic scope confirmed their suspicions. There was a "sloppy" weld inconsistent with the manufacturer's welds and the gas tank was narrower and, thus, smaller than would be expected for a car of this side. The altered tank meant that extra space for a secret compartment had been created between the back seat and the gas tank. As for the second factor, there does not appear to be any logical legitimate reason for a Mercedes-Benz passenger car to have a smaller than average gas tank or to have additional storage space accessible only by removing the back seats. Considering the size, location and accessibility of this secret compartment, a person equipped with common sense, Trooper Dean's training, and Trooper Ranieri's apparent experience would reasonably believe that contraband was hidden in this secret compartment.
Like the Tenth Circuit decisions cited above, there are other factors present here to bolster the probable cause determination. The defendant displayed an unusually high level of nervousness that remained high throughout the traffic stop. See United States v. West, 219 F.3d at 1179 (nervousness is a factor of "limited significance" but may carry "somewhat more weight" when "extreme and continued"). Trooper Dean detected the strong odor of air freshener coming from the car. See United States v. West, 219 F.3d at 1178 ("scent of air freshener is properly considered as a factor in the probable cause analysis"). The defendant Edgerton appeared talkative and displayed overly friendly behavior. See United States v. Ozbirn, 189 F.3d at 1200 n. 4 (overly friendly behavior is a factor that may "bolster the finding of probable cause"). The use of caffeinated energy drinks to stay awake while driving in the hours shortly after midnight suggests a person is more anxious to reach her destination than concerned about traveling without adequate regular rest. See United States v. Robinson, 16 Fed. Appx. 966, 2001 WL 912859 at *1 (10th Cir. Aug. 14, 2001) (suspicion raised by presence of caffeine pills because drug traffickers use these substances "to stay awake, in order to arrive at destination more quickly."). The presence of a gas can in the trunk along with suitcases was unusual to Trooper Dean, because the fuel odor obviously would remain on the stored clothing. Assuming an operable fuel gauge in an average fuel tank on a car traveling along I-70 in Kansas, there is arguably little need for a gas can. Having both the gas can and the suitcases stored in the trunk reveals not only the defendants' perceived need for the additional gas but also the defendants' desire to show with the suitcases a legitimate use for the trunk space. Courts should "defer to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions." United States v. McRae, 81 F.3d 1528, 1534 (10th Cir. 1996) (quotations omitted).
Having probable cause to believe that the car had a secret compartment that contained contraband, the troopers lawfully could direct the defendants to take the car to Junction City so that a search of the hidden compartment could be completed under better light. Additionally, the officers could hold the defendants on the weight of this probable cause, and they also could detain one or both of the defendants during this trip and subsequent search for reasons of officer safety. The court denies the defendants' motions to suppress for all the reasons stated above.
IT IS THEREFORE ORDERED that the defendant Edgerton's Motion to Disclose Expert Testimony (Dk. 22) is granted insofar as the government must furnish the defendants with a written summary that complies with Rule 16 no later than two weeks prior to trial;
IT IS FURTHER ORDERED that the defendant Edgerton's Motion for Severance (Dk. 25) is taken under advisement until a date closer to trial;
IT IS FURTHER ORDERED that the defendant Edgerton's Motion to Suppress Evidence (Dk. 23), and the defendant Cons's Motion to Suppress Evidence and Statements (Dk. 21) are denied.