Opinion
Case No. 02-40073-01/02-JAR
December 16, 2002.
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTIONS
This matter is before the Court on several motions filed by the defendants. Defendant Vicente J. Melenderz ("Melenderz") filed a Motion to Suppress (Doc. 57). Defendant Benjamin C. Reyes ("Reyes") filed a Request to Join co-defendant's Motions (Doc. 43), Motion for Discovery and Inspection (Doc. 45), Request for Pre-Trial Notice of Evidence of Other Crimes, Wrongs or Acts (Doc. 42), Motion for Witness Statements (Doc. 49), Motion to Compel Disclosure of Exculpatory Evidence (Doc. 47), Motion in Limine — Prior Convictions (Doc. 53), Motion in Limine — Evidence of Other Crimes, Wrongs or Acts and a Motion to Prohibit Prior Jury Service in Similar Cases (Doc. 51). Following a hearing held on December 2, 2002, and review of the parties' filings, the Court is now prepared to rule.
I. Facts
The defendants were traveling along I-35, near Emporia, Kansas, at approximately 4:00 a.m. on June 13, 2002. Deputy Knowles of the Lyon County Sheriff's Department pulled over the silver Ford Windstar minivan defendants were driving for a tag light violation. Deputy Knowles approached the vehicle and observed two males. The deputy noticed that the back seat was missing from the van and that no luggage could be seen. Melenderz was driving the vehicle and the deputy asked him to produce identification. Melenderz complied. Deputy Knowles and Melenderz waited in the patrol vehicle while the deputy ran a license and criminal history check. While waiting, Deputy Knowles asked Melenderz about his travel plans, to include where he was going and how long he was intending to stay. Melenderz told Deputy Knowles that they were going to Indiana to check on his grandmother. Melenderz said they were coming from Texas and driving his mother's van. Deputy Knowles also asked about the identity of his passenger, Reyes.
After receiving a response on the license and criminal history check, Deputy Knowles showed Melenderz the inoperative tail lamp, which came back on as Deputy Knowles touched the handle near the license tag. Deputy Knowles then returned Melenderz's documents to him and told him that he was free to leave. At this point, both the deputy and Melenderz were standing at the back of the van. Melenderz was standing between the license plate and the passenger side tail lamp, facing in towards the roadway. Deputy Knowles was standing slightly more centered with the license plate and facing the back of the van, with Melenderz to his right. Deputy Knowles was not blocking the passageway of Melenderz to return to the driver's door. Deputy Knowles did not make any movement to return to his vehicle. The tone of the conversation was friendly and neither Deputy Knowles nor Melenderz appeared agitated.
At this point, Deputy Knowles asked if he could search the van. Melenderz gave consent. During the search, another deputy arrived and Deputy Knowles asked the back up officer to place both defendants in handcuffs. Deputy Knowles noticed that the rubber stripping near the door panel was loose and that fresh metal shavings were on the floorboard. He also noticed that the door appeared heavier than normal. Deputy Knowles looked inside the door panel and could see what appeared to be a white sheet, which he suspected was acting as packing for something. The deputy found packages of a white powder, which he suspected to be cocaine or methamphetamine inside the door panel. Both individuals were arrested.
II. Request to Join Co-Defendant's Motions
Reyes requests that he be allowed to join in the motions of his co-defendant, Melenderz. The Court grants this request.
III. Motion to Suppress
Melenderz filed a motion to suppress statements made to Deputy Knowles and evidence seized from the vehicle in this case. Reyes joined in any motions of Melenderz; however, as a passenger in the vehicle, he does not have standing to contest the legality of the search. Therefore, the Court will address the challenge made by Melenderz as arguments of Melenderz alone. Melenderz does not contest the legality of the stop.
Melenderz argues that the questioning during his traffic stop was outside the scope of the stop and that such a constitutional violation tainted the subsequent consent to search. Deputy Knowles questioned Melenderz about his travel plans. The Tenth Circuit has held that questions about travel plans are within the permissible scope of a traffic stop. The defendant in Williams made the same legal argument that Melenderz makes. Williams did not contend that the questions lengthened his detention so as to make it unreasonable; rather, he argued that the nature of the questions were outside the scope of the traffic stop. Melenderz's traffic stop was relatively short. The allegedly impermissible questions were asked while the deputy waited on a license check from dispatch. Thus, they did not increase the length of the detention. The questions about Melenderz's travel plans were related to the reason for the stop. Other decisions, including United States v. Quiroz decided by this Court, have held that questions about travel plans may expound on the reason for the violation and other aspects related to highway safety.
United States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001).
No. 01-40120-01, 2002 WL 1067453 (D.Kan. Mar. 6, 2002).
United States v. West, 219 F.3d 1171, 1176 (10th Cir. 1998) (stating that "questions about travel plans are routine and `may be asked as a matter of course without exceeding the proper scope of a traffic stop' ") (quoting United States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir. 1996)); see also United States v. Santana-Garcia, 264 F.3d 1188, 1192-93 (10th Cir. 2001) (quoting West, 219 F.3d at 1176); United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir. 1989).
Melenderz attempts to distinguish those cases. He argues that the defendants in prior cases were stopped for moving violations, which he opines allows the court to determine that questions about travel plans are within the scope of the stop as they may explain why one would be speeding or driving erratically. Melenderz argues that the same logic does not apply in cases of equipment violations. The Court finds this argument without merit. Statutes regulating equipment on vehicles are designed to ensure safety on the roadways. Questions regarding a driver's travel plans can allow the officer to determine how soon the driver could have the violation fixed or inversely, how long he would have to continue to drive with it malfunctioning.
The line of cases supporting questions about travel plans during routine traffic stops apply equally to stops for moving violations as they do to stops for equipment violations. Melenderz's motion to suppress statements is denied.
Melenderz argues that his consent was tainted by the allegedly impermissible questions during the stop. Because this Court found the questions were permissible, this argument is rejected.
Melenderz's motion does not challenge the voluntariness of his consent. The video tape of the stop shows that the conversation between Deputy Knowles and Melenderz was of a friendly tone and not coercive. It lasted for a very short time. When Deputy Knowles returned the documents and asked for consent, Melenderz gave it without equivocation or pressure from Deputy Knowles. Nothing in the evidence suggests the consent was anything but voluntary.
IV. Motion to Prohibit Prior [Interim] Jury Service
Reyes asks the Court to prohibit any juror selected for this trial from serving on a jury hearing similar facts, similar legal issues, the same government witnesses or the same prosecutor. Reyes posits that failing to do so violates the defendant's right to exercise his peremptory challenges in selecting a fair jury. The Tenth Circuit agrees with the Reyes' argument; however, it is unnecessary for this Court to decide the motion. The jury selection process used in the District of Kansas, sitting in Topeka, Kansas, does not select jurors in advance of trial for the purpose of hearing several cases. Jurors are chosen from the jury pool immediately prior to the trial. Therefore, this motion is denied as moot.
United States v. Iribe-Perez, 129 F.3d 1167, 1170 (10th Cir. 1997) (citing United States v. Franklin, 700 F.2d 1241, 1242 (10th Cir. 1983)).
V. Request for Pre-Trial Notice of Evidence of Other Crimes, Wrongs and Acts
Reyes requests the government provide notice of its intent to use any prior crimes, wrongs or acts of his. The government acknowledges its duty to give notice of any intent to use such evidence and agrees to do so.
VI. Motion in Limine — Evidence of Other Crimes, Wrongs or Acts
Reyes requests that any evidence of other crimes, wrongs or acts allegedly committed by him not be introduced into evidence until such time as a hearing is held on the same outside the presence of the jury. While this motion is somewhat premature, in that it does not reference what specific evidence the defendant seeks to exclude and the government has yet to file notice of the same, the government agrees to such a hearing. Further, in its response, the government notes that it has located prior convictions of Reyes and will provide notice of those once the government obtains the records from other jurisdictions. A hearing on the admissibility of such evidence will be held once the government receives the records and files notice of its intent to use the same. This motion is granted.
VII. Motion to Compel Disclosure of Exculpatory Evidence
Reyes moves the Court to compel the government to turn over exculpatory evidence. The government agrees to turn over such information pursuant to its duty under the law and recognizes the continuing duty to provide the same. This motion is denied as moot.
VIII. Motion in Limine — Prior Convictions
Reyes moves the Court for an order preventing the government from using any prior convictions of Reyes, his co-defendant or other witnesses until a hearing is held outside the presence of the jury. The government responds in agreement, though has yet to offer such evidence. As this motion is also premature, it is denied as moot but may be renewed if and when the government makes such an offer.
IX. Motion for Discovery and Inspection
Reyes filed a motion to compel discovery by the government. The government responds that such an agreement was already entered in the Omnibus Report (Doc. 26) filed herein, and that the government is complying with the same. Thus, this motion is denied as moot. If Reyes seeks information outside the purview of the Omnibus Report, he may make a request to the government or seek an order from this court, if necessary, setting out with more specificity, the information he seeks.
X. Motion for Witness Statements
Reyes requests an order compelling the government to turn over statements of witnesses. The request seeks information which defense counsel is entitled to under the Jenks Act, 18 U.S.C. § 3500. The government has agreed to turn over the statements both in its reply and in the Omnibus Report (Doc. 26). Thus, this motion is granted.