Opinion
Case No. 04-40052-JAR.
January 27, 2005
MEMORANDUM AND ORDER DENYING MOTION TO SUPPRESS
On January 4, 2005, and continuing on January 21, 2005, the Court held a hearing on defendant's motion to suppress (Doc. 13) all evidence seized from the search of a hidden compartment in defendant's pickup truck. Having reviewed the evidence and arguments presented by the parties, the Court is now prepared to rule.
Facts
At approximately 12:07 p.m. on April 28, 2004, Russell County Sheriff's Sergeant Kelly Schneider was on patrol when he observed a white 1989 Ford F-250 pickup truck with two utility boxes traveling eastbound on I-70 in Russell County. Sergeant Schneider testified that he saw the pickup weave across the center line on two separate occasions within approximately one hundred yards, and conducted a traffic stop of the truck. Schneider testified that he takes into consideration the fact that it is typically windy along I-70, and that he watches semi-trailer trucks to see if they are blowing across the lanes. He further testified that he did not notice the semis having a problem with the wind that day. Review of the video tape of the stop shows it was a clear, sunny day; the wind was blowing, but not to extremes.
The truck was driven by defendant, Jesus Mendez. Sergeant Schneider approached the passenger side of truck and commented to defendant that "you're all over," and asked for his license and registration. Defendant testified that Schneider did not explain why he pulled him over or ask him why he crossed the line. Defendant provided a California license that identified him as Jesus Mendez and registration that showed the truck was registered to Anthony Rodriguez of Collinsville, Illinois. Schneider testified that he noticed that defendant appeared to be exceedingly nervous and that his hands shook when he handled the registration.
Defendant told Sergeant Schneider that he had been working construction in a Kansas town about an hour away, but he could not recall the name of the town. Schneider noticed there was no luggage in the truck, merely a cooler, and that the truck utility box appeared to recently have been painted.
Sergeant Schneider returned to his patrol car and checked defendant's license and registration, both of which were valid. Schneider then returned to the truck, issued defendant a verbal warning for failing to maintain a single lane of traffic and returned the license and paperwork to defendant. Schneider then told defendant to be careful and to have a safe trip, turned away from defendant and began to walk away from the truck, taking two or three steps. He then turned back around and asked defendant if he could ask another question. Defendant responded that he could, and Schneider explained that he had seen a great deal of illegal contraband, such as narcotics, being transported on I-70. He then asked if defendant had anything like that in his vehicle, and defendant replied that he did not. Schneider then asked if he could search the truck and defendant said yes. Defendant got out of the truck and began unlocking compartments on the side of the truck's utility box. Schneider asked defendant if he had put a new box on the truck and defendant replied he had not.
Defendant testified that he is a good driver and did not cross the line or weave. Defendant testified that when Sergeant Schneider asked for his consent to search the truck, he felt that he was still detained and was not free to go. He testified that he consented to the search because he thought he did not have a choice and the officer would search it anyway. If he drove off, defendant testified, Schneider would chase him and pull him over again. Defendant also testified that he unlocked certain compartments in an effort to "limit the scope" of Schneider's search of the truck. Defendant conceded that Schneider was not confrontational or threatening, but polite and mild mannered during the entire stop. He also conceded that in January of 2004, he had been stopped in Texas for failure to maintain his lane, also while driving a pickup truck. Defendant testified that he never revoked his consent, nor did he ever tell Schneider that he could not search outside the utility boxes.
Sergeant Schneider testified that during the search, he noticed that there was an approximate three-inch void in the floor of the utility box, which coupled with the fresh paint, indicated a false compartment. Schneider testified that in his experience, the vast majority of vehicles with false compartments contain narcotics. Schneider advised defendant that he believed there was a false compartment in the utility box, and that he was going to retrieve his police service dog, Andor, to sniff the exterior of the truck. Schneider asked defendant to stand down in the ditch while he searched, and defendant complied. Andor alerted to and indicated at the rear floor area of the utility box, which indicated to Schneider that the odor of narcotics was present. Schneider notified defendant that the dog had detected the odor of narcotics and that defendant needed to follow him to the Sheriff's office. Defendant complied with Schneider's instructions. Upon gaining access to the false compartment of the utility box, Schneider and other officers found fifty-eight packages of marijuana, with a total weight of 199.45 pounds. Analysis
"`A traffic stop is a "seizure" within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention quite brief.'" The principles of Terry v. Ohio apply to such traffic stops. Thus, the reasonableness of a stop depends on "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place."
United States v. Holt, 264 F.3d 1215, 1220 (10th Cir. 2001) (en banc) (quoting United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998) (further quotation omitted)).
392 U.S. 1 (1968).
Id. at 19-20.
1. Initial Traffic Stop and Detention
Tenth Circuit cases establish that "a detaining officer must have an objectively reasonable articulable suspicion that a traffic violation has occurred or is occurring before stopping [an] automobile." Here, Sergeant Schneider testified that he saw the vehicle cross over the white center line two times and that he stopped defendant for a violation of K.S.A. § 8-1522. That statute provides:
United States v. Cervine, 347 F.3d 865, 869 (10th Cir. 2003); United States v. Soto, 988 F.2d 1548, 1554 (10th Cir. 1993).
Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules . . . shall apply: a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
Defendant contends that Sergeant Schneider lacked reasonable suspicion to stop him and challenges the factual basis for the traffic stop, testifying that he did not cross the line and that Sergeant Schneider did not question him as to why he had crossed the line when he pulled him over. The government bears the burden of proving that its actions were justified, as the stop in this case was a warrantless seizure. In this case, the government must prove by a preponderance of the evidence that Sergeant Schneider had a reasonable articulable suspicion that a traffic violation occurred. The Tenth Circuit has held that "under the language of the Kansas statute, when an officer merely observes someone drive a vehicle outside the marked lane, he does not automatically have probable cause to stop that person for a traffic violation." Rather, "the court must conduct a fact-specific inquiry into `all the surrounding facts and circumstances to determine whether the officer had the probable cause necessary to justify the stop.'"
United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994).
United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc), cert. denied, 518 U.S. 1007 (1996).
United States v. Ozbirn, 189 F.3d 1194, 1198 (10th Cir. 1999).
United States v. Zubia-Melendez, 263 F.3d 1155, 1161 (10th Cir. 2001) (quoting Ozbirn, 189 F.3d at 1198).
Here, the Court must weigh the testimony of Sergeant Schneider, who stated that he observed the pickup truck swerve across the center line twice, against the testimony of defendant, who said that he was a good driver and did not cross the line. The Court concludes that under the facts and circumstances of this case, Sergeant Schneider had reasonable suspicion to stop defendant for an observed violation of K.S.A. § 8-1522. While the video indicates there was some wind, Schneider testified that he saw the truck weave across the line twice within one hundred yards and that other vehicles were not having problems staying between the lines. The video does not contradict Schneider's testimony that the wind was not strong enough to cause the defendant's car to weave twice across the center line. Moreover, the stretch of I-70 on which defendant was traveling was flat and straight, and the officer did nothing to cause the vehicle to veer over the line. An objective analysis of all the surrounding facts and circumstances thus suggests that the officer had reasonable suspicion to stop defendant for a violation of K.S.A. § 8-1522.
See United States v. Gregory, 79 F.3d 973 (10th Cir. 1996) (road was mountainous and winding); United States v. Ochoa, 4 F.Supp.2d 1007, 1012 n. 4 (D. Kan. 1998) (officers either caused or contributed to vehicle veering outside the lane).
See United States v. Zabalza, 346 F.3d 1255, 1258 (10th Cir. 2003) (officer who witnessed defendant's vehicle cross the center line twice had more than the necessary objectively reasonable articulable suspicion that defendant had committed a traffic violation).
At the evidentiary hearing, defendant abandoned his argument that Sergeant Schneider's proffered reason for the stop was pretext because, in fact, the officer was engaged in racial profiling. Defendant has the burden of proof on this issue he raised in his motion to suppress. Defendant has not met that burden and the Court rejects this argument.
Defendant is Hispanic.
See United States v. Armstrong, 517 U.S. 456, 465 (1996).
2. Consensual Encounter
Even if the initial stop of defendant's vehicle was legitimate, the detention must "last no longer than is necessary to effectuate the purpose of the stop." Its scope must be carefully tailored to its underlying justification. 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. 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. 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. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)).
United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir. 1997), cert. denied, 523 U.S. 1035 (1998).
Zubia-Melendez, 263 F.3d at 1161.
Patten, 183 F.3d at 1193; United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997).
United States v. Hunnicutt, 135 F.3d at 1349.
"A consensual encounter is the voluntary cooperation of a private citizen in response to noncoercive questioning by a law enforcement officer." 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.'" "A police officer does not have to inform the citizen they are free to disregard any further questioning for the encounter to become consensual." "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."
United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996).
Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)).
United States v. Manjarrez, 348 F.3d 881, 886 (10th Cir. 2003) (citation omitted), cert. denied, ___ U.S. ___, 124 S.Ct. 1622 (2004).
Terry v. Ohio, 392 U.S. at 19 n. 16.
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.'" In other words, "[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." "[E]very case turns on the totality of the circumstances presented." Factors relevant to whether a reasonable person would not feel free to terminate the encounter with police include: 1) the threatening presence of several officers; 2) the brandishing of a weapon by an officer; 3) some physical touching by an officer; 4) use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; 5) prolonged retention of a person's personal effects; 6) a request to follow the office to the station; 7) interaction in a nonpublic place; 8) and absence of other members of the public. No one factor is dispositive in this analysis. "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. Hill, 199 F.3d 1143, 1147 (10th Cir. 1999) (quoting Bostick, 501 U.S. at 437), cert. denied, 531 U.S. 830 (2000).
United States v. Hernandez, 93 F. 3d at 1498 (citation omitted).
United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994).
United States v. Sanchez, 89 F.3d 715, 718 (10th Cir. 1996).
United States v. Glass, 128 F.3d 1398, 1406 (10th Cir. 1997).
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).
The Court concludes that a reasonable person would have believed he was free to leave after Sergeant Schneider returned the license and registration, wished him a safe trip, and then took a short step away from the car. Although wishing a traveler a safe trip is not quite the same as telling him he is free to go, there is no evidence of a coercive show of authority by Sergeant Schneider's actions, tone of voice, or words such as would lead the defendant to reasonably believe that he had to answer the officer's questions before he could leave. Further, the testimony of both Sergeant Schneider and defendant is clear that the defendant gave unequivocal consent to search. In fact, defendant assisted Schneider by unlocking the storage boxes on either side of the truck bed, although he testified that he did so in an effort to "limit the scope" of the officer's search; this would have bypassed a hidden compartment that ultimately was found to contain marijuana. The video reveals that the defendant never revoked his consent, even after defendant was informed that Schneider suspected a false compartment and was going to use the drug dog. There is simply no evidence of a coercive show of authority by Sergeant Schneider.
Assuming arguendo the roadside detention was non-consensual, Sergeant Schneider had a reasonable and articulable suspicion of criminal activity making the extended detention lawful. After stopping defendant, Schneider observed that defendant was extremely nervous, with shaky hands; defendant told Schneider he was in Kansas for one day to work construction, but could not remember the name of the town where he had worked; defendant had a California driver's license, the truck had Illinois tags, was returning to Illinois, but appeared to have no luggage; the vehicle registration was not in defendant's name; and there appeared to be fresh paint on the utility box. Schneider's observations, taken together, gave him a "particularized and objective basis for suspecting legal wrongdoing." Schneider drew "on [his] own experience and specialized training to make inferences from and deductions about the cumulative information available to [him] that might well elude an untrained person." The Court concludes that Sergeant Schneider's cumulative observations caused him to have a reasonable suspicion of criminal activity that justified a prolonged investigative detention.
See United States v. Arvizu, 534 U.S. 266, 273 (2002).
Id. at 273-74.
IT IS THEREFORE ORDERED BY THE COURT that defendant's Motion to Suppress (Doc. 13) is DENIED.
IT IS SO ORDERED.