Opinion
Case No. 03-40021-01-JAR
May 8, 2003.
MEMORANDUM ORDER DENYING MOTION TO SUPPRESS
On May 6, 2003, this matter came for hearing before the Court on Defendant Gabriel Mendoza-Gomez's Motion to Suppress (Doc. 22) any evidence seized as well as any statements he made following a stop and subsequent search of a Mercury Marquis on January 4, 2003. The government filed a response (Doc. 27). Because the officer had an articulable reasonable suspicion that a traffic violation had occurred or was occurring, and because after the stop the officer had probable cause to search the vehicle, as well as the defendant's consent to search, the Court denies the Motion to Suppress.
Facts
On January 4, 2003, Ellis County Deputy Sheriff Scott Braun was patrolling a stretch of Interstate 70 in Ellis County, Kansas. Interstate 70 runs east-west through the State of Kansas and is known to law enforcement officers to be a route drug traffickers use. Deputy Braun testified that typically, drugs are transported from west to east; and money is transported from east to west. Deputy Braun, a law enforcement officer for 8 years, is trained in drug interdiction, and is a canine handler. This training has afforded Deputy Braun the opportunity to be involved in numerous interdiction stops. He testified that he has been involved in detecting or searching approximately twenty vehicles with hidden compartments.
Deputy Braun was traveling westbound on I-70 when he noticed the Mercury Marquis in which the defendant was traveling. Deputy Braun turned around and traveled eastbound, as he does periodically while patrolling this stretch of highway. Deputy Braun followed the car for about three miles. The car was traveling in the driving lane. Three times Deputy Braun observed the car touching or crossing the "fog line," which is the solid white line that demarcates the exterior edge of the driving lane. Concerned that the driver was sleepy or under the influence, Deputy Braun decided to stop the car, for failing to maintain a single lane of traffic.
Deputy Braun testified that the road conditions should not have affected the driver's ability to maintain a single lane of traffic. The road was flat, straight and had been newly paved. Deputy Braun further testified that there was no significant wind; in fact, he observed that high profile vehicles such as tractor-trailers were having no difficulty maintaining a lane of traffic. And, the wind presented no problem to Deputy Braun, whose patrol car, a Ford Crown Victoria, was virtually identical to the Mercury Marquis. Both the Crown Victoria and Mercury Marquis are low profile cars, less affected by wind conditions than high profile vehicles.
Deputy Braun effected a traffic stop at approximately 11:25 a.m. The car was driven by the defendant, Gabriel Mendoza-Gomez. The only passenger was a small dog. A video camera mounted in the patrol car recorded the stop; and Deputy Braun's conversations with the defendant were audio recorded as well. All conversations between Braun and the defendant were captured on the audio recording. Without exception, throughout the entire course of the traffic stop and roadside search, Deputy Braun addressed the defendant with words and tone of voice that were pleasant, conversational and non-threatening. Without exception, throughout the entire course of the traffic stop, the defendant appeared cooperative and conversed in a cooperative tone of voice. He answered "okay," or in an affirmative manner to every request posed by Deputy Braun.
According to the timer on the video recording, the stop commenced at 11:31. Within the first minute of the stop, Deputy Braun approached the car, greeted the defendant, told him that he had stopped him for touching the white line three times. The defendant responded that it was the wind. Deputy Braun testified that he was surprised by this response, because it was a calm day with relatively little wind. In fact, the wind speeds at the Hays Airport, less than 5 miles away, showed that the wind speed was between 10 and 17 miles per hour at the time of the stop. Deputy Braun further testified that while high profile vehicles may be somewhat affected by 30 mph wind speeds, high wind warnings are not generally an issue unless the wind speed exceeds 45mph.
About a minute into the traffic stop, Deputy Braun asked the defendant where he was heading. The defendant responded that he was traveling from California to Kentucky. He explained that the car did not belong to him and that his car had broken down in West Virginia. About two minutes into the traffic stop, Deputy Braun asked for and received the defendant's drivers license, as well as the car registration and proof of insurance. Deputy Braun then returned to his patrol car to verify the information and documentation. It took him about six minutes to accomplish this. He determined that the defendant had a valid driver's license; that the car was registered to and insured by Jose Alvarez, a resident of West Virginia. The car had not been reported stolen.
At approximately 11:38, some seven minutes into the traffic stop, Deputy Braun returned to the defendant's car, and asked the defendant where he had left from that morning. The defendant responded that he had left Denver that morning. Deputy Braun then handed the defendant a warning citation for failure to maintain a single lane of traffic. He told defendant that he did not have to pay money, and said "you're free to go, have a good day." Deputy Braun then took two steps in the direction of his patrol car, then turned around and asked the defendant if he could ask him a couple of questions. The defendant assented. Braun asked him if anyone had asked him to haul large sums of money; the defendant indicated no. Braun further asked if the car had been in his possession the entire time; the defendant indicated yes.
Deputy Braun testified that at this point, several observations peaked his interest. The defendant had volunteered information, that he was on his way to Kentucky to do some farming. Deputy Braun testified that in his experience, he looks for overly cooperative or overly uncooperative behavior as suspicious. Furthermore, he observed that the defendant was dressed in a sport coat, polo shirt, dress slacks and dress shoes. He was more dressed up than what Deputy Braun typically sees in the 5-15 traffic stops he makes every day. He also noticed that while the defendant seemed fairly calm, he spoke very rapidly, an indicator of nervousness.
At approximately 11:39, Deputy Braun asked if "you mind if I search your vehicle?" The defendant assented, opened the door and stepped out of the car. Deputy Braun pointed to the front of defendant's car and asked "can I get you to step up here?" The defendant complied. Braun performed a protective pat down of the defendant. Deputy Braun told the defendant to refrain from coming towards him while he searches and to not engage in any aggressive behavior. Braun advised the defendant that his drug dog was in the patrol car and trained to protect Braun. The defendant stood to the front of his car, on the grassy area to the right of the roadway.
Deputy Braun searched the car there at the roadside, from 11:30:49 to 11:43:16. During this thirteen minute period, Braun first entered the passenger compartment, through the driver's door. He observed five air fresheners hanging from the brake pedal. This peaked his interest, because drug couriers often use air fresheners and other agents to mask the odor of drugs. In fact, Deputy Braun testified, lately, drug couriers have been traveling with pets, perhaps to detract law enforcement from the real nature of their road trip, and perhaps relying on the animal's odor to mask the drug odor as well.
Deputy Braun quickly popped open the trunk, and spent about a minute searching the trunk. A large speaker box was installed in the trunk. Deputy Braun noticed that the tire would not fit against the back wall of the trunk as designed, and that it looked like the brackets between the back seat and wall of the trunk had been moved. He also noticed that there was a different carpet, a noticeably different color, in that back portion of the trunk. Braun then walked around the car, looking in the windows. At about 11:42 he got in the back seat of the car, and is heard knocking on something. Less than a minute later, he is heard knocking on something again. Braun testified that he knocked on the middle armrest area, and heard a metal sound in a place where there should be cloth. He also noticed that the bolts on the back seat had been removed before. Braun pulled the top of the back of the driver's seat forward and immediately smelled a strong odor, which he knew to be marijuana, having smelled marijuana more than 400 times in his eight year career. Braun did not get his drug dog, Harry, out of the patrol car to sniff because Harry alerts by scratching the car, and sometimes the paint on the car; and Braun thought it unnecessary to expose the car to this. Based on his observations, Braun concluded that there was a hidden compartment behind the back seat of the car. Braun testified that he decided to take the vehicle to the Ellis County Sheriff's office for a more thorough search to obtain access to the hidden compartment. Braun testified that he believed he had probable cause to search the vehicle, with or without the defendant's consent.
At approximately 11:43:16 Braun closed the trunk and approached the defendant, asking "sir, I'm going to ask you to follow me in okay?" He went on to explain that he believed there was a false compartment behind the back seat. On the audiotape, the defendant is heard saying that he doesn't know that. Braun further explained that it smells like marijuana. Braun then asked defendant we're "gonna go ahead and look at it okay;" and "just follow me, okay?" The defendant said "okay." This dialogue between the defendant and Braun was pleasant, conversational and not threatening. The defendant got back in his car; Braun got back in his car, and the roadside stop concludes at 11:44:23.
Analysis
The defendant moves to suppress on the basis that Deputy Braun lacked reasonable suspicion or probable cause that a traffic violation, maintaining a single lane of traffic, was occurring or had occurred. The defendant further argues that there was no probable cause to search the vehicle at the Ellis County Sheriff's Office and that he did not consent to the same.
A traffic stop is valid under the Fourth Amendment if the officer has observed a traffic violation, or if the officer has a "reasonable articulable suspicion" that a traffic violation has occurred or is occurring. The government has established that Deputy Braun had reasonable suspicion to believe a violation has or was occurring. The defendant's car crossed the "fog" line three times in a three mile stretch of road. This is sufficient to believe that the defendant was violating K.S.A. § 8-1522. As this Court has stated before, "[w]hen the officer observes a vehicle straying from the lane more than once, over a period of time or distance, the need to consider other facts is not as great, for repeated straying is stronger evidence that the driver's straying from the lane is not due to external circumstances, and that staying in the lane was not impracticable." In any event, there is no evidence that defendant's straying from the driving lane is attributable to external circumstances. The wind speed was merely 10-17 mph; and the road was flat, straight and newly paved. In United States v. Dunn, a stop based on a single incidence of a sedan straying onto the shoulder, was valid, where the road was straight and slightly graded, and it was not windy. In other words, there was no apparent reason for the car straying from its driving lane. Deputy Braun's stop of the defendant's car was justified at its inception.
Whren v. United States, 517 U.S. 806, 810 (1996) (Traffic stop valid "where the police have probable cause to believe that a traffic violation has occurred"); U.S. v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998) (citing United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (reasonable articulable suspicion of traffic violation is valid basis for traffic stop).
United States v. Vercher, 2003 WL 1090631, *5 (D.Kan. Mar 10, 2003); See United States v. Ozbirn, 79 F.3d 973, 977 (10th Cir. 1996) (analyzing Utah Code Ann. § 41-6-61(1) which requires that vehicles "operate as nearly as practical entirely within a single lane"); Cf. United States v. Ochoa, 4 F. Supp.2d 1007, 1011-12 (D.Kan. 1998) (traffic stop was not justified because the vehicle had strayed onto the shoulder only once, there was no evidence concerning the weather, inconsistent evidence concerning the road conditions, as well as evidence that the positioning of the trooper's car may have caused the driver to stray onto the shoulder).
133 F.3d 933 (10th Cir. 1998) (analyzing K.S.A. § 8-1522 which requires that a vehicle be driven "as nearly as practicable entirely within a single lane"). See also Botero-Ospina, 71 F.3d at 785.
Once the traffic stop was completed, Deputy Braun issued a warning citation to the defendant and returned his driver's license, and the registration and insurance documents to him. After telling him he was free to go, and taking two steps towards his patrol car, Deputy Braun then asked if he could ask the defendant a few questions and the defendant cooperated. The defendant gave a valid consent to search the vehicle. The audio tape records the defendant's assent to the search as well as the non-threatening tenor and tone of the dialogue between Deputy Braun and the defendant. The video tape illustrates the defendant's cooperative behavior throughout Deputy's Braun's questioning and roadside search.
In the course of his search of the vehicle, Deputy Braun developed reasonable suspicion and then probable cause to believe the vehicle had been or was being used to haul marijuana. The observations and indicia resulting in probable cause included: the defendant's somewhat confusing account of his travel plans; the presence of five air fresheners in the passenger compartment; the defendant's rapid speech indicating his nervousness; the fact that the defendant was driving a car that did not belong to him; and the fact that the car was registered to someone in West Virginia, which was neither the defendant's stated genesis or destination of his travels. Furthermore, Deputy Braun observed signs that the back seat had been unbolted and altered by being moved several inches. The spare tire space in the trunk was several inches smaller than it should have been; the carpet in that area of the trunk was a noticeably different color and the bolts on the back seat had obviously been removed at least once. Upon noticing these things, Deputy Braun pulled on the top of the back seat and immediately detected a strong odor of marijuana coming from what appeared to be a false compartment behind the back seat. At this point there was clearly probable cause, independent of any consent, to both move and search the vehicle. Therefore, the defendant's motion to suppress is denied.
IT IS THEREFORE BY THE COURT ORDERED that the defendant's Motion to Suppress (Doc. 22) is DENIED.