Opinion
No. 03-10040-02-WEB
September 25, 2003
Memorandum and Order
This matter came before the court on September 19, 2003, for a hearing on defendant Gary Mullane's Motion to Suppress Evidence. The court orally denied the motion at the conclusion of the hearing. This written memorandum will supplement the court's oral ruling.
I. Facts.
The court finds the following facts from the evidence presented at the hearing. On the evening of February 15, 2003, Kansas Highway Patrol Trooper Shawn Phillips was on duty patrolling Interstate 70 in Gove County, Kansas. At about 8:15 p.m., Phillips had stopped a vehicle and was in the process of writing a ticket when his rear stationary radar emitted a high tone, signifying a speeding vehicle was approaching. Phillips saw an eastbound blue Ford pickup passing him and saw that the radar indicated the vehicle was going 76 m.p.h. The maximum legal speed at that location was 70 m.p.h. Phillips noticed that the truck had Minnesota license plates. After he finished issuing a ticket to the motorist he had stopped, Phillips got back in his car and proceeded after the blue pickup.
As Phillips approached the blue pickup, he saw a semi-trailer traveling in the right-hand behind the pickup and a White Jeep Grand Cherokee passing the semi-trailer in the left-hand lane. Phillips saw the Jeep cross over the solid line marking the left-hand lane boundary. After the Jeep got around the semi and merged back to the right-hand lane, it again strayed over the outside boundary line. The Jeep at this point was 100-200 yards behind the blue pickup. Because he had seen two lane violations by the Jeep within a short distance, Phillips radioed dispatch for a check on the Arizona license tag of the Jeep. He then pulled around the Jeep to run a check on the pickup. As he pulled slightly ahead of the Jeep, the blue pickup hit its brakes, slowing down to about 60 miles per hour. Phillips also called in the license tag of the pickup. Having seen violations committed by each of the drivers, Trooper Phillips decided to stop both vehicles. He received a report back from dispatch that the white Jeep was a rental vehicle out of Arizona and that the blue Ford pickup was registered to a Cole Peterson of Minnesota.
There was not enough room for Phillips to pull in between the pickup and the Jeep, so he fell back behind the Jeep and turned on his emergency lights. The Jeep Grand Cherokee pulled over to the side of the highway but the blue Ford pickup kept going. After stopping behind the Jeep, Phillips approached the vehicle and spoke to the driver. He told the driver he had seen him straying outside his lane and asked if he had been drinking or was sleepy. The driver said no. Phillips asked for and received the individual's driver's license, which showed that he was the same Cole Peterson that dispatch had reported as the registered owner of the blue Ford pickup. Phillips asked Peterson if he was traveling together with someone else, indicating another vehicle, but Peterson said he was not. Phillips was immediately suspicious of Peterson's apparent attempt to disassociate himself from the Ford pickup. Phillips looked down the highway and thought he saw the lights of the Ford pickup exiting off of I-70 at the next exit. He explained to Peterson that he had seen both the Jeep and the pickup truck commit traffic violations and said he had intended to stop both vehicles. He asked Peterson to follow him to the next exit, explaining that he thought the pickup was there and that he wanted to stop that vehicle as well. Phillips got back in his car and drove about a mile or so to the next exit, which was the intersection of I-70 and U.S. Highway 83. Phillips exited on to U.S. 83, together with Peterson in the white Jeep, but Phillips did not see the blue Ford pickup at either of the gas stations located at that exit.
Phillips stopped and re-approached the Jeep Grand Cherokee and asked Peterson for the rental agreement for the vehicle. The rental agreement showed that it had expired. Peterson said that this must be a mistake because he had gotten an extension on the rental. Peterson said he was coming from Tucson, and when Phillips asked what he had been doing there, Peterson said he had been taking care of his sick father. Peterson appeared to become unusually nervous in the course of the stop, with his hands and voice shaking. Phillips saw two cell phones on the front seat and a small amount of luggage in the vehicle. He also noticed that the rental agreement had a travel restriction limiting travel to the States of Arizona, Nevada and California, and that another individual who was not present was listed together with Peterson as an authorized driver. Phillips went back to his patrol car to write a warning citation for a lane violation.
The other individual listed as an authorized driver was not defendant Gary Mullane.
Phillips was suspicious at this point that Peterson was involved in drug smuggling, particularly since he had denied traveling with the pickup that was registered to him. Phillips was aware from his training and experience that illegal drugs are frequently transported in vehicles traveling on I-70, and that Tucson, Arizona, is a common source area for drugs being transported from the southwest United States. Phillips put out a radio report for officers to keep an eye out for the blue Ford pickup, saying he had seen it commit a speeding violation. Phillips may have also indicated by code ("5D") that the truck was possibly involved in a drug matter.
Phillips returned to the Jeep and gave Peterson a warning citation for the lane violation. He gave back all of Peterson's papers and told him to have a safe trip. Phillips then momentarily stepped away from the vehicle before returning and asking Peterson if he would mind answering a few questions. Peterson said okay. Phillips asked if he were carrying any illegal drugs, weapons, or large amounts of cash. When Peterson said no, Phillips asked if it would be okay if he took a look through the interior of the vehicle, to which Peterson said, "yeah, go ahead." Phillips then opened a rear door and the rear hatch on the Jeep. Phillips examined the rear cargo area of the Jeep and could see small bits of green leaves and stems, which he believed to be marijuana residue, in the carpet. He could detect a faint odor of raw marijuana He also saw some carpet cleaner/deodorizer on the carpet. He found a 2-way radio, which Phillips knew was sometimes used by individuals (including drug traffickers) traveling in tandem on the highway. Phillips concluded his search and told Peterson that he could go.
Phillips was suspicious at this point that Peterson's pickup truck was being used to haul marijuana, and he decided to try and find the pickup. As he returned to I-70, he received a radio report that Oakley (Kansas) Police Officer Paul Wager had located the pickup truck and was stopping it near mile marker 81. Phillips radioed Wager that he would be there shortly and told Wager to keep an eye out for the white Jeep Grand Cherokee being driven by Peterson. It took Phillips about 5-7 minutes to reach Wager's location. Wager had already spoken to the driver of the pickup, Gary Mullane, and had obtained his driver's license. When Phillips arrived, he approached the pickup, confirmed that it was the same vehicle he had seen speeding, and then spoke to Mullane, who was still in the vehicle. Phillips explained that he had clocked the vehicle speeding when it went around him, and Mullane apologized for not having slowed down. Phillips asked for his driver's license but Mullane said he had already given it to Officer Wager. Mullane asked what was going on with his friend. When Phillips asked who he meant, Mullane said the guy in the white Jeep, whom he indicated was the owner of the pickup. After retrieving Mullane's license from Officer Wager, Phillips returned to the truck to get Mullane's insurance information. In the conversation that followed, Mullane was highly nervous and blurted out various things about some of his former jobs. When Phillips asked why Mullane was driving Peterson's pickup, Mullane said that they had taken the truck to Arizona to sell it to Mullane's brother, but the deal had fallen through. He said they were now heading back to Minnesota, where Mullane was going to give a presentation to some kindergarten classes. Asked to explain why Peterson was driving separately in a rental car, Mullane said it was in case Peterson wanted to stop along the way and do some sightseeing. Shortly thereafter, Trooper Phillips returned all of Mullane's documents and issued him a warning citation. He told Mullane to have a safe trip and stepped away from the truck, but quickly returned and asked if Mullane would mind answering a few questions. Mullane said okay, and Phillips asked if Mullane were carrying any illegal drugs, guns or large amounts of cash. Mullane said he was not. Phillips then asked if it would be all right if he searched the truck. Mullane said he could not consent to a search because it was not his truck. Phillips then informed Mullane that he was going to be detained while Phillips arranged for a drug-sniffing dog to be brought to the scene. Phillips went back to his car and radioed for an officer to bring a trained drug-detecting dog. Officer Prevatt arrived at the scene with a trained dog about 10-12 minutes later. When they arrived, Phillips had Mullane get out of the truck and patted him down, and then had him to stand in front of the truck. Mullane was not handcuffed and was standing by himself. When Prevatt worked the dog around the vehicle, the dog alerted on the back of the pickup. The officers then removed a snap-down cover on the back of the truck and saw a number of large black trash bags filled with something. The officers opened one or more of the bags and found a green, leafy substance that appeared to be (and in fact was) marijuana. Mullane was then placed under arrest and was given his Miranda rights.
II. Summary of Defendant's Arguments.
Defendant Mullane claims he was subjected to an investigative detention in the absence of any reasonable suspicion that he was engaged in criminal activity. He claims he was subjected to an initial unlawful detention while Trooper Phillips investigated Cole Peterson, and that he was further detained without reasonable suspicion after Trooper Phillips arrived at Mullane's location and questioned him and had a drug dog brought to the scene. Defendant contends that this continued investigative detention violated his right to be free from unreasonable seizures under the Fourth Amendment. He argues that even if an initial stop was permissible for a speeding violation, "the continued detention of this defendant exceed[ed] any reasonable nexus with the traffic violation." Def. Mem. at 8. Defendant also contends that he was subjected to a custodial interrogation without Miranda warnings in violation of his Fifth Amendment rights when Trooper Phillips asked him incriminating questions in the course of the detention.
III. Discussion.
Defendant Mullane does not challenge Trooper Phillips' detention and investigation of Cole Peterson or the Trooper's search of the white Jeep. Nor would Mullane have standing to do so under the evidence presented, given that Fourth Amendment rights are personal and may not be asserted vicariously. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). Thus, for purposes of the instant motion, the propriety of the Trooper's detention of Peterson and his search of the white Jeep are immaterial. See United States v. Rascon, 922 F.2d 584, 586 (10th Cir. 1990) ("It is immaterial if evidence sought to be introduced against a defendant was obtained in violation of someone else's Fourth Amendment rights."). Mullane does have standing, of course, to challenge his own detention by the officers.
At the same time, the court notes that the evidence shows the officer's detention and investigation of Peterson were entirely lawful.
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the meaning of this provision. Whren v. United States, 517 U.S. 806, 809-10 (1996). Under Tenth Circuit precedent, routine traffic stops are analyzed under the standards for investigatory stops set forth by the Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). See United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). The reasonableness of such a stop must be evaluated in two respects:
first, whether the officer's action was justified at its inception, and, second, whether the action was reasonably related in scope to the circumstances that first justified the interference. United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994)
( citing Terry v. Ohio).
Insofar as the appropriate scope of a traffic stop is concerned, the Tenth Circuit has consistently held that an officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation. Gonzalez-Lerma, 14 F.3d at 1483. Thereafter, when the driver has produced a valid license and proof that he is entitled to operate the car, he generally must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. Id. Further questioning is permissible in two circumstances, however. First, the officer may detain the driver for questioning unrelated to the initial traffic stop if he has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring. United States v. Soto, 988 F.2d 1548, 1554 (10th Cir. 1993). Second, further questioning is permissible if the initial detention has become a consensual encounter. United States v. DeWitt, 946 F.2d 1497, 1502 (10th Cir. 1991).
The evidence presented shows that prior to the time defendant Mullane was stopped by Officer Wager, Trooper Phillips had already completed his discussion with Cole Peterson and had conducted a search of the white Jeep. From that encounter, Phillips was aware of specific and articulable facts giving rise to a reasonable suspicion that Peterson's pickup truck was being used in the distribution of marijuana. Among other things, Phillips was aware that Peterson had falsely denied traveling with the individual who driving his pickup truck, that Peterson was driving a rental vehicle from what was considered a source area for drugs on a highway often used to transport drugs, that the vehicle contained a strong odor of air freshener, and that there was marijuana residue on the floor of the vehicle and a slight odor of marijuana in the car. The totality of the circumstances, including indications that marijuana had recently been in the white Jeep, combined with Peterson's denial that he was traveling with the truck that was registered to him, reasonably supported the Trooper's suspicion that marijuana or money obtained from the sale of marijuana was located in Peterson's pickup. See United States v. McRae, 81 F.3d 1528, 1534 (10th Cir. 1996) (in assessing what constitutes an objectively reasonable suspicion of illegal activity, court defers to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions.). As such, the officers were justified in detaining defendant Mullane for a Terry stop to investigate whether he was engaged in drug distribution. The court further finds that the scope of Mullane's stop was reasonably related to the circumstances justifying the detention. After Mullane was stopped, he was detained by Officer Wager for about 6 or 7 seven minutes until Trooper Phillips arrived. From that point, Trooper Phillips briefly asked Mullane about his travel. The answers that he received included Mullane's rather implausible story about traveling with Peterson to Minnesota (with Peterson in a separate car) as the result of an aborted attempt to sell the pickup truck. These answers were flatly inconsistent with Peterson's claim that he was not traveling with anyone, and they only served to reinforce the officer's reasonable suspicion of criminal activity. Under the circumstances, the officers' detention of Mullane for 10-12 minutes thereafter while a drug dog was brought to the scene was entirely reasonable. See United States v. Williams, 271 F.3d 1262, 1271 (10th Cir. 2001) (finding fifteen-minute wait for canine unit was reasonable); United States v. Villa-Chaparro, 115 F.3d 797, 802-03 (10th Cir. 1997) (thirty-eight-minute wait for canine unit was reasonable in view of officer's reasonable suspicion). The uncontroverted testimony before the court is that the drug dog alerted on the back of the pickup truck, which under the totality of the circumstances provided probable cause for a search of the vehicle. See United States v. Ludwig, 10 F.3d 1523, 1527 (10th Cir. 1993) (trained canine alert by itself may provide probable cause for search) and United States v. Ross, 456 U.S. 798, 809 (1982) (warrantless search of an automobile is reasonable if there is probable cause to believe it contains contraband). In sum, the court finds that the detention of Mullane and the search of the pickup were reasonable under the Fourth Amendment.
The fact that Phillips had already searched the Jeep when Officer Wager first stopped Mullane in the pickup is established not only by Trooper Phillips' testimony, but also by Government's Exhibit 1, which includes videotape from both stops. The clock on Phillips' video indicates that he finished with the Peterson stop at about 20:27 (8:27 p.m.), while the video from Wager's vehicle shows that he first stopped Mullane at 20:29 (8:29 p.m.). The chronology is confirmed by the audio from Wager's tape, which shows that Phillips informed Wager as he was stopping Mullane that marijuana residue had been found in the white Jeep.
The court likewise rejects defendant's argument that Trooper Phillips violated his Fifth Amendment rights by asking questions in the course of the traffic stop without giving him Miranda warnings. The court notes that defendant has not identified any particular statements as being obtained in violation of his rights. The court also notes that the evidence showed Trooper Phillips did not ask the defendant any further questions from the time Mullane refused to give consent for a search until the time Mullane was arrested and placed in the patrol car. The evidence showed that at the latter point (which clearly was a formal arrest) Trooper Phillips read the defendant his Miranda rights. The court therefore assumes the defendant is challenging Phillips' questioning of Mullane in the interim — from the time Phillips first arrived at the scene until Phillips asked for consent to search the vehicle.
"The safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a `degree associated with formal arrest.'" Berkemer v. McCarty, 468 U.S. 420, 440 (1984) ( citing California v. Beheler, 463 U.S. 1121, 1125 (1983)). In Berkemer, the Court rejected an argument that Miranda warnings were required for roadside questioning of motorists during routine traffic stops, noting that such stops are typically less coercive than the jailhouse interrogations at issue in Miranda. At the time Trooper Phillips asked Mullane questions about his travel, Mullane's freedom of action had not been restricted to a degree associated with a formal arrest. From the initial stop of Mullane's vehicle until the time Trooper Phillips returned Mullane's documents, the encounter was in all material respects like a routine traffic stop for speeding, with the only exception being a five or six minute wait for Trooper Phillips — the officer who had initially clocked the vehicle speeding — to arrive at the scene. Mullane remained in his vehicle during that period and Trooper Phillips gave no indication to him at that point that the stop would be anything other than a temporary stop for speeding. The questions asked by Phillips during that period were more or less routine questions about Mullane's travel, and the questioning took place in public on the side of a major interstate highway. Cf. Berkemer, 468 U.S. at 442 (single police officer asking respondent a modest number of questions and requesting him to perform a simple balancing test at a location visible to passing motorists cannot fairly be characterized as the functional equivalent of formal arrest). There were no unusually coercive circumstances present here that would take Mr. Mullane's situation outside the rule of Berkemer. Accordingly, the court finds that the defendant was not "in custody" for purposes of Miranda when Phillips asked him questions during the traffic stop, and that the defendant has shown no violation of his Fifth Amendment rights.
IV. Conclusion.
Defendant Mullane's Motion to Suppress Evidence (Doc. 36) is DENIED.