Opinion
Civil Action No. 04-20091-CM.
December 17, 2004
MEMORANDUM AND ORDER
On October 28, 2004, the court heard evidence on defendant's Motion to Suppress (Doc. 18). The government called Lyon County Deputy Sheriff Daniel Knowles as its only witness. The government introduced as Exhibit 1, Deputy Knowles' in-car videotape of the traffic stop of the defendant. No other witnesses testified. After careful consideration of the evidence presented, the court granted defendant's Motion to Suppress. This matter is before the court on the government's Motion for Reconsideration (Doc. 35).
I. Background Facts
The evidence presented at the hearing was as follows: On June 16, 2004, shortly after 3:00 a.m., Deputy Knowles was on patrol on Interstate 35 proceeding northbound when he observed a black 1995 Jeep Grand Cherokee Laredo drift out of the right hand lane across the lane marker, then drift back into the right hand lane. Knowles radioed the license plate into dispatch, who advised that the car was not wanted or stolen, and was registered to a Lilia Martinez of Kansas City. Deputy Knowles initiated a traffic stop, at which time the emergency equipment was activated on Knowles' patrol car, and a video tape recorded the entire encounter between Knowles, the defendant, and defendant's wife, Lilia Martinez.
Knowles approached the car on the driver's side. He identified himself and advised the driver, Lilia Martinez, that she had drifted out of her northbound lane of travel. Lilia Martinez explained that she was watching carefully for deer, as she had seen deer near the highway a short time prior to the initiation of the traffic stop. The videotape record of the encounter indicated that Lilia Martinez was alert, responsive, and not under the influence of any alcoholic beverage, or controlled substance. Deputy Knowles obtained the driver's license for Lilia Martinez, as well as insurance papers for the automobile. Deputy Knowles inquired where she was going. She indicated Kansas City. Deputy Knowles asked specifically where she was coming from this morning. Lilia Martinez indicated Oklahoma City. Lilia Martinez further indicated they had been shopping at the outlet malls in Oklahoma City. Deputy Knowles then asked how long they had been "down there." Lilia Martinez indicated approximately one week. Deputy Knowles then returned to his patrol car to check the validity of the driver's license. Deputy Knowles determined that the driver's license was valid and the car was not wanted to stolen.
Upon his return to the car, Deputy Knowles returned Lilia Martinez' driver's license. He then further inquired about the shopping trip. Lilia Martinez indicated they had been visiting as well as shopping. Deputy Knowles then asked where they had ultimately gone to, and Lilia Martinez indicated El Paso, Texas.
At this point during the traffic stop, Knowles indicated to Lilia Martinez "that's all I have for you." Knowles advised her to keep an eye on the lanes, that they were just about home, that he didn't want them to get into any accidents and to watch out for the deer. At this time, Deputy Knowles was immediately adjacent to the driver's side door of the Jeep.
Deputy Knowles again said, "That's all I have for you. You're free to take off." While remaining immediately adjacent to the driver's side front door of the car, Knowles asked "before you leave, do you mind if I ask a few questions before you take off. We have a lot of problems, do you have anything illegal in the car." Without waiting for a response, and while leaning on the door of the vehicle, Deputy Knowles asked a number of questions concerning guns, alcohol, drugs, or other contraband. Lilia Martinez answered that there was nothing in the car that should not be there. Deputy Knowles then requested consent for a quick search of the vehicle. Neither Lilia Martinez or Daniel Martinez consented to the search of the vehicle at that time.
While still attempting to obtain consent to search the vehicle, Deputy Knowles asked the passenger, defendant Daniel Martinez, for identification. This is prior to any consent being given to search the vehicle, and the video shows Deputy Knowles leaning into the vehicle through the open driver's side window.
The video tape did not clearly show whether Deputy Knowles obtained defendant's driver's license or whether, if he did, Deputy Knowles returned the defendant's license. At that point, Knowles again requested consent while leaning in the driver's side window of the Jeep. Deputy Knowles inquired "would that be okay?" Lilia Martinez at that point answered "sure."
II. Discussion
The government presents no new arguments in its motion to reconsider. Rather, the government requests the court to reexamine the relevant authorities. Having done so, in particular United States v. Drayton, 536 U.S. 194 (2002), the court remains convinced that the search of defendant's vehicle was unlawful.
Looking to the totality of the circumstances, the court determines that the ultimate consent to search the vehicle was obtained at a time when the continued detention of the vehicle, driver and passenger was unlawful. Lilia Martinez did not consent to further questioning after Deputy Knowles asked her if she would mind answering further questions and after having been told she was free to go; Deputy Knowles gave Lilia Martinez no time to respond. Deputy Knowles then immediately began asking questions and, as he did so, he was on the driver's side window, very close to the driver, at one point leaning into the window. In these circumstances, no reasonable person would have felt free to leave. Moreover, the government failed to meet its burden to prove that Deputy Knowles returned defendant's driver's license before requesting consent.
The detention continued beyond that necessarily related to the initial justification for the traffic stop. As such, the character of the stop never changed from a police initiated detention to a consensual encounter between a citizen and a police officer. Consequently, the consent to search by Lilia Martinez was ultimately the product of an unlawful, prolonged detention.
The government also requests permission from this court to have the relevant audio portion of the videotape in question analyzed at the Regional Criminal Forensic Laboratory in Kansas City, Missouri to determine if, through audio enhancement, a response by Lilia Martinez to the deputy's question can be heard. The court agrees with defendant that the government does not need the court's permission to submit the tape for audio enhancement. Should the audio enhancement show that Lilia Martinez articulated a response, the court will take up the issue of Deputy Knowles's credibility determination upon a proper motion by the government.
IT IS THEREFORE ORDERED that the government's Motion for Reconsideration (Doc. 35) is denied.