Opinion
Case No. 02-40122-02-SAC
September 18, 2003
MEMORANDUM AND ORDER
This case comes before the court on defendant's motion to suppress and defendant's motion to dismiss. Having reviewed the evidence presented at the evidentiary hearing on August 6, 2003, and aware of the proffered evidence submitted thereafter, the court is ready to rule.
FACTS
On September 27, 2002, at approximately 10:05 a.m., Sergeant Kelly Schneider of the Russell County Sheriff's Department was patrolling Interstate 70 westbound when he noticed a 1999 Ford F-250 pick-up truck traveling eastbound. Sergeant Schneider observed what he believed to be a false compartment hidden in the bed of the pick-up. Sergeant Schneider believed the false compartment was designed to contain illegal contraband. Sergeant Schneider turned through the median, and pulled up alongside the pick-up. He then noticed that the color of the bed of the pick-up was not the same color of white as the cab of the pick-up, that the bed of the pick-up was not aligned with the cab, and that the rear fender wells had been painted black, which he found unusual.
Sergeant Schneider then stopped the pick-up, which had committed no traffic offense, approached the driver and motioned for him to exit the vehicle. The driver exited the vehicle, and Sergeant Schneider asked him for his driver's license and registration. Defendant, who is African-American, produced a Maryland driver's license, and returned to the vehicle to obtain registration. While defendant did so, Sergeant Schneider noticed that the bed of the pick-up was covered with black plastic, overspread with paint. The sole passenger in the car was later identified as Mr. Stephenson. Although the registration for the truck was not in defendant's name, the vehicle was titled to Mr. Stephenson, and Sergeant Schneider had no concerns that the vehicle was stolen.
Sergeant Schneider then followed defendant to the cab and asked where the two were coming from. Defendant or the passenger replied that it was a small town near Phoenix or Tucson, Arizona, but neither defendant named the town. Mr. Stevenson stated they had just flown from Maryland to Arizona to purchase the pick-up and were driving back to Maryland. Sergeant Schneider then noticed a fresh weld on the pick-up between the bed and the cab, which he believed could not have been made unless the truck bed had been removed.
Sergeant Schneider arrested both Mr. Stanley and Mr. Stephenson, then used his drug canine, "Jake," to investigate for the odor of narcotics. Jake nosed around the vehicle and actively indicated to Sergeant Schneider that there were drugs in the pick-up. A subsequent search of the false compartment in the bed of the pick-up uncovered approximately 60 kilograms of cocaine.
MOTION TO SUPPRESS
Standing
The government contends that defendant Stanley, although driving at the time of the stop, had no proprietary or possessory interest in the vehicle, and thus lacks standing. See United States v. Jefferson, 925 F.2d 1242, 1250-51 (10th Cir. 1991) (a non-owner driver of a vehicle in which the owner is present must prove a protectable interest in the area searched).
Fourth Amendment rights "are personal and cannot be asserted vicariously." United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990), cert. denied, 499 U.S. 924 (1991) (citing Rakas v. Illinois, 439 U.S. 128, 140 (1978)). In determining whether a defendant has standing to challenge the search of a vehicle, the court considers whether he manifested a subjective expectation of privacy in the vehicle and whether society would recognize that expectation as objectively reasonable. Id. (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)). Mere control is not sufficient to establish a protectable Fourth Amendment privacy right. See generally United States v. Roper, 918 F.2d 885, 887-88 (10th Cir. 1990) (dismissing accused's Fourth Amendment claim because, although he was the driver, "[h]e was not the owner nor was he in lawful possession or custody of the vehicle."); United States v. Obregon, 748 F.2d 1371, 1375 (10th Cir. 1984) (holding that an accused who was driving a rental car that was rented by a third party and was allegedly delivered to the accused did not have a protectable expectation of privacy).
The uncontested facts established at the evidentiary hearing show that defendant was driving the pick-up which was properly titled to the passenger, Mr. Stephenson. The court finds that defendant has a sufficient Fourth Amendment interest to challenge the initial traffic stop and his subsequent detention. "It is beyond dispute that a vehicle's driver may challenge his traffic stop . . ." United States v. Erwin, 875 F.2d 268, 270 (10th Cir. 1989). Additionally, it is undisputed that defendant personally obtained possession from the owner, Stevenson, thus he "plainly has a reasonable expectation of privacy in the vehicle and standing to challenge the search of the vehicle." United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990); see United States v. Valdez Hocker, 333 F.3d 1206 (10th Cir. 2003).
Justifiable Basis for Initial Stop
Defendant asserts that structural modification of the vehicle does not provide probable cause to arrest or search. Defendant additionally contends that to the extent the stop was race-based, it is illegal.
Reasonable Suspicion
The Fourth Amendment prohibits unreasonable searches and seizures. The stopping of a vehicle constitutes a "seizure." United States v. Walker, 933 F.2d 812, 815 (10th Cir. 1991), cert. denied, 502 U.S. 1093 (1992). A vehicle stop is usually a limited seizure, however, "and is more like an investigative detention than a custodial arrest." Id. The court analyzes the stop and detention of a vehicle under the principles of Terry v. Ohio, 392 U.S. 1 (1968). Under Terry, the court examines "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." 392 U.S. at 20. "[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21.
A stop can be supported as an investigative stop on the basis of an officer's reasonable suspicion that the occupants were involved in criminal activity. See United States v. Sokolow, 490 U.S. 1, 7 (1989) (citing Terry, 392 U.S. at 30.) The Tenth Circuit had addressed "whether alterations to a vehicle in the absence of other factors can constitute reasonable suspicion that a crime is being committed." In United States v. Orrego-Fernandez, 78 F.3d 1497, 1502-1505 (10th Cir. 1996), the court held:
Alterations to vehicles do not automatically create reasonable suspicion. The alterations to the vehicle must be such that a trooper may reasonably believe a crime is being committed. The trooper must go beyond the inarticulable hunch that all customized vehicles contain hidden compartments and point to specific factors which justify the objectively reasonable conclusion that particular alterations indicate a hidden compartment which may contain contraband.
There, the truck was not merely "customized," but contained several alterations which in the trooper's experience were consistent with the existence of a hidden compartment. The court thus held "that the sum of the particular alterations observed by Trooper Miller created reasonable suspicion of drug trafficking and satisfied the requirements of the Fourth Amendment for an investigative detention." Id.
Here, Sergeant Schneider's decision to stop the pick-up included the following factors: 1) an "obvious kink" or height discrepancy between the bed of the pick-up and the cab, an alteration which in his experience was indicative of the existence of a hidden compartment used for the transportation of illegal contraband; 2) the difference in the shade or color of the bed and the shade or color of the cab, indicating that one of the two had been repainted; 3) defendant's route of travel on I-70, known to Sergeant Schneider to be a common drug courier route; and 4) defendant's eastbound direction of travel, coupled with Sergeant Schneider's knowledge that drugs travel from west to east through Kansas.
The court finds that these factors collectively created reasonable suspicion of drug trafficking and justified the investigative detention.
Racial Profiling
Defendant next contends that if Sergeant Schneider's decision to stop this defendant was motivated, even in part, by defendant's African-American race, the stop is unreasonable under the Fourth Amendment.
Defendant has the burden to show that the officer knew defendant's race or skin color before deciding to stop him, and that his decision to stop this defendant was motivated in part by defendant's race or skin color. See United States v. Aliperti, 2002 WL 1634440, *3 (D. Kan. 2002) (denying motion to suppress for racial profiling where Trooper had "little opportunity, if any, to view the defendant before the stop and the defendant's appearance would not necessarily lead [him] to perceive that the defendant was Hispanic."); United States v. Villanueva, 157 F. Supp.2d 1184, 1190 (D. Kan. 2001) (denying motion to suppress for racial profiling where officer testified he was unable to discern any characteristics about the vehicle's driver before he initiated the traffic stop, and the vehicles were traveling in opposite directions on a divided highway at night.)
The undisputed testimony of Sergeant Schneider, which this court finds to be both credible and convincing, is that he was unaware of the race of the occupants of the pick-up prior to stopping it. No contrary testimony was offered. Specifically, Sergeant Schneider testified that when he first spotted the pick-up across the median, his attention was drawn to the structural modification of the vehicle, not to its occupants, because "that's the one thing" he looks for. The photographs admitted as exhibits confirm Sergeant Schneider's testimony that the side and back windows of the pick-up had "extremely dark window tinting" on them. The tinting would likely have obscured his clear vision of the occupants when he pulled alongside the pick-up before stopping it, even if his attention had been focused on the occupants instead of on the truck bed. Thus no evidence supports the premise that Sergeant Schneider knew or had reason to know of defendant's race or color, a necessary prerequisite to finding that his decision to stop this defendant was motivated in part by defendant's race or color.
Because of the agreement of the parties, the court admits the exhibits proffered after the evidentiary hearing to the same extent they were admitted in the Mesa-Roche case, as though they had been offered in this case. The court has carefully reviewed the evidence which relates to alleged racial profiling, but does not find it persuasive or even material to show that Sergeant Schneider's decision to stop this defendant was motivated, even in part, by defendant's African-American race, as it does not purport to show, either in this case or in any other, that Sergeant Schneider knew the race or color of any persons he stopped before he effected the stops. Defendant's Fourth Amendment challenge fails.
Probable Cause to Arrest / Search
Defendant additionally contends that the apparent existence of a hidden compartment is insufficient to provide probable cause.
In two cases, the Tenth Circuit has held that the apparent existence of a hidden compartment likely to contain contraband is sufficient to create probable cause to arrest a defendant. See United States v. Soto, 988 F.2d 1548, 1558 (10th Cir. 1993); United States v. Arango, 912 F.2d 441, 447 (10th Cir. 1990). In Soto, after noting "what the officer observed in his search of the trunk and passenger compartment at the scene of the stop," the Tenth Circuit affirmed the district court's probable cause determination, which was based solely upon the presence of a false compartment likely to contain contraband. See Soto, 988 F.2d at 1558.
It is well established that an officer's observation of an alteration to a vehicle, if coupled with legitimately suspicious activity, gives rise to probable cause. See United States v. Mercado, 307 F.3d 1226, 1230 (10th Cir. 2002). For example, in United States v. Morse, 15 Fed. Appx. 590, 596-597, 2001 WL 649453,*5 (10th Cir. 2001), the defendant's nervousness, travel plans, the odor of fresh paint, the recent purchase of the pickup, and insurance on the pickup by a third party, in combination with a hidden compartment, created probable cause to arrest.
Numerous similar cases can be found in the Tenth Circuit. See e.g., United States v. Anderson, 114 F.3d 1059, 1066 (10th Cir. 1997) (probable cause when driver and passenger gave "slightly conflicting" versions of travel plans, and officer detected scent of air freshener in car and observed evidence that gas tank had been tampered with); United States v. Williams, 7 Fed. Appx. 876, 886, 2001 WL 359490, *8 (10th Cir. Apr. 11, 2001), cert. denied, 534 U.S. 1071 (2001) (discovery of a hidden compartment, combined with the other factors creating a suspicion of criminal activity, furnished probable cause to search the van without regard to the scope of defendants' consent); United States v. Smith, 166 F.3d 1223, 1999 WL 34826, *2 (10th Cir. Jan. 28, 1999) (Table) (lack of driver's license or proof of insurance, evasive answers to police questions, and discovery of the hidden compartment in the vehicle, constitute probable cause to search the entire vehicle for contraband); United States v. Chavez-Ceja, 161 F.3d 18, 1998 WL 654986, *3 (10th Cir. Sept. 21, 1998) (Table) ("given the other suspicious factors present here, once Trooper Jimerson observed evidence of a hidden compartment, he had probable cause to remove the front seat and the carpet and plate covering the hidden compartment, and to search the entire vehicle for drugs."); United States v. Marquez, 114 F.3d 1198, 1997 WL 307149 (10th Cir. Jun. 9, 1997) (Table) (officer smelled marijuana and cologne, discovered a marijuana cigarette, observed an unusually shallow truck bed, and saw drug dog alert; sufficient probable cause to conduct a warrantless search of the entire pickup, including its hidden compartments).
In this case, the court finds it unnecessary to decide whether a vehicle modification, alone, is sufficient to provide probable cause for an arrest, because other factors support Sergeant Schneider's decision to arrest this defendant. Defendant and the passenger stated that they had recently flown to Arizona from Maryland to buy the pick-up truck which defendant was driving, but neither could identify the name of the town in which they had just purchased the vehicle. They represented it once as a small town near Phoenix, and once as a small town near Tucson. As Sergeant Schneider stated, their stated purpose for their travel "made no sense," as they could have purchased an identical model of pick-up much closer to their home. They were traveling eastbound from a border area where drug shipments originate, to a destination area, on a route commonly used by drug couriers. There was a fresh weld between the cab and the bed of the pick-up which could not have been made unless the bed of the truck had recently been removed, because there would have been no room to do so.
These facts in conjunction with those which led to the initial stop, coupled with Sergeant Schneider's training and experience, gave him probable cause to believe that defendants were transporting illegal contraband. Such probable cause is sufficient to support defendant's arrest and the ensuing search of the vehicle.
Dog Sniff
Defendant next challenges the dog sniff. First, defendant contends that because he was illegally detained without probable cause to arrest, the subsequent sniff with the dog was the product of the illegal detention. Because the court has upheld the detention and arrest, this issue is moot.
Second, defendant objects that the dog never alerted or indicated, and that the government has not met its burden to show that the dog and its handler were reliable, qualified, and accurate. Defendant recognizes, however, that a valid alert from a reliable drug dog can, alone, provide probable cause for a search. See United States v. Klinginsmith, 25 F.3d 1507, 1510 (10th Cir.), cert. denied, 513 U.S. 1059 (1994).
Here, Sergeant Schneider had probable cause independent of the dog sniff to believe the pick-up contained contraband. Thus the court need not reach this issue. Nonetheless, the court additionally finds sufficient evidence in the record to show that Jake, the canine used to sniff the pick-up, was trained, certified, and reliable. Further, having viewed the videotape, the court finds no reason to discredit Sergeant Schneider's testimony that the dog both alerted and indicated, signaling the presence of narcotics in the pick-up. Thus had probable cause been based upon the dog sniff, it would have been sufficient.
For all the reasons set forth above, defendant's motion to suppress is denied.
* MOTION TO DISMISS
Defendant's motion to dismiss alleges that defendant was stopped partly because of his dark skin, in violation of the equal protection clause of the Fifth Amendment.
In order to prevail on a claim of selective prosecution, a defendant must show that "he has been singled out for prosecution while others similarly situated generally have not been proceeded against for the type of conduct forming the basis of the charge against him." United States v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983), cert. denied, 469 U.S. 1110, 105 S.Ct. 789, 83 L.Ed.2d 783 (1985). In addition, the defendant must prove that the government's selection of him for prosecution "was invidious or in bad faith and was based on impermissible considerations such as . . . the desire to prevent the exercise of constitutional rights." Id. United States v. Furman, 31 F.3d 1034, 1037 (10th Cir.), cert. denied, 513 U.S. 1050 (1994). This analysis governs both selective prosecution and selective enforcement claims, thus defendant must show both discriminatory intent and discriminatory effect. See United States v. James, 257 F.3d 1173, 1178 (10th Cir. 2001), cert. denied, 534 U.S. 1106 (2002); United States v. Barlow, 310 F.3d 1007, 1010 (7th Cir. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 2236, 155 L.Ed.2d 1123 (2003) (same type of analysis governs selective prosecution and selective enforcement claims). Defendant has the burden to prove that Sergeant Schneider's decision to stop him was based at least in part on the impermissible consideration of defendant's race or skin color.
The facts set forth above which led this court to reject defendant's claim of racial profiling as it related to allegations of an unreasonable stop for purposes of the Fourth Amendment, compel the court to reject defendant's claim of selective enforcement for purposes of the Fifth Amendment. Defendant fails to make a prima facie case of an equal protection violation where, as here, the credible and undisputed evidence shows that the officer did not know the defendant's race or skin color before stopping him. See United States v. Borrego, 66 Fed. Appx. 797, 800-801, 2003 WL 21153252,*3 (10th Cir. 2003) (affirming court's finding of no prima facie case of selective enforcement of traffic laws, based on officer's testimony that he did not know the race of vehicle's occupants when he stopped the vehicle); see Maxey v. Banks, 26 Fed. Appx. 805, 808, 2001 WL 1475069, *2 (10th Cir. 2001) (discriminatory purpose must be a motivating factor in a race-based violation of the equal protection clause).
Reliance upon statistics alone is insufficient to meet defendant's burden of proof when faced with uncontradicted and credible testimony that the officer did not know the occupant's race or skin color at the time of the allegedly race-based act. See, e.g., Borrego, 2003 WL 21153252 at*3 (denying racial profiling claim based on statistics where officer testified he did not know the race of vehicle's occupants at the time of stop, finding "purely statistical evidence is rarely sufficient to support an equal protection claim,") citing McCleskey v. Kemp, 481 U.S. 279, 293 n. 12 (1987).
Additionally, the Tenth Circuit has recently reaffirmed that a defendant cannot meet his burden to show discriminatory effect by generic statistical evidence.
Of course, a defendant cannot satisfy the discriminatory effect prong by providing statistical evidence which simply shows that the challenged government action tends to affect one particular group. Rather, the proffered statistics must address the critical issue of whether that particular group was treated differently than a similarly-situated group. Chavez, 251 F.3d at 638.
James, 257 F.3d at 1179.
Neither the Kansas Racial Profiling Study nor any other evidence in this case meets defendant's burden to show that persons of a different race or skin color have not been stopped and arrested "for the type of conduct forming the basis of the charge against [defendant]." Furman, 31 F.3d at 1037; see James, 257 F.3d at 1179 (same, regarding discovery). The type of conduct that forms the basis of the charge against this defendant is driving a vehicle that had been structurally modified for the purpose of transporting illegal contraband. The evidence does not purport to show that Sergeant Schneider or other law enforcement officers saw, but did not stop, those of another race or skin color for driving vehicles that had been structurally modified for the purpose of transporting illegal contraband, or were otherwise engaged in felonious activity. Nor does any evidence purport to show that persons of a different race or color who had been stopped for any reason were not arrested, despite the existence of probable cause to believe they were engaged in drug trafficking.
Further, when statistics are used to establish discriminatory effect, "such statistics must be relevant and reliable . . ." Barlow, 310 F.3d at 1011 (finding that Dr. Lamberth, the author of the Kansas Racial Profiling Study at issue in this case, used "flawed statistical methodology" in that case.) Because the court's decision is based upon the findings above, the court finds it unnecessary to detail herein the host of reasons that it finds the Kansas Racial Profiling Study to be unreliable.
Defendant fails to make a prima facie case of an equal protection violation. But even had defendant done so, the government's evidence established that Sergeant Schneider's decision to stop and arrest defendant was based on legitimate factors other than race. Therefore, defendant's motion to dismiss must be denied.
IT IS THEREFORE ORDERED that defendant's motion to suppress (Dk. 18) and defendant's motion to dismiss (Dk. 42) are denied.