Opinion
Case No. 02-40122-01-SAC
April 21, 2004
MEMORANDUM AND ORDER
This case comes before the court solely on defendant's motion to suppress. (Dk. 76). The court has previously denied co-defendant Alton Stanley's motion to suppress. The parties have agreed to submit this motion based upon the transcript of the evidentiary hearing in Stanley, the exhibits admitted in Stanley, and the testimony of Sergeant Schneider presented in the evidentiary hearing held April 14th.
FACTS
On September 27, 2002, at approximately 10:05 a.m., Russell County Sergeant Kelly Schneider 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, co-defendant Stanley, exited the vehicle, and Sergeant Schneider asked him for his driver's license and registration. He produced a Maryland driver's license then 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 this defendant, Gregory Stephenson. Although the registration for the truck was not in either 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 Stanley to the cab and asked where the two were coming from. One or the other defendant replied that it was a small town near Phoenix or Tuscon, 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.
After Sergeant Schneider told defendants there was a false compartment in the truck, he went to the back of the truck and dropped the tailgate so he could perform what he calls a "two-finger test." This he did by placing one finger on top of the truck bed and one finger from his other hand underneath the truck bed to determine the width between the two. This test revealed an approximate three inch space between his two fingers, which was significantly larger than the space that would be required by the sheet of metal on the truck bed as originally manufactured. This indicated conclusively the presence of a hidden compartment, which Sergeant Schneider knew to be for the purpose of concealing drugs or contraband. Sergeant Schneider had previously assisted in arresting occupants of a vehicle that had a concealed compartment exactly like this one, and had seen approximately ten others.
Sergeant Schneider then handcuffed and 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 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
Defendant Stephenson's motion to suppress challenges the initial stop, probable cause to search the vehicle, and probable cause to arrest.
Initial Stop
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 the trooper'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.
Sergeant Schneider testified that his decision to stop the pick-up was based upon the following factors: 1) an "obvious kink" or height discrepancy between the bed of the pick-up and the cab which was angled nose-down, 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) the difference in color between the color of paint inside and outside the wheel wells; 4) too much metal inside the fender well, which indicated altered placement of the truck bed; 5) defendant's route of travel on I-70, known to Sergeant Schneider to be a common drug courier route; and 6) defendant's eastbound direction of travel, coupled with Sergeant Schneider's knowledge that drugs travel from west to east through Kansas.
The court finds no reason to discredit the uncontradicted testimony of Sergeant Schneider on the above facts. These factors collectively created reasonable suspicion that defendant was involved in the criminal activity of drug trafficking, justifying the initial stop.
Probable Cause to Search
Defendant additionally contends that the apparent existence of a hidden compartment is insufficient to provide probable cause to search the vehicle. Defendant additionally contends that lowering the tailgate and performing the "two finger test" constituted a search without probable cause.
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. June 12, 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).
Here, as in Stanley, the court finds it unnecessary to decide whether a vehicle modification alone is sufficient to provide probable cause for a search. Instead, the court finds that the following factors supported Sergeant Schneider's decision to search the vehicle: 1) 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; 2) Defendants represented it once as a small town near Phoenix, and once as a small town near Tucson; 3) Defendants' stated purpose for their travel "made no sense," as they could have purchased an identical model of pick-up much closer to their home; 4) There was black plastic over the truck bed, oversprayed with paint; 5) 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.
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, warranting the subsequent search of the vehicle. The court understands defendant's contention that the above factors merely created reasonable suspicion short of probable cause, and that Sergeant Schneider lacked probable cause until after he lowered the tailgate of the truck and lifted up the bed mat to look at the truck bed underneath it. Regardless of whether this act, alone, constitutes a search, and regardless of the terminology used by Sergeant Schneider, the court finds that Sergeant Schneider had probable cause for a search before he undertook these acts, thus no violation of the constitution has been shown.
Probable cause to arrest
Defendant additionally contends that Sergeant Schneider lacked probable cause to arrest him. This contention is based upon the assertion that the arrest flowed from the illegal search, thus the arrest is illegal. Because the court has found the search to be legal it rejects this contention, and finds that the same factors which support probable cause for the search support probable cause for defendant's arrest. 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).
IT IS THEREFORE ORDERED that defendant's motion to suppress (Dk. 76) is denied.