Opinion
Case No. 01-40003-01-RDR.
August 13, 2001.
MEMORANDUM AND ORDER
This case arises from a traffic stop on Interstate 70 in Ellis County, Kansas. This case is now before the court upon defendant's motion to suppress. The court has heard evidence and argument upon the motion and shall order that the motion be denied.
EVIDENCE AND TESTIMONY
The evidence in this matter demonstrated that defendant was stopped on 1-70 in Ellis County, Kansas while driving a red 1995 Ford Explorer traveling eastbound at 10:55 a.m. on Christmas Day, December 25, 2000. There was a female passenger in the vehicle who has been identified as Gabriella Covarrubias. Kansas Highway Patrol Trooper J.D. Rule made the stop. Once defendant's vehicle was stopped, Trooper Rule activated the video camera in his patrol car which made a video and audio recording of events that has been admitted into evidence. Parts of the audio recording are difficult to hear and understand.
Defendant was stopped for failing to maintain a single lane of traffic. Trooper Rule observed defendant's vehicle cross the center three or four times and straddle the center for a significant distance. The road was straight and flat. Driving was not obstructed by snow or ice, although there was snow on the shoulders of the road.
After defendant stopped his Explorer, Trooper Rule approached the vehicle and asked for defendant's driver's license and registration. He immediately noticed a strong chemical odor, although he could not identify what kind of chemical was causing the odor. Defendant's driver's license listed his address as Dallas, Texas. The vehicle was registered to a Francisco Lopez in Seattle, Washington. Trooper Rule asked defendant if the Explorer was defendant's vehicle. Defendant initially said "yes" but later indicated that he was in the process of purchasing it. Defendant seemed overly nervous to Trooper Rule. His hands were shaking and he made little eye contact. The passenger of the car also seemed quite nervous.
The odor was later determined to have come from cocaine and an odor masking agent.
Defendant told Trooper Rule that he and his passenger were traveling from Seattle, where they both lived, to Florida to visit friends or relatives, although he never identified where in Florida these people lived or who they were. When Trooper Rule checked on the vehicle's registration, he learned that the vehicle had been registered in Lopez's name for just two months.
Trooper Rule wrote a warning ticket for defendant in his patrol car while defendant was seated beside him in the front passenger seat. At 11:02 a.m., after handing the ticket and defendant's paperwork back to him, Trooper Rule told defendant to have a safe trip and take care. Then, virtually immediately, as defendant started to exit the patrol car, Trooper Rule asked, "Do you mind if I ask you a couple questions, would that be okay?" Defendant agreed. Trooper Rule asked if defendant was transporting any guns, drugs, or large amounts of money. Defendant replied, "No." Then, Trooper Rule asked if he could search defendant's vehicle. Defendant responded, "Sure."
Defendant retrieved the keys to the Explorer and handed them to Trooper Rule. Trooper Rule used the keys to open the cargo door to the Explorer. He immediately noticed a hidden compartment built in the cargo area. Trooper Rule then closed the cargo door and employed his drug dog "Kilo" to circle the Explorer, starting on the right side and moving counterclockwise. When the dog reached the back of the vehicle, he alerted. At that point, Trooper Rule handcuffed defendant and Ms. Covarrubias. He also read defendant his Miranda rights more than once. Each time defendant said he did not understand, although Trooper Rule believed that he did.
On December 27, 2000, defendant was interviewed by David E. Smith. Mr. Smith is a police officer with the Garden City Police Department and works with the DEA Task Force in western Kansas. Defendant was cooperative and lucid during the interview. Mr. Smith gave defendant his Miranda rights orally in English, and defendant responded that he understood each right as it was recited. Defendant also signed a written waiver which was printed in English. Mr. Smith testified that defendant responded intelligently and appropriately to his questions. Defendant did not ask for an attorney or attempt to limit or stop the questioning. Mr. Smith stated that he felt without a doubt that defendant understood English sufficiently to intelligently participate in the interview and to waive his Miranda rights with full knowledge of the consequences. In addition to his oral answers to Mr. Smith's questions, defendant made a written statement in Spanish.
There was no duress or coercion of any kind to make defendant answer questions. Mr. Smith told defendant that he had his family to consider and that it would be in his best interest to cooperate.
Mr. Ralph Gomez testified as an expert with long experience in translating, interpreting and teaching English for Spanish-speaking persons. Mr. Gomez has worked for many government agencies, including the United States Courts, and most recently has assisted the instruction of Spanish-speaking students at Topeka High School. Mr. Gomez met with defendant one time prior to testifying in this case. Prior to the meeting, Mr. Gomez had viewed a videotape of the traffic stop in this case and examined a transcript of the conversation on the tape. Defendant was aware that the purpose of the meeting was to assess defendant's understanding of English. Mr. Gomez testified that based upon his interview of defendant, he believed defendant did not know English sufficiently to understand most of the questions posed to him by Trooper Rule and Mr. Smith.
The government has objected to the use of the transcript because of errors within it. The court agrees that the transcript does contain some errors. Nevertheless, it is largely accurate and would be of some assistance to anyone considering this matter.
ARGUMENTS FOR SUPPRESSION
Defendant's first argument for suppression suggests that Trooper Rule did not have sufficient grounds to stop defendant. However, no evidence has been forwarded to dispute Trooper Rule's account of defendant drifting over the center line. Trooper Rule's testimony is credible to the court. There were no conditions which would excuse defendant's failure to maintain a single lane of traffic. Therefore, the court shall deny defendant's first argument for suppression.
Defendant's second argument for suppression asserts that Trooper Rule's questioning was not supported by reasonable suspicion or consent. The permissible scope of an investigatory detention depends on the particular facts and circumstances of a case. The fact that this was a traffic stop permitted Trooper Rule to run a computer check on defendant's driver's license, the vehicle's registration papers, and on whether defendant had any outstanding warrants or whether the vehicle had been reported stolen. U.S. v. Holt, 229 F.3d 931, 935 (10th Cir. 2000). Additional questions may be posed if during a traffic stop the officer acquires "a particularized and objective basis for suspecting the particular person stopped of criminal activity." U.S. v. Galindo-Gonzales, 142 F.3d 1217, 1221 (10th Cir. 1998). When a driver lacks proof of permission to operate and possess a vehicle, a reasonable suspicion arises that the vehicle may be stolen. Id. at 1223. This, in turn, permits questions about the identity and travel plans of the driver and passengers. Id. at 1224.
In this case, defendant's lack of proof that he had permission to operate and possess the vehicle provided sufficient cause to ask defendant and his passenger questions regarding their travel plans, identities and relationship. The following additional facts provided further grounds to question defendant and his passenger: Trooper Rule detected a strong unexplainable chemical odor from the vehicle; the vehicle was apparently being driven across the country; the destination was only vaguely identified; the driver and passenger were unusually nervous; and the vehicle had been obtained by the registered owner only two months earlier. Trooper Rule testified, and the court concurs, that these circumstances provided reasonable suspicion that the vehicle was transporting contraband. We find that these circumstances justified investigatory questioning. The court further finds that the extent of the questioning did not exceed that warranted by the reasonable suspicion that the vehicle was stolen or carrying contraband.
Defendant also consented to answer questions. After Trooper Rule finished the warning ticket and handed the ticket and defendant's paperwork back to him, he told defendant to have a good trip and take care. Defendant understood that this meant he was free to go because defendant began to exit the trooper's car. Then, Trooper Rule asked if it would be okay if he asked defendant a couple of questions. Defendant agreed. Thus, defendant consented to being questioned about whether he had guns or drugs with him and whether the trooper could search the vehicle.
Defendant assented to the search. But, defendant contends that his affirmation was not freely and intelligently given because he has an inadequate understanding of English. The government has the burden of proving that consent was given freely and voluntarily. U.S. v. McKneely, 6 F.3d 1447, 1453 (10th Cir. 1993).
[F]or evidence obtained pursuant to a consent search to be admissible the government must: (a) present "clear and positive testimony that consent was unequivocal and specific and freely given;" and (b) "prove consent was given without duress or coercion, express or implied." United States v. Butler, 966 F.2d 559, 562 (10th Cir. 1992) (citation omitted).
As a general rule, . . . consent [is considered] voluntary where there is no evidence of coercion and the testimony establishes consent was freely given. See, e.g., United States v. Espinosa, 782 F.2d 888, 892 (10th Cir. 1986) (consent upheld where "[n]o threat, promise or force was used to obtain the consent" and dependant watched officer search vehicle without objecting) . . .Id.
There is no evidence of duress or coercion leading to the consent to search. Trooper Rule was professional and polite. He did not use a command tone in his questioning of defendant. Nor did he imply an intention to use force. Although defendant was in the patrol car when he was asked for consent to search, he appeared to know that he was free to go when he started to exit the car. His answer to the request to search was clear and unhesitating. Any reasonable person would view defendant's answer to the request to search his vehicle as an unequivocal assent.
Defendant attempts to argue that his assent may not be considered voluntary because he did not understand the question. The preponderance of the evidence is contrary to this argument. While defendant did not exhibit a perfect understanding of Trooper Rule's questions during the traffic stop, the interaction between the two men proceeded relatively smoothly. It took only seven minutes from the beginning of the stop to the completion of the warning ticket. Defendant did not tell Trooper Rule that he did not understand English. Most of the time, he seemed to know what was being asked by the Trooper and, if he did not seem to know, it could be reasonably considered a product of nervousness or evasion. After he assented to the search, he found his keys for Trooper Rule and never objected or attempted to cut off the search as it proceeded. Both Trooper Rule and Mr. Smith believed that defendant understood English sufficiently well to answer their questions.
In a similar case from the Eighth Circuit, the court affirmed a finding that there had been a legitimate consent to search. See U.S. v. Perez, 200 F.3d 576, 579-80 (8th Cir. 2000). Here, we also find that defendant's consent to search was freely, voluntarily, specifically and unequivocally given.
Finally, defendant contends that his statements to Mr. Smith on December 27, 2000 should be suppressed because he did not voluntarily and intelligently waive his Miranda rights prior to making the statements. Defendant appears to be a mature adult of at least average intelligence. At the time he was interviewed he had been detained for two days. Prior to his interview, he was advised of his rights pursuant to the Miranda decision. Defendant signed a written waiver of his rights. The evidence before the court indicates that defendant answered questions cooperatively and without significant hesitation. No physical punishment or other improper form of coercion was applied by the officers during his interview. Ultimately, defendant wrote a statement in Spanish for the officers.
Defendant argues that he did not understand the Miranda warning he was given. Once again, we believe the preponderance of the evidence demonstrates otherwise. Both Trooper Rule and Mr. Smith testified that they felt defendant understood what was being said in English. They had the advantage over Mr. Gomez of being present with defendant during the traffic stop and during the interrogation. Although a videotape of the traffic stop is in evidence and has been employed by the parties and the court in this case, the numerous inaudible segments of the tape are a handicap to any evaluation of defendant's understanding of English. Moreover, the videotape seldom shows defendant. Mr. Smith has experience using interpreters and testified that he would have used one with defendant if he had a doubt regarding defendant's ability to understand English. Mr. Smith was a credible witness to the court.
CONCLUSION
In summary, based upon all the relevant and competent information supplied to the court, the court finds that the government has proven by a preponderance of the evidence that defendant consented to the search of his vehicle and consented to being interviewed and making a statement to law enforcement officers while being detained after his arrest in this case. We further find that the traffic stop was justified at its inception and that the questioning of defendant during the traffic stop was justified by reasonable suspicion of illegal conduct as well as defendant's consent. Upon these findings, the court shall deny defendant's motion to suppress.