Opinion
No. 2:13-CR-00330-KJM-3
11-16-2015
UNITED STATES OF AMERICA, Plaintiff, v. JOHN JAMES KASH, Defendant.
ORDER
On October 13, 2015, defendant John James Kash ("defendant" or "Kash") moved to suppress physical evidence seized on May 2, 2012 following a traffic stop. ECF No. 234. Kash also requested an evidentiary hearing. Id. The United States opposed the motion. ECF No. 242. The court held a hearing on the matter on October 28, 2015, at which defendant appeared pro se with standby defense counsel Gregory Foster; Christiaan Highsmith and Justin Lee appeared for the United States. At hearing, the court submitted defendant's motion and directed the United States to lodge a copy of the dashboard camera video footage from the May 2012 traffic stop. See ECF No. 256. The United States lodged a copy of the video on October 28, 2015. See ECF No. 261.
After reviewing the video, the court set a brief evidentiary hearing for November 9, 2015, before commencing the first day of trial. ECF No. 273. The court set the hearing for the limited purpose of allowing Kash to question Utah Highway Patrol Trooper Chamberlin Neff ("Trooper Neff" or "Neff") and test Kash's theory that the May 2, 2012 traffic stop was not based on a reasonable suspicion of wrongful conduct. Id. Specifically, Kash argues Neff's stopping him for following a Jeep too closely is not consistent with the facts because, in Utah, Kash was always in front of the Jeep. On November 5, 2015, the government moved to continue the evidentiary hearing to November 12, 2015, because requiring Trooper Neff to appear on the scheduled date created a hardship. ECF No. 275. The government agreed to not mention the May 2, 2012 traffic stop in its opening statement or introduce any of the evidence subject to the motion to suppress until the court had ruled on the suppression motion. The court granted the government's motion to continue and then held the evidentiary hearing on November 12, 2015, before commencing the third day of trial. After considering the evidence and further argument presented at the evidentiary hearing, the court DENIED defendant's Motion to Suppress, as explained below.
I. FACTUAL BACKGROUND
A. Dashboard Camera Video Footage and Incident Report
The following facts are established by the dashboard camera video footage of the encounter and the Incident Report of Trooper Neff, Bates Nos. 12678-12684, ECF No. 242-1. On May 2, 2012, on interstate highway I-80 outside Salt Lake City, Utah, Trooper Neff reported he observed a Ford Fusion sedan following too closely behind a Jeep Rubicon. At approximately 11:31 a.m., Trooper Neff caught up to both vehicles and pulled over the Ford Fusion, a rental car driven by defendant.
Once the Ford Fusion was pulled over on the side of the road, Trooper Neff approached the vehicle and observed Kash sitting in the driver's seat. When Neff asked Kash if he was traveling with the Jeep, Kash responded that he was and that his girlfriend was in the Jeep. The video records Trooper Neff telling Kash he had pulled him over for following too closely to the Jeep and asking for Kash's driver's license and rental car agreement. Kash exited his vehicle to retrieve his rental agreement from the trunk. The rental agreement stated that Kash had rented the vehicle in Sacramento, California on April 18, 2012.
Trooper Neff invited but did not require Kash to join him in the front seat of his vehicle while he typed out Kash's citation. While Trooper Neff was running checks and typing out the citation, Kash and Neff discussed Kash's cross-country travels with Jamie Adams. Kash confirmed that the Jeep belonged to Jamie Adams. At one point, Kash indicated that Adams had sent him a text message stating she had pulled off the highway to get gas. Trooper Neff grew suspicious of Kash's explanation for his cross-country trip based on several inconsistencies and apparent contradictions in Kash's story. For example, Kash told Neff he was currently unemployed; he said he and Adams drove cross country in two cars simply because he is allergic to her dog; Kash said he had $9,000 to $10,000 in his car from selling construction equipment and gambling; Kash changed his timeline during their conversation; and the account Kash provided of their visit to Pittsburgh was vague and lacked details. At approximately 11:39 a.m., Trooper Neff asked Kash for his consent to search the Ford Fusion. Kash responded, "if you need to," and handed Trooper Neff his key ring, which contained a Master Lock key partially wrapped in plastic. In the trunk of the Ford Fusion, Trooper Neff found two stacks of $100 bills rubber banded together and an empty duffel bag that smelled like marijuana. Inside the center console of the vehicle, Trooper Neff located what looked like a pay/owe ledger detailing marijuana sales, marijuana strains, and prices paid for marijuana.
At approximately 11:42 a.m., Trooper Neff radioed dispatch to send a trooper to the gas station near the off ramp where he had seen the Jeep exit the highway. Troopers Rob Cowart and Kyle Ball responded and arrived at the 66 gas station to look for the Jeep. At 11:45 a.m., Trooper Neff detained Kash; however, Kash and Neff then caravanned from the traffic stop to the 66 gas station in their own vehicles.
Once they arrived at the 66 gas station, Kash identified Jamie Adams' Jeep. In response to questioning, Kash indicated that the Jeep belonged to Adams and that she had driven it to Pittsburgh. When asked whether anything in the Jeep belonged to him, Kash said, "Not that I know of." When asked if the Jeep contained large amounts of money or drugs, Kash said no. When asked about amounts of cash over $10,000, Kash indicated that the money he and Adams had acquired selling construction equipment and gambling was located with him and that he did not know of anything inside the Jeep.
While Troopers Cowart and Ball searched the area around the gas station for Jamie Adams, Trooper Neff ran his drug detection K-9 around the Jeep. The K-9 alerted to the trunk of the Jeep, and tore open the back zippered window flap. At approximately 11:59 a.m., Trooper Neff spoke to Jamie Adams. Adams said that she had driven the Jeep to Pittsburgh and that all the belongings in the Jeep were hers. Adams also indicated that nothing in the Jeep belonged to Kash and that the Jeep contained neither large amounts of cash nor drugs. Trooper Neff asked Adams for her consent to search the Jeep and she refused. Trooper Neff then told Adams he would search the Jeep without her consent because the K-9 alert gave him probable cause.
At approximately 12:04 p.m., Trooper Neff began searching the Jeep. He located a black tool box locked with a Master Lock. Adams said that she had left the key to the tool box in California. After recalling that Kash had a Master Lock key on his key ring, Neff asked Kash for his key ring. The Master Lock key was missing, except for the plastic piece of the key. It appeared as though the key had recently been broken off. When asked, Kash said that the tool box did not belong to him; Adams indicated that the tool box belonged to her. The Troopers forced open the tool box and saw two vacuum-sealed bags containing $60,000 in cash. Neff asked Kash if the money belonged to him and Kash expressly disclaimed ownership of the money.
B. Evidentiary Hearing
At the evidentiary hearing on November 12, 2015, Trooper Neff testified that he pulled over Kash's Ford Fusion because he was following too closely to the Jeep. Neff testified that the primary cause of accidents along that stretch of highway was cars following too closely. He has been working in law enforcement for ten years, and out of the 14,000 traffic stops he has executed in that time, he estimated that around 1,500 to 2,000 were for following too closely or a rear end contact.
The transcript from the evidentiary hearing is on docket at ECF No. 290.
Trooper Neff testified that on May 2, 2012, he first observed Kash driving westbound while Neff was traveling eastbound, on the other side of a median strip. Neff's vision of the westbound lanes was unobstructed, because it was a clear day, the highway was flat, and the center median divider was only 2.5 to 3-feet high. To measure the distance between cars, Neff said officers can calculate the time in seconds between two cars passing a fixed object, or they can use their experience to estimate the number of car lengths between the two cars. Trooper Neff testified that he used the car length method for calculating whether Kash was following the Jeep too closely. He testified that the minimum permissible distance between cars driving at a speed limit of 65 miles per hour is five to six car lengths, and that he observed Kash traveling about one car length behind the Jeep. Neff testified that he has acquired the learned skill of estimating distances through his experience.
Trooper Neff initially could not recall whether he was traveling or parked at the time he observed Kash following too closely. After his memory was refreshed with the Incident Report, he testified that he was traveling when he saw Kash.
When asked why the dashboard camera had not recorded the traffic violation, Trooper Neff explained that it took him 1 to 1.5 minutes to turn around at a divider in the median strip and then catch up to Kash's vehicle traveling in the westbound direction of the highway. The dashboard camera only begins recording if the officer presses a record button, turns on the emergency lights and equipment, or drives at a speed of 100 miles per hour or higher. When Kash asked whether an agency had contacted him and instructed him to make an investigative stop of Kash, and specifically whether the stop was a "whisper stop," Neff responded, "No."
Kash did not testify at the evidentiary hearing. At the hearing's conclusion, he said would like to elicit testimony from Jamie Adams. He proffered that she would say Kash had always been in front of her during the time they had been driving in Utah.
II. DISCUSSION
At the October 28, 2015 hearing, Kash confirmed that he disputes only two facts from Neff's Incident Report: he asserts he was not driving too closely behind Adams' Jeep before he was pulled over, and he says the tool box found in the Jeep belonged to him. See ECF No. 249 (Reply). Kash argues that the physical evidence found in the Ford Fusion and Jeep should be suppressed for five reasons: the traffic stop lacked a proper justification; the traffic stop was pretextual; the traffic stop was improperly prolonged; Kash did not voluntarily consent to the search of the Ford Fusion; and the evidence found in the tool box inside the Jeep was unlawfully obtained. See id.; ECF No. 234 (Mot. Suppress). The court addresses each argument and examines the legality of each government action in the sequence of events following the traffic stop on May 2, 2012.
A. Justification for Initial Stop of the Ford Fusion
1. Whether Trooper Neff Had Reasonable Suspicion
Trooper Neff reported that he pulled Kash over for following Adams' Jeep too closely. ECF No. 242-1 at 3-4. According to the Incident Report, Kash's Ford Fusion had passed the Jeep by the time Neff caught up to the vehicles and made the traffic stop. Id. at 3. Kash argues he did not follow Adams' Jeep too closely, and that he was in fact traveling in front of the Jeep the entire time. ECF No. 249. The dashboard camera video footage does not show the reported traffic violation and only begins shortly before Trooper Neff pulled Kash over, at which point the video footage shows Kash's Ford Fusion traveling in front of the Jeep. This footage is consistent with both Trooper Neff's and Kash's accounts of the occurrences leading up to the traffic stop.
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." U.S. Const. amend. IV. Because a traffic stop implicates the Fourth Amendment, it must be based on a reasonable suspicion that the vehicle's occupants have broken the law. United States v. Lopez-Soto, 205 F.3d 1101, 1104-05 (9th Cir. 2000); see also United States v. Arvizu, 534 U.S. 266, 273 (2002). To determine whether an officer had a reasonable suspicion that a traffic violation had occurred, courts must examine the "totality of the circumstances" of each case to see whether the detaining officer had a "particularized and objective basis" for suspecting wrongdoing. Arvizu, 534 U.S. at 273. "An officer is entitled to rely on his training and experience in drawing inferences from the facts he observes, but those inferences must also 'be grounded in objective facts and be capable of rational explanation.'" Lopez-Soto, 205 F.3d at 1105 (quoting United States v. Michael R., 90 F.3d 340, 346 (9th Cir. 1996)). When the admission of evidence is challenged on constitutional grounds, the prosecution must prove by a preponderance of the evidence that the evidence is admissible. United States v. Matlock, 415 U.S. 164, 177 n.14 (1974); Lego v. Twomey, 404 U.S. 477, 488-89 (1972).
Here, the court finds that Trooper Neff had a reasonable suspicion that Kash had committed the traffic violation of following a vehicle too closely. First, Trooper Neff's testimony at the evidentiary hearing was credible and consistent with his Incident Report and dashboard camera video footage. Neff had reason to be checking for cars following too closely, given the high incidence of traffic accidents in that stretch of highway caused by following too closely. He confirmed that he pulled over Kash because he was following the Jeep too closely, and Neff grounded his decision in objective facts and observations. See ECF No. 242-1 at 3. Specifically, Kash was traveling about one car length behind the Jeep. This testimony establishes that Trooper Neff had a "particularized and objective basis" for suspecting wrongdoing. See Arvizu, 534 U.S. at 273; Lopez-Soto, 205 F.3d at 1105.
Although the Incident Report states that Trooper Neff had estimated that Kash was following less than one second behind the Jeep, Neff testified that "one second" and "one car length" are equivalent measurements in this context.
Second, Trooper Neff's testimony did not expose any inherent inconsistency or provide evidence that Neff had an ulterior motive for making the traffic stop. Trooper Neff testified that his vision was unobstructed, and that his experience allowed him to easily estimate the distance between vehicles. He also testified he was not asked or instructed by any other agency to make an investigatory stop of Kash. Although Kash argued at the hearing that it would have likely taken more than 1.5 minutes for Trooper Neff to turn around and catch up with Kash to make the traffic stop, the court finds that this possible discrepancy does not undermine Trooper Neff's credibility on the issue of whether Kash was following too closely. The court finds that the government has established the lawfulness of the initial traffic stop.
2. Proffer Regarding Adams' Testimony
As noted, at the close of the evidentiary hearing, Kash for the first time expressed a desire to also question Jamie Adams, the driver of the Jeep. Kash said he would like to elicit testimony from Adams that she was driving behind Kash when Trooper Neff saw them on May 2, 2012. The court concluded that such testimony was not required, because even if Adams testified that she was driving behind Kash, it would not provide grounds to suppress the evidence. See United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986) (decision whether to grant or deny request for evidentiary hearing lies in reasoned discretion of the court); United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) ("[An evidentiary hearing] will not be held on a defendant's pre-trial motion to suppress merely because a defendant wants one. Rather, the defendant must demonstrate that a significant disputed factual issue exists such that a hearing is required." (citation omitted)).
At the October 28, 2015 hearing, Kash had only requested the opportunity to examine Trooper Neff at an evidentiary hearing. Kash did not subpoena Adams to appear at the evidentiary hearing.
The Supreme Court has held that "in order to satisfy the 'reasonableness' requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government . . . is not that they always be correct, but that they always be reasonable." Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990) (holding search is valid if officer had reasonable belief that individual had authority to give consent, even if belief mistaken); see Hill v. California, 401 U.S. 797, 803-04 (1971) (upholding search incident to an arrest, even though arrest made of wrong person); Lopez-Soto, 205 F.3d at 1106 (collecting cases); United States v. Hatley, 15 F.3d 856, 859 (9th Cir. 1994) (upholding warrantless search of vehicle police reasonably believed was mobile but was in fact immobile). In Brinegar v. United States, 338 U.S. 160 (1949), the Supreme Court explained, "Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability." Id. at 176.
The testimony Kash sought to elicit from Adams would at most suggest Trooper Neff made a factual mistake; Kash did not contend Adams' testimony could prove Neff was lying or had not actually believed Kash's Ford Fusion was following the Jeep too closely. Kash was not able to articulate how Adams' testimony could have changed the outcome under the relevant legal standards. The court finds that even if Trooper Neff had confused the vehicles, such a mistake would have been objectively reasonable. In United States v. Lang, 81 F.3d 955 (10th Cir. 1996), for comparison, the Tenth Circuit upheld a stop based on reasonable misidentification of a vehicle's passenger, even though the physical characteristics of the two individuals were "patently different." Id. at 966. The suspect the police were pursuing was described as 5'3" to 5'6" in height, weighing 140 to 150 pounds, with a shaved head or a closely cropped hairstyle and facial hair, whereas the passenger in the vehicle stopped by the police was between 5'10" and 6'0" tall, weighed 160 to 190 pounds, and had a different hairstyle. Id. In evaluating the reasonableness of the officer's mistake, the court considered the brief time period the officer had to observe the passenger and the difficulty of identifying someone from a moving vehicle. Id. Here, the two cars were traveling together, Neff was traveling in the opposite direction when he saw the cars, and he only had a brief moment to observe the cars as he passed by heading the opposite direction. As a result, the court finds on the record before it that even if Adams' testimony somehow established conclusively that Kash was traveling in front of her Jeep, Trooper Neff's confusion would have been objectively reasonable.
If Adams testifies at trial, the court will remain alert to any evidence that might cause it to revisit this conclusion.
Given the late timing of Kash's request, on the third day of trial, and the court's conclusion that Adams' testimony likely would not have affected the outcome of the motion, the court denied Kash's request to continue the evidentiary hearing in order to elicit testimony from Adams. See Walczak, 783 F.2d at 857; Howell, 231 F.3d at 621. As the court let him know, Kash may call Adams to testify in any case in defense, or question Adams regarding her location relative to Kash's car on May 2, 2015 if the government calls her to testify during its case in chief.
B. Whether Traffic Stop Was "Pretextual"
Kash further asserts the traffic stop was "pretextual." ECF No. 249 at 2. "A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop." United States v. Cannon, 29 F.3d 472, 474 (9th Cir. 1994) (citations omitted). The proper inquiry is "whether a reasonable officer 'would have' made the stop anyway, apart from his suspicions about other more serious criminal activity." Id. at 476. The subjective intentions of the officers involved are not relevant to this analysis. Whren v. United States, 517 U.S. 806, 813-15 (1996); see also Arkansas v. Sullivan, 532 U.S. 769, 771-72 (2001) (per curiam) (upholding search of motorist's car for crime not related to traffic offense).
Here, the court finds that a reasonable officer would have made a brief traffic stop based on Neff's observation that the Ford Fusion followed the Jeep too closely. Cf. United States v. Gutierrez-Mederos, 965 F.2d 800, 803 (9th Cir. 1992) (violation of following another vehicle too closely provides founded suspicion for brief investigatory stop). This is especially true given Trooper Neff's testimony that the primary cause of accidents on that stretch of highway was cars following too closely. Accordingly, the initial traffic stop did not violate Kash's Fourth Amendment rights.
C. Duration of Traffic Stop
Kash also contends that the traffic stop was unlawfully prolonged, because Trooper Neff abandoned his initial mission of writing a ticket or issuing a warning. ECF No. 234. "[A] seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Illinois v. Caballes, 543 U.S. 405, 407 (2005). "Because addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate th[at] purpose," absent the reasonable suspicion ordinarily demanded to justify detaining an individual. Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609, 1614-15 (2015) (citation and quotation marks omitted) (alteration in original). Following a valid traffic stop, an officer can check the driver's license, determine whether there are outstanding warrants against the driver, and inspect the automobile's registration and proof of insurance, because these checks ensure that vehicles on the road are operated safely and responsibly. Id. at 1615 (holding that dog sniff, by contrast, is not an ordinary incident of a traffic stop and is not fairly characterized as part of officer's traffic mission); see also United States v. Banuelos-Romero, 597 F.3d 763, 766-67 (5th Cir. 2010); United States v. Munoz, 590 F.3d 916, 920-21 (8th Cir. 2010) ("[A]fter making a traffic stop, an officer may detain the driver while he completes a number of routine but somewhat time-consuming tasks related to the traffic violation, such as computerized checks of the vehicle's registration and the driver's license and criminal history, and the writing up of a citation or warning." (citation and quotation marks omitted)).
After Trooper Neff pulled Kash's Ford Fusion to the side of the road at approximately 11:31 a.m., Neff requested Kash's driver's license and rental agreement. ECF No. 242-1 at 3-4. Neff invited Kash to sit in the front passenger seat of the police car while he ran routine checks and typed up the citation. Id. at 4. According to Rodriguez, these activities are ordinary incidents of a traffic stop and are part of the officer's traffic mission. Rodriguez, 135 S. Ct. at 1615. Trooper Neff did not prolong the traffic stop beyond what was reasonably necessary to perform these tasks.
Over the course of their conversation, Trooper Neff grew suspicious that Kash was involved in more extensive criminal conduct, based on several inconsistencies and apparent contradictions in his voluntary responses to Neff's questions. See ECF No. 242-1 at 4. Specifically, Kash told Neff he was currently unemployed; he said he and Adams drove cross country in two cars simply because he is allergic to her dog, which on its face is not rational fiscally, particularly for someone who is unemployed; Kash said he had $9,000 to $10,000 in his car from selling construction equipment and gambling; Kash changed his timeline during their conversation; and Kash's account of what he and Adams did during their visit to Pittsburgh was vague and did not include the types of details one would ordinarily expect. Id. At 11:39 a.m., approximately eight minutes after the initial stop, Trooper Neff asked Kash for consent to search the Ford Fusion. Given the totality of the circumstances, the court finds that at the time Neff searched the Ford Fusion, he had a particularized and objective basis for suspecting Kash was engaged in more extensive criminal conduct than simply following Adams' Jeep too closely. See Arvizu, 534 U.S. at 273 (reasonable suspicion standard). This reasonable suspicion justified extending the traffic stop beyond its initial traffic mission. See Rodriguez, 135 S. Ct. at 1615-17 (reasonable suspicion required to justify detaining individual beyond completion of traffic infraction investigation). The traffic stop was not unlawfully prolonged.
D. Consent to Search the Ford Fusion
Finally, as to the initial stop, Kash argues that Trooper Neff intimidated him, and that his consent to the search of the Ford Fusion was not given voluntarily. "Voluntariness poses a question of fact to be determined from the totality of circumstances." Gutierrez-Mederos, 965 F.2d at 803 (upholding validity of vehicle search where evidentiary record made clear it was based on voluntary consent). The court should consider "those [facts] that, in the district court's judgment, in fact influenced the defendant's decision to consent to the search." United States v. Vasquez, 858 F.2d 1387, 1389 (9th Cir. 1988) (quoting United States v. Gomez, 846 F.2d 557, 560 (9th Cir. 1988)). The Ninth Circuit has found the following factors relevant to whether consent is voluntary:
(1) whether the defendant was in custody; (2) whether the arresting officers have their guns drawn; (3) whether Miranda warnings have been given; (4) whether the defendant was told he has a right not to consent; and (5) whether the defendant was told a search warrant could be obtained.
Id. at 1389-90.
Miranda v. Arizona, 384 U.S. 436 (1966).
Miranda v. Arizona, 384 U.S. 436 (1966).
At the October 28, 2015 hearing, the court asked defendant to explain why the search was not consensual. Kash responded that if he had not consented, it would have delayed the stop and Trooper Neff would have used the K-9 that was in his police car to search the Ford Fusion. When asked whether Neff told him the stop would be delayed and the K-9 would search his car if he did not consent, Kash responded that Neff never said it. Based on the available evidence, it appears Kash drew this conclusion himself and determined it was in his best interest to consent to the search. Such a calculation does not make consent involuntary under the Fourth Amendment. The dashboard camera video footage of the traffic stop shows that Trooper Neff did not threaten or coerce defendant into giving his consent. Neff simply asked Kash if he could search his vehicle, and Kash responded, "if you need to." Kash then handed Neff his keys. Although Trooper Neff did not tell Kash he had a right not to consent, their interactions had been conversational and cordial up to that point, Kash had not been required to sit in Neff's car or taken into custody, and Trooper Neff did not draw his gun. See Vasquez, 858 F.2d at 1389-90. Kash did not protest or object to the search at any point. Based on the totality of the circumstances, the court finds Kash's consent was given voluntarily, and was not the result of duress or coercion. The search of the Ford Fusion did not violate Kash's Fourth Amendment rights.
Although Trooper Neff testified at the evidentiary hearing that he "probably" would have conducted a K-9 sniff of the Ford Fusion if Kash had withheld his consent, this testimony is speculative and does not affect the court's analysis of whether Kash voluntarily gave his consent. --------
E. Search of the Jeep and Tool Box
1. Standing
"Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (citations omitted). A defendant has standing to challenge the legality of a search on Fourth Amendment grounds only if he had a property interest protected by the Fourth Amendment that was interfered with or had a reasonable expectation of privacy that was invaded by the search. United States v. Padilla, 111 F.3d 685, 688 (9th Cir. 1997); see also Rakas, at 138-49; Rawlings v. Kentucky, 448 U.S. 104, 104 (1980); United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir. 1995). Courts generally have found that a conspirator does not have a property interest or reasonable expectation of privacy in a car that he was not driving and did not own. Padilla, 111 F.3d at 686, 688.
In the dashboard camera video footage, both Kash and Adams indicated that the Jeep belonged to Adams and that Kash had no property in the Jeep. When the officers located the tool box in the Jeep, Adams and Kash said that the tool box belonged to Adams. At the October 28, 2015 hearing, however, Kash asserted that he in fact owned the tool box that was found in the Jeep, and that his ownership was established by the fact that he was in possession of the key to the tool box at the time of the search. Even assuming Kash owned the tool box, and has standing to challenge the search of the tool box, the search of the Jeep and tool box did not violate his Fourth Amendment rights for the reasons discussed below.
2. K-9 Sniff
The initial K-9 sniff of Adams' Jeep was lawful. The Supreme Court has held that subjecting property within a public place to a trained narcotics detection K-9 is not a "search" within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696, 707 (1983) ("We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure."). Here, the officers conducted a K-9 sniff around Adams' Jeep while it was parked at the 66 gas station, which is a public place. See Payton v. New York, 445 U.S. 573, 587 (1980) (distinguishing between warrantless seizure in open area and such a seizure on private premises to which access is not otherwise available for the seizing officer) (citing G. M. Leasing Corp. v. United States, 429 U.S. 338, 354 (1977)). As a result, the K-9 sniff of Adams' Jeep did not violate the Fourth Amendment.
3. Search of Jeep
The search of the Jeep following the K-9 sniff also was lawful. The Supreme Court has held that officers may search a vehicle for contraband goods concealed and illegally transported without a warrant, when the officer has probable cause. Carroll v. United States, 267 U.S. 132, 153-56 (1925); see also Maryland v. Dyson, 527 U.S. 465, 467 (1999) ("If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more." (citation omitted)). A police officer has probable cause to conduct a search when, given the totality of the circumstances, "'the facts available to [him] would warrant a [person] of reasonable caution in the belief' that contraband or evidence of a crime is present." Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (alterations in original) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion)).
The Supreme Court has held that a K-9 alert can give an officer probable cause to search a vehicle when the drug-detection dog is well-trained and reliable, and other circumstances surrounding a particular alert do not undermine the case for probable cause. Id. at 1055-59. Here, when Trooper Neff released his K-9, Tank, to sniff Adams' Jeep, Tank made his way to the rear of the vehicle and began to bite the rear of the soft top of the Jeep. According to the Incident Report, this is one of Tank's trained final responses when he smells the odor of narcotics. ECF No. 242-1 at 5. The Incident Report states that Tank is a veteran narcotics canine that has been certified several times in narcotics detection, most recently in February 2012, a mere three months before the May 2012 incident at issue here. Id. Trooper Neff has been trained on what Tank's alerts and indications are and has strong experience in reading Tank's reactions. Id. Kash has not challenged the reliability of the K-9 or challenged the circumstances surrounding the dog's alert. Based on the government's undisputed assertion of the K-9's reliability and a consideration of the totality of the circumstances, the court finds that the K-9's alert gave the officer probable cause to search the Jeep.
4. Search of Tool Box
The search of the tool box inside the Jeep raises additional questions. In determining whether a particular governmental action violates the Fourth Amendment, courts first consider whether the action was regarded as an unlawful search or seizure under the common law of the founding era. Wyoming v. Houghton, 526 U.S. 295, 299 (1999). When history provides no conclusive answer, courts evaluate the reasonableness of the scope of a search "by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Id. at 300.
In the context of the automobile exception, the Supreme Court has established that if police officers have probable cause to search a lawfully stopped vehicle, they may conduct a warrantless search of closed containers found inside the vehicle that may conceal the objects of the search. California v. Acevedo, 500 U.S. 565, 580 (1991); United States v. Ross, 456 U.S. 798, 825 (1982). The Supreme Court in Ross held that "[t]he scope of a warrantless search of an automobile . . . . is defined by the object of the search and the places in which there is probable cause to believe that it may be found." Ross, 456 U.S. at 824; see also Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 388 (2009) ("The Court has generally held that the reasonableness of a search's scope depends only on whether it is limited to the area that is capable of concealing the object of the search."). In Wyoming v. Houghton, the Court extended the reasoning of Ross to searches of passengers' belongings found in the car. 526 U.S. at 307. The Court reasoned that individuals have a reduced expectation of privacy with regard to the property that they transport in cars that travel public thoroughfares, and "the 'ready mobility' of an automobile creates a risk that the evidence or contraband will be permanently lost while a warrant is obtained." Id. at 303-04 (citing California v. Carney, 471 U.S. 386, 390 (1985)).
Here, during the search of the rear of the Jeep, Trooper Neff located a black tool box that was locked with a new Master lock. ECF No. 242-1 at 6. Adams said that the tool box belonged to her and that she brought it to help fix her Jeep if it broke down. Id. Trooper Neff asked Adams where the key for the tool box was, and she said she had left in California. Id. According to the Incident Report, Trooper Neff suspected Adams was lying about the contents of the tool box, because she could not use the locked tool box to help her fix her Jeep if she left the key at home in California. Id. In Trooper Neff's experience, he had previously dealt with contraband being locked inside secure containers. Id. Trooper Neff also remembered that there had been a Master lock key located on the key ring of Kash's rental vehicle. Id. When Trooper Neff asked Kash for his keys, the Masker Lock key was missing except for the plastic piece that attaches to the key, which looked as if it had been broken off recently. Id. Trooper Neff ultimately used a pair of bolt cutters to open the tool box, and observed several tools, including 1/4 inch sockets without a 1/4 inch wrench. Id. Most of the tools would not be helpful if the Jeep broke down. Id. Trooper Neff concluded that the tools were purposely placed props in the tool box, so he removed the top shelf and saw newspaper lining the bottom of the box. Id. He removed the tool box and saw two thin vacuum-sealed bags containing stacks of cash. Id.
Based on these facts, the court finds that the scope of the search of the tool box was reasonable under the Fourth Amendment. Trooper Neff had probable cause to search the Jeep for drugs based on the K-9 alert, and the totality of the circumstances provided a reasonable, objective basis for suspecting there may have been unlawful controlled substances in the locked tool box. This analysis would not change if the tool box actually belonged to Kash. First, Kash and Adams each told the officers that the tool box belonged to Adams, so Kash's actual ownership of the tool box likely would not have affected the officers' probable cause analysis. Second, even if the officers suspected that the tool box actually belonged to Kash, the officers had previously found contraband in Kash's Ford Fusion, and there was evidence that Kash and Adams may have been working together, particularly, Kash's possession of the Master Lock key, and their two-car caravan across country. As a result, it would have been just as likely that the tool box contained controlled substances had the tool box belonged to Kash. See Houghton, 526 U.S. at 304-05 (discussing government's stake in searching passenger's belongings in car). The search of the tool box did not violate Kash's Fourth Amendment rights.
III. CONCLUSION
For the foregoing reasons, defendant's motion to suppress physical evidence seized on May 2, 2012 following a traffic stop is DENIED.
IT IS SO ORDERED. DATED: November 16, 2015.
/s/_________
UNITED STATES DISTRICT JUDGE