Opinion
Case No. 02-40124-01-RDR
February 6, 2003
MEMORANDUM AND ORDER
Defendant is under indictment for possession with intent to distribute more than 100 grams of methamphetamine and conspiracy to possess with intent to distribute more than 100 grams of methamphetamine. This case is now before the court upon defendant's motion to suppress and motion for discovery.
Motion to suppress
On January 8, 2003 the court took evidence concerning the motion to suppress. The court shall deny the motion as explained below.
This indictment arises from a Kansas Highway Patrol traffic stop of a 2001 Ford pickup truck. The truck was driven by Jaime Delores Davis; defendant was a passenger. The truck was stopped while going east on Interstate 70 in or near Geary County, Kansas on October 9, 2002 at 8:45 a.m., after Kansas Highway Patrol Trooper Jared Ranieri observed the vehicle traveling on the white line for approximately one-quarter of a mile and weaving onto the bumper strips twice. The driver told Trooper Ranieri that she had driven all night and was tired. The trooper asked where she was going and she said "Carolina" to attend a wedding, although she didn't know whether it was in North or South Carolina. Defendant, who awoke from sleep when the truck was pulled over, said they were traveling to North Carolina, although he also said they were going to Los Angeles before correcting himself to say they were coming from Los Angeles. Defendant produced a driver's license which belonged to his brother, Luis. Defendant identified himself as his brother. But, the picture on the license did not look like defendant, and the weight listed on the license did not appear to match defendant's weight.
Trooper Ranieri made out a warning ticket and returned to defendant's vehicle. After giving the warning ticket and license to the driver and asking her to get some rest if she was tired, Trooper Ranieri asked if she had any questions and then said they were free to go. He stepped back, but then approached the driver's window again to ask if they were transporting contraband and if they would consent to a search of the truck. Consent was given by both the driver and defendant.
By this time Trooper Ranieri had noticed several factors which made him suspicious that the truck was being used to transport drugs. Both occupants were nervous and avoided eye contact. There was a smell of air freshener. The truck was a 2001 model but had 66,000 miles on it. There were only two small duffel bags for luggage, and the driver and defendant gave odd or inconsistent answers to his questions regarding their travel plans.
The truck was a four-door pickup truck. Trooper Ranieri and a fellow trooper opened the back doors. Trooper Ranieri saw some tools which he thought, from his four years of experience with auto mechanics, might be used to drop the fuel tank. He then looked at the fuel tank and witnessed several facts indicating that the tank had been dropped. There were scratches all over the tank. Straps on the tank appeared to have been moved from their original location. Screws appeared to have been turned. Hoses were displaced from their factory setting.
Trooper Ranieri decided to look inside the tank with a fiber optic scope. At first, he did not see anything unusual. But, after a drug dog circled the truck and alerted at the nozzle of the gas tank, Trooper Ranieri adjusted the scope and looked again. This time he saw bags inside the fuel tank. He also tapped on the front and back of the tank. The sounds also made him believe that the fuel tank was holding contraband.
At this point, Trooper Ranieri told the driver and defendant that the officers were taking the truck to Junction City, Kansas to a garage so they could remove the gas tank. Defendant testified that he told another trooper that he had to go and thereby withdrew his consent to search. However, this occurred after the dog alerted and Trooper Ranieri saw the drugs inside the gas tank with the fiber optic scope.
At that juncture, the officers had probable cause to believe that the truck contained evidence of a crime. Probable cause to search stemmed from the evidence that drugs might be contained in the gas tank. See U.S. v. Anderson, 114 F.3d 1059, 1066 (10th Cir. 1997) (discovery of trap door to gas tank supplies probable cause to search the tank); see also, U.S. v. Orrego-Fernandez, 78 F.3d 1497, 1504-05 (10th Cir. 1996) (suspicion of hidden compartment in modified vehicle contributes to reasonable suspicion of criminal activity); U.S. v. Soto, 988 F.2d 1548, 1558 (10th Cir. 1993) (evidence of secret compartment in vehicle justifies arrest and removal from scene of detention); U.S. v. Toro-Pelaez, 893 F. Supp. 963, 966 (D.Kan. 1995) aff'd, 107 F.3d 819 (10th Cir.) cert. denied, 522 U.S. 845 (1997) (citing five cases for proposition that finding secret compartment in vehicle provides probable cause to arrest). Probable cause to search is further supported by the drug dog alerting to the gas tank. See U.S. v. Blaze, 143 F.3d 585, 592 (10th Cir. 1998) (alerting to a locked container); U.S. v. Klinginsmith, 25 F.3d 1507, 1510 (10th Cir.) cert. denied, 513 U.S. 1059 (1994) (alerting to vehicle); U.S. v. Ludwig, 10 F.3d 1523, 1527-28 (10th Cir. 1993) (alerting to trunk of vehicle). Probable cause to search is further supplemented by the nervous appearance of the driver and the defendant, their responses to questions about travel plans, and the smell of air freshener.
To repeat, defendant asserts that the consent to search the vehicle was withdrawn before probable cause developed to drive the truck to Junction City so the gas tank could be dropped and further searched. For the above-stated reasons, the court disagrees and denies the motion to suppress the evidence obtained from the gas tank when it was dropped and searched in Junction City.
Motion for discovery
Defendant's motion for discovery lists seven items. In response, the government has agreed to produce those items listed in the motion which actually exist. The court shall direct that these items be produced seven days prior to trial. To this extent, the motion for discovery shall be granted.
Conclusion
In conclusion, the motion to suppress shall be denied. The motion for discovery shall be granted in part.
IT IS SO ORDERED.