Opinion
Case No. 03-40060-01-RDR
January 9, 2004
MEMORANDUM AND ORDER
This case is now before the court upon defendant's motion to suppress. Defendant is facing drug charges following a traffic stop on Interstate 70 near Junction City, Kansas.
The court has held two evidentiary hearings upon this motion. At the first hearing, the court heard testimony from defendant regarding an issue of standing and from James Oehm, one of the law enforcement officers who conducted the traffic stop. On our own motion, the court ordered a second evidentiary hearing for the purpose of hearing the testimony of Richard Jimerson, another law enforcement officer who participated in the search of defendant's vehicle. At the second hearing, defendant again testified; this time on the topic of consent to search. After listening to this testimony and reviewing the videotape of the traffic stop, the court shall make the following findings of fact and conclusions of law.
James Oehm is a law enforcement officer working with others as part of the Junction City Drug Operations Group. He has extensive experience and training in traffic stops and drug interdiction. This experience includes finding contraband in the gas tanks of vehicles with the use of a fiber optic scope. On April 22, 2003 at approximately 2:13 p.m., he made a traffic stop of a 3/4 ton Ford truck which defendant was driving east on I-70. Defendant stopped the truck at a rest stop on the interstate highway.
Standing
The government has challenged defendant's standing to bring this motion to suppress.
Defendant has the burden of proof on this issue. The Tenth Circuit has discussed some of the factors to consider in a recent case, U.S. v. Valdez Hocker, 333 F.3d 1206, 1209 (10th Cir. 2003):
To establish standing to challenge a car search, the defendant bears the burden of showing that he had a "legitimate possessory interest in or [a] lawful control over the car." Because the focus of the inquiry is on reasonable expectations, however, a defendant need not submit legal documentation showing a chain of lawful custody from the registered owner to himself. [United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990)]. . . . In resolving standing issues, we consider important, but not determinative, the following factors: "(1) whether the defendant asserted ownership over the items seized from the vehicle; (2) whether the defendant testified to his expectation of privacy at the suppression hearing; and (3) whether the defendant presented any testimony at the suppression hearing that he had a legitimate possessory interest in the vehicle."
Quoting, U.S. v. Allen, 235 F.3d 482, 489 (10th Cir. 2000). The Tenth Circuit continued in Valdez Hocker to state:
Where the proponent of a motion to suppress is the car's driver but not the registered owner, mere possession of the car and its keys does not suffice to establish a legitimate possessory interest. [citations omitted]. Rather, at a minimum, the proponent bears the burden of establishing "that he gained possession from the owner or someone with authority to grant possession." United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990). . . .[If the proponent establishes] that he personally obtained possession from the registered owner . . . he would "plainly ha[ve] a reasonable expectation of privacy in the vehicle and standing to challenge the search of the vehicle."
Quoting, Rubio-Rivera, 917 F.2d at 1275.
In this case, the testimony before the court is that defendant was driving the truck of an employer and that he received permission to drive the truck from his foreman, a man named John Carpenter. Defendant testified that Carpenter in turn received permission to loan the truck to defendant from David Allred, who was a neighbor of defendant and who was an owner of the company (Shane Honey Farms) which is the registered owner of the truck. The court has no evidence contrary to the testimony of defendant. Defendant's testimony on this point is believable on its face. Therefore, we find that defendant has satisfied his burden of establishing that he gained possession of the truck from someone with authority to grant possession and, accordingly, has standing to bring this motion.
Legal grounds for the stop
Although this issue was not raised in defendant's motion to suppress, it appeared to be one of the subjects of Oehm's cross-examination. Therefore, the court expressly raised the question during the second hearing upon the motion.
Defendant was stopped because the truck he was driving did not have a front license tag. A front license tag is not required for vehicles registered in Kansas. But, the truck was registered in California, which does require a front tag. Kansas law incorporates the requirements of California law for California vehicles traveling in Kansas. See U.S. v. Ramstad, 308 F.3d 1139, 1145-46 (10th Cir. 2002) (affirming the authority of a Kansas law enforcement officer to stop a California vehicle without a front license plate under the provisions of K.S.A. 8-138a). Oehm stated that he wrote a warning ticket for a violation of K.S.A. 8-133 which concerns the display of a license plate. However, since K.S.A. 8-133 does not require a front license plate, it was not violated by defendant. Nevertheless, as the court stated inRamstad, "[c]ourts . . . repeatedly have ruled that an arrest or stop will be constitutional if an objectively valid basis for carrying out the seizure exists, even if the ground cited by the officer for justifying the stop is unconstitutional." 308 F.3d at 1145 n. 3, citing U.S. v. Bookhardt, 277 F.3d 558, 565 (D.C. Cir. 2002). Accordingly, we find that stopping defendant was not illegal.
Oehm also stopped the truck because he had received information that the truck had been stopped and searched earlier by a different officer and that officer was uncomfortable with the result of the search of the truck.
Consent to search
Defendant told Oehm that he had borrowed the truck from his employer in California and that he was driving to Indiana to visit his brother and look for a job. When Oehm did a computer check, he found that the truck was not reported stolen and that defendant was not wanted for any violation, although defendant did have a criminal history for possession of a controlled substance and a firearm.
He delivered the warning ticket to defendant along with other documents which defendant had presented. Oehm had noticed that defendant's hands and knees were trembling. He thought this level of nervousness was beyond the ordinary for a traffic stop. He knew it was common for drug couriers to drive vehicles which are not registered to them. He was also aware of defendant's criminal history as well as the origin of the trip. He decided that he would ask if he could ask more questions.
After he returned defendant's documents and paperwork to defendant, Oehm said that was all he had. Then, as defendant reached for the gearshift, Oehm asked if defendant would answer some more questions. Defendant assented.
Defendant told Oehm that he was looking for a permanent job in Indiana as a pipe fitter. He denied having anything illegal in the truck. According to Oehm, defendant also gave consent to a search of the truck, although he told Oehm that it had been searched earlier. Shortly after this consent was given, Kansas Highway Patrol Officer Jimerson arrived and assisted with the search. The time was approximately 2:23 p.m.
During the second evidentiary hearing upon the instant motion, defendant testified that he did not consent to Oehm's request to search. We find Oehm's testimony on this point more believable. This is because defendant apparently consented to a search of the vehicle when he was stopped earlier in the day. It is also undisputed that he did not object to the process of searching the truck as it continued. In addition, defendant did not offer this testimony during the first hearing to support his motion to suppress. We also find Oehm's testimony more believable and consistent on the whole than the testimony of defendant.
We note that although the traffic stop is on videotape, there is no audio because of a malfunction in the recording equipment. We also note that there is no evidence of intimidation, threat or coercion. The consent to search was given when defendant was free to leave. The court finds that the government has established that the consent to search was given freely and voluntarily.
Scope of consent
Oehm thought he saw tool marks on the straps holding the gas tank underneath the truck. He was aware that drug couriers sometimes carry drugs in the gas tanks of their vehicles. So, he retrieved a fiber optic scope from his car to look inside the tank. Oehm thought he saw kilo bundles of drugs inside the tank. He testified that Jimerson said he saw the bundles as well. Jimerson testified that he thought he saw three stacked packages wrapped in beige tape in the tank with the scope. Jimerson has long experience in the field of drug interdiction and has been involved in many cases where drugs were found in gas tanks with the use of a fiber optic scope.
Defendant has argued that looking inside the gas tank with a fiber optic scope exceeded the scope of any consent to search. We reject this contention. Defendant did not object to the search of the tank with the scope. Under the law of the Tenth Circuit, officers with consent to search a vehicle may search the entire vehicle if the suspect "does not limit the scope of a search, and does not object when the search exceeds what he later claims was a more limited consent." U.S. v. Bustillos-Munoz, 235 F.3d 505, 515 n. 5 (10th Cir. 2000) cert. denied, 534 U.S. 854 (2001). The Tenth Circuit has also affirmed general consent searches where part of a vehicle was disassembled when there was no objection. U.S. v. McRae, 81 F.3d 1528, 1537-38 (10th Cir. 1996) (removing trunk carpeting); U.S. v. Santurio, 29 F.3d 550, 553 (10th Cir. 1994) (unscrewing strip holding down interior carpet and removing carpet); U.S. v. Pena, 920 F.2d 1509, 1515 (10th Cir. 1990) cert. denied, 501 U.S. 1207 (1991) (removing rear quarter panel vent and cardboard found underneath); U.S. v. Espinosa, 782 F.2d 888, 892 (10th Cir. 1986) (removing back seat). Here, the search did not reach the extent of disassembling any part of the vehicle, unless one considers opening the gas tank to be disassembly. We believe the search fell within the scope of defendant's consent under the holdings of the previously cited cases from the Tenth Circuit. See also, U.S. v. Alcantar, 271 F.3d 731, 738 (8th Cir. 2001)cert. denied, 535 U.S. 964 (2002) (approving extensive search as within scope of consent where search included use of fiber optic scope to search gas tank and there was no objection during the search).
Continuation of detention
Oehm told defendant what he thought he saw inside the tank. Defendant said he had no idea what was in the tank and also stated that he would not have consented to the search if there was any contraband in the tank. Based on what Oehm thought he saw in the gas tank, Oehm directed defendant to drive his vehicle to the police warehouse, which was 12 miles west of where they were stopped. Defendant was not free to leave at this point. The court believes that a reasonable person in defendant's position at this time would consider himself detained and under the control of the officers. However, because the officers had reasonable grounds to believe that illegal drugs were being carried in the gas tank, there was adequate cause to support the detention of defendant. SeeU.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). In addition to what the officers thought they saw in the gas tank, they also could consider other factors in determining cause to detain defendant. These factors included: the origin and destination of defendant's trip, the fact that he did not own the vehicle, the odd circumstance of his employer loaning him the vehicle to take a long trip to look for a job, as well as defendant's nervousness and criminal record. Altogether there were sufficient grounds to continue to detain defendant.
Defendant started to drive to the police warehouse at approximately 2:48 p.m. The entire stop at the rest area took about 35 minutes. The process of searching the truck at the rest area took approximately 20 minutes.
At the warehouse, Oehm and Jimerson continued their search while defendant sat in front of the truck. They both looked in the gas tank with the fiber optic scope for about twenty minutes. However, they could not find what they thought they saw in the tank when they first looked at the rest stop on I-70. While Oehm continued to look through the scope inside the tank, Jimerson looked at other spots on the truck. Jimerson noticed an area behind the glove box that appeared to have been altered. He saw white overspray on the firewall. He thought he saw evidence of a hidden compartment. Jimerson asked Oehm, who was resting his eyes that were tired from looking in the scope, to look at what he had found. Oehm saw that a black plastic piece had been broken out and a white metal box was constructed above and behind it. This appeared to be a hidden compartment and, when Officer Oehm looked inside the compartment, he found eight bundles of methamphetamine. Defendant has argued that whatever reasonable suspicion existed to support his detention and the search of the vehicle evaporated when Oehm and Jimerson failed to see anything suspicious in the gas tank after they looked in the tank with the scope at the warehouse. Defendant cites U.S. v. Keszthelyi, 308 F.3d 557, 572 (6th Cir. 2002) and U.S. v. D. Bowling, 900 F.2d 926, 932 (6th Cir.) cert. denied, 498 U.S. 837 (1990). These cases involved second searches of premises after previous searches were fruitless and reasonable cause to believe undiscovered evidence remained had allegedly dissipated. In this instance, Jimerson found evidence of a hidden compartment behind the glove compartment of defendant's vehicle before it was determined that there was no contraband in the gas tank. Oehm and Jimerson had not found what they thought they had previously seen in the large gas tank, but they were not finished looking. The discovery of the hidden compartment provided new grounds to continue the search in a new location before the search of the fuel tank was complete and determined to be fruitless. The court finds that the officers still had a reasonable suspicion to believe there was contraband in the vehicle at the time Jimerson and Oehm found the hidden compartment. Therefore, a legally sufficient reason existed to detain defendant at the time the officers found the hidden compartment which contained the contraband in this case.
Conclusion
In conclusion, for the above-stated reasons, the motion to suppress shall be denied.
IT IS SO ORDERED.