Opinion
Case No. 2:04 CR 023 DAK.
March 18, 2005
ORDER
This matter is before the court on defendant's Motion to Suppress. Defendant, Arnold Speedy Gonzales, seeks to suppress all evidence obtained during the stop, detention, and search of an automobile he was driving on December 14, 2003. Evidentiary hearings relating to the motion were conducted on September 8, 2004 and January 12, 2005. Defendant was present at both hearings and represented by his counsel, Stephen R. McCaughey. The government was represented by Veda M. Travis. Following the hearings, the court ordered transcripts as well as briefing from the parties. The court has carefully reviewed the briefs, as well as the law and facts relating to the motion. Now being fully advised, the court renders the following Order.
I. BACKGROUND
The court finds the relevant facts as follows. John Sheets is a trooper with the Utah Highway Patrol assigned to the criminal interdiction unit. Trooper Sheets has received specialized training in narcotics interdiction and his assignments are focused on the transportation of narcotics. On December 14, 2003, Trooper Sheets was stationed in the median of Interstate 15 in Spanish Fork, Utah. Trooper Sheets had been advised by his sergeant that the Drug Enforcement Administration ("DEA") was electronically tracking a vehicle traveling from California that was believed to be transporting illegal narcotics (methamphetamine) into Utah. Trooper Sheets was informed that the vehicle was a gray Lincoln Town Car bearing Utah license plate number 184MBX. Trooper Sheets was also provided the name (Arnold Speedy Gonzales) and date of birth of the driver. Trooper Sheets was instructed that if he saw the vehicle he should try to find a reason to stop it and then obtain consent to search the vehicle.
At approximately 8:15 a.m., Trooper Sheets saw a vehicle that matched the DEA's description. Trooper Sheets noticed that the vehicle did not have a front license plate, a violation of Utah law. Trooper Sheets pulled in behind the vehicle and confirmed that the rear license plate matched the one provided by the DEA. Trooper Sheets activated his emergency lights, pulled over the vehicle, and immediately called for backup. Trooper Sheets then approached the vehicle from the right side and asked the driver for his license, registration and insurance. The driver produced a Utah license in the name of Arnold Speedy Gonzales.
During his initial contact, the trooper observed an air freshener hanging above the left rear window and a jar of MSM (Methyl-Sulfonyl-Methane) sitting on the left rear seat. Trooper Sheets knew from his training and experience that MSM is used as a cutting agent for methamphetamine and other types of narcotics and that an air freshener is often used to mask the smell of illegal drugs. Trooper Sheets asked the defendant where he was traveling from. After hesitating, the defendant responded that he was coming from St. George where he had been visiting family.
Trooper Sheets returned to his patrol car and began entering the defendant's information in his computer in order to check for warrants and to check the status of the driver's license. The trooper also began typing out a citation on his computer. The stop was conducted on a Sunday morning, during a time period when the Utah Highway Patrol often conducts routine maintenance on its computer system. As a result, Trooper Sheets was unable to check the defendant's license and registration on his computer. Trooper Sheets then attempted to check the license and registration by calling the information into dispatch, but dispatch's computer system was also down at the time. Because Trooper Sheets had been informed that the defendant was transporting narcotics, he did not fell it would safe to request consent to search the vehicle until backup arrived. In addition, Trooper Sheets was still attempting to complete a computer check of the defendant's license and registration.
While Trooper Sheets was waiting for backup to arrive, the defendant flashed his brake lights and stuck his head out the driver's side window to ask what was going on. Trooper Sheets again approached the vehicle and informed the defendant that he was experiencing computer problems and to just wait a little while longer. Due to ongoing computer problems, Trooper Sheets was never able to complete a computer check of the defendant's license and registration. After backup arrived, Trooper Sheets asked the defendant to exit the car so he could issue him a citation. Trooper Sheet's conducted a brief pat down search of the defendant and then both men moved to the area between the patrol car and the defendant's car. Trooper Sheets issued the defendant a "fix-it" ticket and returned all of the defendant's paperwork. The defendant began to return to his car, but Trooper Sheets immediately directed the defendant to "come here." The videotape indicates that the defendant heard the trooper's command to "come here" and responded by turning his head towards the trooper who then asked "mind if I ask you a couple of questions?" Trooper Sheets then asked the defendant a few questions about whether there were any guns, cash, or drugs in the vehicle. The defendant responded in the negative each time. Trooper Sheets also ordered the defendant to keep his hands out of his pockets. Trooper Sheets then asked if they could search the car. The defendant gave Trooper Sheets consent to search the car. The videotape of the stop indicates that Trooper Sheets returned the defendant's paperwork at approximately 8:38 a.m., about 23 minutes after the defendant was pulled over.
After the defendant had consented to a search of the vehicle, another officer walked a drug sniffing dog around the vehicle. The dog never indicated (i.e. bite, bark or scratch) for the presence of drugs but did spend a prolonged amount of time sniffing the right front door of the vehicle. Trooper Sheets then proceeded to search the vehicle, finding a bag a methamphetamine hidden under the right front dashboard.
II DISCUSSION
A. The Initial Stop
A routine traffic stop is a seizure under the Fourth Amendment. See United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995) (en banc). However, a routine traffic stop is analyzed under the standards applicable to an investigative detention rather than a custodial arrest. Id. "Whether a traffic stop is valid under the Fourth Amendment turns on whether `this particular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.'" United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir. 2004) (quoting Botero-Ospina, 71 F.3d at 787). "It is irrelevant that the officer may have had other subjective motives for stopping the vehicle." Botero-Ospina, 71 F.3d at 787. The defendant does not dispute that the initial stop was permissible. Trooper Sheets observed that the vehicle driven by defendant did not have a front license plate, a violation of Utah law. Accordingly, Trooper Sheets was objectively justified in stopping the vehicle.
B. The Search
It is well-established that "an officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation." United States v. Caro, 248 F.3d 1240, 1244 (10th Cir. 2001). An officer may also ask questions about travel plans during a legal traffic stop while awaiting the results of a background check. See United States v. Oliver, 363 F.3d 1061, 1067 (10th Cir. 2004). Once an officer has completed a routine background check and the driver has provided a valid driver's license and verification that he is authorized to drive the car, the driver "must be allowed to proceed on his way, without being subject to further delay by police for additional questioning." Caro, 248 F.3d at 1244 (quoting United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994). However, there are two circumstances in which further questioning is permissible.
First, if the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring, the officer may detain the driver for questioning unrelated to the purpose of the initial traffic stop. Second, if the traffic stop has become a consensual encounter, the officer may continue to question the driver.Id. at 1244.
The government argues that at the time Trooper Sheets asked the defendant for consent to search the vehicle, the traffic stop had become an consensual encounter.
Whether an individual consents to further questioning is based on the totality of the circumstances. This determination ultimately calls for the "refined judgment" of the trial court. An encounter is consensual when a reasonable person would believe he was free to leave or disregard the officer's request for information. A consensual encounter is a voluntary exchange between the officer and the citizen in which the officer may ask non-coercive questions. A police officer does not have to inform the citizen they are free to disregard any further questioning for the encounter to be consensual.United States v. Manjarrez, 348 F.3d 881, 885-86 (10th Cir. 2003) (internal citations omitted). Applying the above-criteria to the facts of this case the court concludes that a reasonable person in the defendant's position would not believe he was free to leave or disregard Trooper Sheets' questions. The defendant attempted to return to his vehicle after Trooper Sheets informed him he was free to leave but was prevented from doing so when Trooper Sheets told him to "come here." Given the totality of the circumstances, a reasonable person would not believe he was free to ignore Trooper Sheets' command to "come here" or refuse to answer the questions that followed. Moreover, during the questioning Trooper Sheets ordered the defendant to keep his hands out of his pockets-demonstrating that Trooper Sheets was continuing to exercise control over the defendant.
Given that it was not a consensual encounter, Trooper Sheets' subsequent investigative detention of the defendant was only justified if it was supported by an objectively reasonable suspicion of illegal activity. In other words, Troooper Sheets' continued detention of the defendant was only proper if he had "a particularized and objective basis for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273 (internal quotations omitted). In determining reasonable suspicion, the court can look to the collective knowledge of all the police involved in the investigation. See United States v. Cervine, 347 F.3d 865, 871-72 (10th Cir. 2003) (finding that troopers had reasonable suspicion based upon both the representations of DEA agents that the defendant was likely transporting illegal narcotics and based upon the facts upon which the DEA based its assertion).
The government has failed to present the type of detailed information concerning the DEA's investigation that was presented in Cervine. Unlike Cervine, no evidence has been presented concerning how the DEA reached its conclusion that the defendant was transporting illegal narcotics. However, the DEA did provide detailed information to the Utah Highway Patrol about the identity of the vehicle and its driver, including make, model, color, license plate, date of birth, and full name. In Cervine, it was uncontroverted that the initial stop did not provide any independent basis for the continued detention of the vehicle. In the instant case, Trooper Sheets observed things that independently confirmed the DEA's conclusion that the defendant was transporting illegal narcotics. Trooper Sheets observed a known masking agent (air freshener) in an unusual location and as well as a substance (MSM) often used as a cutting agent with narcotics. Those observations, combined with detailed information from the DEA about the vehicle and the driver, provided Trooper Sheets with a reasonable suspicion of illegal activity. The fact that an air freshener and MSM could reflect innocent conduct is of no consequence. See Cervine, 347 F.3d at 872 ("[R]easonable suspicion exists even though the facts at hand could evidence a legitimate transaction").
The court concludes that Trooper Sheets acted reasonably in detaining the defendant in order to wait for backup and a canine unit before continuing his investigation. See United States v. Villa-Chaparro, 115 F.3d 797, 802-03 (10th Cir. 1997) (concluding that an officer acted reasonably in detaining a defendant for an additional 38 minutes while he waited for a canine unit to arrive). Because the continued detention did not violate the defendant's Fourth Amendment rights, the subsequent consensual search of the vehicle was not tainted. Trooper Sheets' stop, detention, and search of the vehicle did not violate the Fourth Amendment.
CONCLUSION
Based upon the foregoing, IT IS HEREBY ORDERED that the defendant's Motion to Suppress is DENIED.