Opinion
Case No. 2:02CR756 DB
November 30, 2003
MEMORANDUM OPINION AND ORDER
I. Introduction
Defendant Deandre Gregoire, was arrested on November 17, 2002 after a search of his vehicle by law enforcement officials yielded approximately 17 kilograms of cocaine. As a result, defendant was indicted in a single count indictment on or about December 5, 2002, charging him with violating 21 U.S.C. § 841(a)(1) by knowingly and intentionally possessing with intent to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance as defined by 21 U.S.C. § 812, and punishable under 21 U.S.C. § 841(b)(1)(A).
Before the Court is defendant's motion to suppress all the physical evidence and all the statements made by defendant associated with the traffic stop and search of his vehicle on November 17, 2002, including the "observations" of the law enforcement official who conducted the traffic stop and search of defendant's vehicle. Defendant claims that this encounter violated his Fourth Amendment right against unreasonable searches and seizures. Defendant asserts three independent arguments in support of his motion: 1) "there was no basis for the traffic stop as the purported violation of the Utah Code relating to signaling was a pretext"; 2) "defendant did not consent to the search of his vehicle"; and 3) "any purported consent is vitiated by the unlawful nature of the detention itself and/or by the fact that the search exceeded the scope of defendant's purported consent."
On March 18, 2003 an initial evidentiary hearing was held. At that hearing the video tape from the law enforcement official's patrol car video recorder camera unit, which captured on video tape the roadside encounter in question, was proffered and admitted into evidence. Later, pursuant to a stipulation by the parties, the transcription of that video was admitted into evidence. Subsequent to this initial evidentiary hearing and briefing by the parties, a second hearing was held on September 12, 2003, The purpose of this hearing was to visit the site in question in this case, specifically the on-ramp merging lane of Exit 158, Green River, Utah, and to clarify, geographically, testimony offered at the initial evidentiary hearing.
In citing to record the Court designates the transcript of the initial March 18, 2003 hearing as "Tr."; the transcript of the second hearing in Green River, Utah on September 12, 2003 as "Tr2."; the video tape of the encounter as "V."; and the transcription of the video tape as "Vtr.".
II. Evidence
At the hearing held on March 18, 2003 one witness, Trooper Steve Salas of the Utah State Highway Patrol, testified. Trooper Salas performs his regular duties along a 100 mile stretch of Interstate-70 ("1-70" or the "freeway") running mostly west to east and located in south central Utah between the rural towns of Salina and Green River, Utah (Tr. p. 8, Tr2 p. 10). Trooper Salas has participated in over 130 hours of formal drug interdiction training from schools that specialize in such training for law enforcement officials (Tr. p. 9).On November 17, 2002 at approximately 9:45 a.m. Officer Salas was on duty and traveling eastbound on 1-70 at Exit 158 when he observed the defendant's vehicle, a red Dodge Caravan (the "vehicle"), traveling eastbound in the merge lane of the freeway on ramp (Tr. pp. 10, 47). From about 100 yards on a clear day the officer observed the vehicle, without signaling, move left out of the lengthy merge lane marked by a solid line as he crossed the dotted line that connects the merge lane into the right travel lane of the freeway (Tr. pp. 11, 60). The officer viewed the defendant's failure to signal as a traffic violation under Utah Code Annotated 41-6-69-1, subparagraph A (Tr. pp. 14, 59). The officer stated that he routinely enforced and continues to enforce this statute by stopping motorists who fail to signal while merging onto the interstate (Tr.2 p. 12). In response to defendant's failure to signal, the officer activated his emergency lights, which in turn activated his patrol car video camera and then he stopped the vehicle (Tr. p. 11).
The officer had, a short time earlier, also seen the vehicle in question as he pulled out of the median approximately two miles west of Exit 158 traveling eastbound in pursuit of a passenger car (the "Mustang") the officer determined was speeding. As the officer pursued the speeding Mustang he passed the vehicle in question. The officer eventually pulled the Mustang over off the freeway at the end of the off ramp of Exit 158 and under the underpass of 1-70. While performing the stop of the Mustang the officer noticed the vehicle in question drive past him presumably to patronize one of two gas stations located about five hundred yards to the northeast of the freeway underpass at Exit 158 (Tr. pp. 36, 37, 38 and Tr.2. pp. 9, 10).
The officer approached the vehicle on the passenger side and observed it was occupied by one person, the defendant, whom he asked for his drivers license. The defendant provided an Ohio drivers license. The officer also observed that the vehicle had Ohio license plates and that the rear seat was folded as a bed with a sleeping bag (Tr. p. 15).
Defendant then asked the officer why he had stopped him. The officer said because he failed to signal while entering the freeway. Defendant responded that he had signaled and asked if it was possible the officer just did not see it. The officer stated he did not observe a signal as he traveled closely behind the defendant (Tr. p. 16).
The officer asked defendant where he was going. The defendant responded that he had been in Las Vegas, Nevada visiting his grandfather who had recently suffered a stroke, but then abruptly, in the same sentence, said he had gone to see friends in Las Vegas, and then said he had lost his money in Las Vegas so he was returning home (Tr. p. 16), The officer asked defendant if he had a vehicle registration, In response defendant handed him a stack of papers and the officer started to look through them for the registration. As he was doing so, the defendant engaged the officer in conversation, telling the officer that cops scared him because he had a cousin that was a sheriff and he was mean to people. He also stated that he thought people who do not attend church are evil and some scare him (Tr. p. 17). The officer could not find a registration in the papers defendant had given him, so he asked again for the registration. After some searching by defendant he was able to locate the registration.
During the time it took defendant to find the registration, the officer asked additional questions about the defendant's travels and noticed a strong odor coming from the vehicle which he recognized as air freshener. The officer commented that the air freshener odor was strong and asked what type it was because he could not see it in the vehicle. The defendant became flustered by the question and stated he had just sprayed it in the vehicle and the odor remained because it was so strong (Tr. p. 19).
The officer then returned to his patrol car to check the license and registration and to prepare a warning for failure to signal. Both the drivers license and the registration were from Ohio and were valid according to the check he conducted (Tr. pp. 17, 18, 19), The officer then re-approached the passenger side of the vehicle and returned the license and registration to the defendant The officer then gave the warning for failure to signal to defendant and explained that he had no further obligation to pay a fine or contact a court, but that he did need to remember to signal. The officer did not ask any further questions at this point (Tr. pp. 20, 40).
The defendant then engaged the officer in conversation again contending that he was sure that he had signaled because it is his habit to do so, In fact, he showed the officer how he normally engages and then manually disengages the turn signal stalk while making a turn because his vehicle does not automatically disengage the turn signal stalk after it is engaged to make a turn. The defendant then engaged the signal and voluntarily exited the vehicle to see if the signal light at the rear of the vehicle was operational. It was, according to the defendant. The officer remained at the front passenger side of the vehicle watching the blinking signal light on the dashboard (Tr. pp. 20, 21, 43). At this point the officer felt defendant may be confused and explained that he did not issue the warning for failure to signal as defendant made a turn, but rather for failing to signal as he moved from the merge lane onto the lane of travel on the freeway. The defendant seemed to indicate that he now understood and said "okay," No further conversation regarding the traffic violation occurred. After this conversation and after having returned defendant's license and registration, the officer asked defendant if he could ask him a few more questions about his travels. The defendant responded affirmatively (Tr. p. 21). The officer asked when he had left for Las Vegas and defendant responded Friday and volunteered that he had received another traffic citation for speeding. The officer asked if he could see it and defendant gave it to him. The citation was issued on Interstate-15 in San Bernardino, California on November 16, 2002 at 3:00 a.m. — approximately 30 hours earlier (Tr. pp. 21, 22). The defendant had not mentioned being in California so the officer asked him why he did not tell him he had been in California. Defendant responded that he had not gone to California, but he had gone to Barstow, Nevada, to shop at the outlet stores there, The officer explained that Barstow was in California. The officer asked defendant why he traveled all the way to Barstow to shop and defendant responded that he did so because it was cheaper than in Las Vegas (Tr. pp. 22, 23). The officer was then interested that a person would drive such a long distance to shop and asked defendant what he had purchased in Barstow. The defendant stated he did not purchase anything because he did not have enough money to do so (Tr. p. 24).
The officer then asked defendant where he had stayed on his trip. The defendant stated he had stayed with a friend. The officer asked the name of the friend and defendant stated his friend's name was "Spank," but that he did not know if that was his friend's given first name, and that he did not know his friend's last name (Tr. p. 24). The officer asked what he did with his friend on the trip. The defendant stated they had gone to the casinos and lost all their money and he had only $300.00 credit on his credit card (Tr. p. 24).
At this point, the officer was suspicious of the defendant's traveling circumstances because of the many discrepancies with the story including that during the initial minutes of the encounter defendant stated the reason for his trip was to visit his grandfather who had suffered a stroke, that he had traveled at least two hours to shop but then did not purchase anything because he could not afford to do so, that the California speeding citation indicated defendant was in Barstow at 3:00 a.m. a time when the outlet stores were likely not open, and that he had traveled from Ohio to Nevada to visit a friend whose last name he did not know (Tr. p. 25). The officer also stated that the compressed time element in relation to the distances defendant claimed he had traveled, the "bed" in the back of the vehicle, the small amount of luggage in the vehicle and the air freshener odor further caused him to be suspicious of defendant's traveling circumstances (Tr. p. 26).
Because of these suspicions the officer asked defendant if he had anything illegal in his vehicle. The defendant stated that he did not. The defendant then told the officer that he could search the vehicle if he wanted to do so (Tr. p. 26).
The officer asked defendant if he had any weapons in the vehicle, any alcohol or any marijuana in the vehicle. Defendant responded that he did not. The officer then asked defendant if he had any cocaine in the vehicle. The defendant looked down towards the floorboard of the vehicle and nodded his head to indicate that he did not. The officer then asked if he had any heroin in the vehicle. The defendant stated that he did not (Tr. pp. 26, 27).
At this point the officer asked defendant if could search the vehicle. Defendant stated that he could search the vehicle (Tr. p. 27). The defendant then exited the vehicle again. The officer asked him if he had any weapons and defendant said he did not. The officer asked if he could seed defendant's waistband. Defendant stated that he could and then defendant lifted his shirt so the officer could see his waistband (Tr. p. 27). The officer commenced to search in the rear of the vehicle and removed the sleeping bag so he could see the floor carpet (Tr. pp. 27, 28). The officer noticed that the rear seat bolts attaching the seat to the floor had been recently removed and replaced with non-factory specification bolts. He knew this due to the color of the bolts and based on his drug interdiction training that specifically involved Dodge Caravans of this type. He then noticed the carpet in the cargo area of the vehicle had rolls in it so as to not be smooth or tight to the floor. He noticed the carpet was pulled away from underneath the plastic molding designed to secure it in place at the edges (Tr. p. 28).
The officer stated that based on his training with vehicles like defendant's he was aware that such vehicles as delivered from the factory have a false floor that run from the front seat to the rear bumper of the van and is 2-3 inches in depth (Tr. pp. 28, 29). The officer stated that based on this knowledge coupled with the non-factory bolts and rolled carpet, he directed his search to the area behind the front driver's seat. He found the plastic molding holding down the carpet in that area to be loose and he removed it. The officer then placed one hand inside the carpet and his other hand underneath the van in an attempt to determine the depth of the floor of the van. The officer stated that as he did so he discovered a 6-8 inch depth (Tr. pp. 29, 30). The officer stated that based on his training he believed this 6-8 inch depth, rather than a factory specification 1-3 inch depth, indicated a false compartment (Tr. p. 30).
At this point, he approached the defendant and told him he thought defendant had something illegal in his vehicle and that the search would take longer than he had originally indicated it would. The defendant became concerned and said he was just trying to get home and asked if that was illegal, The officer believed defendant was asking him if concealing drugs was legal and said that it was not legal to haul contraband in a vehicle. The officer stated that he would continue the search to which defendant made no response (Tr. pp. 30, 31).
The officer stated he attempted to find the entry door to the compartment but that the carpet was glued to the frame in a non-factory specification manner and that the underside of the vehicle was freshly undercoated, thereby preventing him from finding the entry door. The officer then drilled two holes through the undercoating from underneath the vehicle but that they were not big enough to see inside the false compartment. The officer then used a screwdriver to chip away some undercoating and discovered pieces of "bondo", which is an after-market dent filler for auto repair, as it began to fall off of the underneath of the vehicle. The officer then saw a non-factory specification weld holding a piece of sheet metal that ran from the outside running board to the inside frame rail of the vehicle. The officer then took a screwdriver and pried the sheet metal away from the frame rail and discovered a black square kilo-shaped package which he believed to be drugs (Tr. pp. 31, 32, 33). At that point, the officer placed defendant in handcuffs and explained he was doing so because he had found drugs in the vehicle. A tow truck was summoned and defendant was transported to the Utah Highway Patrol office in Green River, Utah (Tr. p. 34).
During the search the defendant asked how much longer it would take and the officer told him he wanted to look in the floor of the vehicle, The defendant made no response. The defendant never asked the officer to stop searching and never told the officer that he wanted to go on his way — despite having two opportunities to do so after he twice gave consent to the search. The search of the vehicle lasted approximately 45 minutes and the entire stop lasted approximately one hour (Tr pp. 33, 35).
Based on the evidence, the Court enters the following:
III. Findings of Fact
1. On November 17, 2002 Trooper Steve Salas, of the Utah Highway Patrol, was on duty traveling eastbound on 1-70 when he observed a red Dodge Caravan mini-van registered to and driven by the defendant, Deandre Gregoire, move left to merge from the merge lane of the 1-70 Exit 158 on ramp into the right travel lane of the freeway. The defendant did not signal his entrance onto the freeway. The lengthy merge lane of the on ramp and the travel lane of the freeway in question are separated by a solid line until a move to the left is required to merge at which point the solid line becomes a dotted line. At this point, in order to properly execute a merge, a move to the left is required to enter the travel lane of 1-70, Otherwise, a vehicle would enter the emergency lane on the right side of the freeway and, if it proceeded in that direction, would leave the pavement and find itself in the desert-like landscape indigenous to the locale. The officer saw defendant's failure to signal prior to moving left to merge as a violation of Utah law, specifically Utah Code Annotated 41-6-69(1). Accordingly, the officer stopped the vehicle. The stop occurred at approximately 9:45 a.m. on a clear morning at approximately milepost 159 just east of Exit 158, Green River, Utah.
This testimony by the officer that he did not see defendant signal when he moved left to merge onto the freeway is his sworn testimony at two evidentiary hearings held by this Court. Defendant in unsworn testimony during the stop stated that he believed he signaled because he always signals when he turns. The officer explained that he did not stop him for failing to signal a turn, but a merge. The defendant seemed to understand and accept the explanation, thereby possibly conceding that he did not signal before he moved left to merge. Even if defendant maintains he signaled, the Court finds the sworn testimony of the officer to be more credible than that of the unsworn statement of the defendant.
There is some confusion in this case with regard to certain mileposts because the State of Utah, presumably after some sort of survey, changed the mileposts in the area in question after the stop occurred and the initial evidentiary hearing in this case was held. Nevertheless, after a Court ordered visitation to the site in question, it is clear the stop occurred approximately one mile east of the freeway exit that, on the day of the site visit, was designated by sign as Exit 158, Green River, Utah.
2. The officer approached the vehicle at the passenger side front window and observed one occupant, the defendant. The officer asked defendant for his drivers license. The defendant provided an Ohio drivers license. Defendant then asked the officer the reason for the stop and the officer responded he stopped him because he failed to signal as he entered the freeway. Defendant claimed he signaled. The officer asked defendant where he was going. The defendant told the officer he had been in Las Vegas to visit his ill grandfather, and then said he went to visit friends and lost all of his money at the casinos and was traveling back home. The officer requested the defendant's vehicle registration and it was eventually provided. The officer noticed the back of the vehicle was arranged like a bed with seats folded and a sleeping bag spread out. The officer noticed a strong air freshener odor. When asked about the air freshener odor defendant became flustered.
3. The officer returned to his patrol car and verified the license and registration as valid through his dispatch check and prepared a warning. He returned to the passenger side window and leaned on its frame as he returned the drivers license and registration to defendant. The officer handed the defendant the warning and explained that he had no further obligation to contact a court or pay a fine, but that he should signal in the future. At this point, the defendant was free to proceed on his way.
4. The defendant then engaged the officer in conversation contending he had signaled and always does so as a matter of habit when he makes a turn. The defendant voluntarily engaged the turn signal and voluntarily exited the vehicle to see if the signal light at the rear of the vehicle was operational. It was. Defendant then got back in his vehicle. Sensing some possible confusion, the officer explained he issued the warning for failure to signal the merge, not when he turned onto the on ramp. Defendant then said "okay."
5. The officer then asked for defendant's consent to ask some more questions. Defendant consented to these additional questions. Defendant's responses to the officer's questions formed a travel story with several discrepancies. The defendant did not know the last name or first given name of the friend he had traveled from Ohio to visit. He only knew him as "Spank." The defendant did not provide any details regarding his grandfather's condition. The defendant claimed he drove some distance to Barstow, California to shop specifically because the outlet stores there are cheaper than shopping in Las Vegas, but did not buy anything because he did not have the money to do so. A California speeding citation issued to defendant showed he was in Barstow at 3:00 a.m., a time when most stores are closed. These discrepancies, among others, caused the officer to reasonably suspect defendant's account of his travel plans was not accurate.
6. Based on these suspicions, the officer asked defendant if he had anything illegal in his vehicle. The defendant said he did not have anything illegal in his vehicle. The defendant then voluntarily invited the officer to search his vehicle if he wanted to do so. In response, the officer first asked defendant whether he had any weapons, alcohol or drugs. Defendant responded no and looked down at the floorboard of the vehicle and nodded "no." The officer then specifically asked defendant if he could search the vehicle. Defendant consented and stated that he could search the vehicle. Defendant then exited the vehicle. The officer confirmed defendant had no weapons on his person by asking defendant if he would show him his waistband, and the officer commenced his search of the vehicle.
7. The officer, a member of a designated drug interdiction team, has over 130 hours of specialized training relating to drug crime interdiction relating to vehicles. This training included specific training that involved the Dodge Caravan mini-van like the vehicle in question. Due to this training the officer was familiar with the factory specifications of this vehicle and had knowledge that there is a 1-3 inch deep false floor that runs from behind the front seat to the rear of the vehicle. The officer noticed that the cargo area carpet of the vehicle had ripples in it and upon closer inspection discovered that it had been removed and re-glued to the frame. The officer then removed the plastic trim over the carpet behind the front seat and reached underneath it with one hand and underneath the vehicle with his other hand in an effort to determine the depth of the false floor. The depth was 6-8 inches. This depth indicated to the officer the probability that a hidden compartment existed underneath the vehicle. Using a drill and screwdriver the officer discovered indicia of materials designed to conceal the compartment including fresh underrating, "bondo" or dent filler, fresh welds, and sheet metal. The officer was then able to locate and pry open the hidden compartment located underneath the vehicle. The officer found a black kilo-shaped brick package. The officer placed defendant in custody and explained that he had found suspected contraband in the hidden compartment.
8. At no time after defendant gave his consent to be questioned about his travel plans did he ask the officer to stop questioning him. Similarly, at no time after he twice gave his consent to the search of his vehicle did he ask the officer to stop searching the vehicle. Nor did he limit the scope of the search of the vehicle. Nor at anytime during the stop and search of his vehicle did defendant ask the officer to let him go on his way. This is the case despite the fact that defendant on two occasions during the search had the opportunity to withdraw his consent to the search.
9. The search took place in a public place open to plain view in daylight hours. The defendant was not in handcuffs or physically restrained at the time of consent or during the search. The officer did not before, during or after the search use a threatening voice, threatening language or threatening movements in an effort to intimidate the defendant. The officer had not drawn a weapon nor threatened the use of a weapon in an effort to restrain or intimidate the defendant. The defendant's consent was unequivocally given in the context of and in response to the officer's inquiry whether he had drugs or anything illegal in the vehicle. There is nothing in the facts of this case to indicate that the defendant was confused when he gave consent to the search of this vehicle, first sua sponte, and then again after the officer expressly asked for his consent to search the vehicle.
IV. Discussion and Analysis
The defendant has challenged the actions of the officer on three grounds. First, that the stop was improper because it lacked a legal basis. Second, and in the alternative, that the search of defendant's vehicle was without consent. Third, and again in the alternative, that the search exceeded the scope of the consent, or that the consent was not voluntary. Therefore, defendant argues that the stop and search of his vehicle violated defendant's rights under the Fourth Amendment to the United States Constitution against unreasonable searches and seizures. Accordingly, the defendant argues, all the physical evidence found during the search and stop, including the officer's "observations" should be suppressed from the evidence in this case. The United States argues the officer's actions were justified because the stop of the vehicle was proper from its inception based on an observed traffic law violation and because the defendant gave unequivocal consent to the officer's questions and twice gave consent to the search of his vehicle, Therefore, the United States argues, under the law of this Circuit, that the motion to suppress should be denied and, accordingly, all of the physical evidence and other evidence discovered during the stop and search of the vehicle should be allowed into evidence in this case.
The parties have not raised any issues related to standing or the mandates of Miranda v. Arizona. Therefore, the Court will not discuss any such possible issues.
A. The stop
Defendant argues that there was no legal justification for initiating the traffic stop and detaining him because it is not against the law in Utah to enter a freeway without signaling. Therefore, defendant argues the evidence discovered was the result of an unlawful detention and should be suppressed. See United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996). The United States argues the stop was based on an observed traffic violation and that the initial detention pursuant to the stop was not an unreasonable seizure.
It is quite unclear from defendant's brief whether the basis for challenging the stop from its inception is that it was a pretext stop, or rather that no clear traffic violation occurred, It appears defendant advances both arguments. However, under the clear law of this Circuit, any argument that a stop is invalid because it is pretextual is wholly without merit. Moreover, the subjective motivation of the officer when he conducts a stop is irrelevant if he observes a traffic or equipment violation. See United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995); Whren v. United States, 517 U.S. 806 (1996). Therefore, the Court will only address whether the stop was justified based on an observed traffic violation.
The Fourth Amendment to the Constitution of the United States guarantees the right against unreasonable searches and seizures. "A traffic stop is a seizure within the meaning of the Fourth Amendment." United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995), Such a stop "is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring." Id. at 783.
The Court has found that the officer observed the defendant move left to merge onto the freeway without signaling. The officer saw this as a violation of Section 41-6-69(1) of the Utah Code which reads as follows:
(a) A person may not turn a vehicle or move right or left upon a roadway or change lanes until the movement can be made with reasonable safety and an appropriate signal has been given.
This statute requires a motorist to signal on three separate occasions: (1) when turning, (2) when moving right or left upon a roadway, and (3) when changing lanes. "Turning" seems obviously to refer to making turns, either to the right or to the left, usually onto other roads, driveways, or the like. "Changing lanes" appears similarly clear, referring to the movement of a vehicle from one lane to another lane, either to the right or to the left. The words "move right or left upon a roadway" must also be interpreted by their plain meaning, and, in context, the phrase must refer to movement of a vehicle upon a roadway that is not a turn and is not a lane change, but is otherwise a movement to the right or to the left. A vehicle merging into the flow of traffic onto a roadway fits this definition. A merge requires by its very nature a movement to the left, as in the case at bar, or to the right, in order to accomplish the task of merging. It is not readily apparent to the court what other movements may qualify as "mov[ing] right or left upon a roadway," but merging clearly meets the definition.
In this case there is no question the defendant was merging onto 1-70 when he failed to signal Seeing this, Officer Salas had a sufficient basis for pulling over defendant and his vehicle for a violation of Utah's traffic laws.
Defendant's argument that section 41-6-69 does not require a signal when merging is inconsistent with the plain meaning of the statute and finds no support in the law. Defendant's position effectively eliminates the statute's requirement for a signal when a motorist moves right or left on a roadway without turning or changing lanes, Merging is not a lane change in the strict sense because of the very nature of a merge. The two lanes become one. To consider a merge to be a lane change would appear to be more appropriate and plausible if it were not for the inclusion of the "move right or left" language of the statute. This latter reference appears to the Court to more specifically address a merge than does a lane change. Reading the two clauses together makes it clear to the Court that the Utah legislature intended to require a signal by a motorist entering an interstate, or any other public roadway via a merge lane. And a merge is obviously not a turn. It fits precisely, however, within the meaning of a movement to the right or to the left upon a roadway. One cannot merge onto a roadway without moving to the left or to the right.
If a merge were considered to be a lane change, a signal is clearly required under section 41-6-69(1).
Defendant's reference to section 41-6-75.5, a Utah traffic code section dealing with merging traffic, does nothing to alter the fact that section 41-6-69(1) requires a signal upon merging onto a freeway. Section 41-6-75.5 states:
The operator of a vehicle traveling in a lane that is about to merge into another lane shall yield the right-of-way to all vehicles traveling in the lane or lanes into which the lane of the operator is merging and which are so close as to be an immediate hazard. This section does not apply to entry lanes to limited access highways.
This statute deals solely with the issue of which motorist has the right-of-way in a merging situation. It clearly requires the operator of the merging vehicle to yield the right-of-way to the vehicles already in the lane into which the operator is merging, and nothing more. It does not address the issue of signaling in any manner. Nor must it, in light of the language of section 41-6-69(1) which deals specifically with signaling. There is nothing inconsistent between these two statutes.
Pursuant to U.S. v. Botero-Ospina, the officer had a reasonable belief that defendant violated a traffic law when he observed defendant merge or move to the left without signaling onto Interstate 70, Botero-Ospina, 71 F.3d at 783. Accordingly, the stop was justified from its inception and the initial detention was reasonable under the Fourth Amendment to the Constitution of the United States.
In supplemental briefing, defendant argues that Utah Code § 41-6-69 is unconstitutionally vague and therefore the traffic stop violated defendant's right to due process and was unreasonable under the Fourth Amendment. Defendant cites no authority for this argument beyond the general proposition found in United States v. Harris, 374 U.S. 612 (1954) that a statute is violative of the due process clause if it is sufficiently vague. Defendant's position is unavailing to require suppression of the fruits of the search in this case. First, as explained above, section 41-6-69 is not unconstitutionally vague. It sufficiently states that a signal is required when a vehicle is entering a public roadway via a merging lane. Furthermore, even if the section were deemed to be unconstitutionally vague, it does not follow that such a finding would render the Trooper's actions violative of defendant's Fourth Amendment rights sufficient to require the suppression of all evidence obtained as a result of the search. To the contrary, as explained by the Tenth Circuit Court of Appeals in United States v. Vanness, 342 F.3d 1093 (10th Cir. 2003), evidence seized by police officers during a search conducted on the officers' objectively reasonable reliance on a statute is not inadmissible even if the statute is later held to be unconstitutional. Id. at 1097 (citing Illinois v. Krull, 480 U.S. 340 (1987), and applying the good faith exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897(1984)).
B. Consent
Defendant argues that even if the stop and initial detention were valid, the search of the vehicle and associated detention was not because defendant did not consent, or if he did he did not do so voluntarily, or if he did so voluntarily, that the search went beyond the scope of the consent. Therefore, defendant argues, the search violated the Fourth Amendment. The United States argues the initial valid stop and detention subsequently became a consensual encounter based on the explicit consent of the defendant both as to questioning and the search of his vehicle, and the defendant's voluntary cooperation in answering the officer's non-coercive questions. The United States asserts that the search was within the scope of the defendant's voluntary consent. Finally, the United States further argues that the officer had reasonable, articulable suspicion of criminal activity to justify the questioning of defendant.
The argument by the United States that the officer had reasonable, articulable suspicion of other illegal activity as a basis for extending the detention of defendant beyond the initial purpose of the stop, although well-taken given the facts, will not be further addressed because, as discussed below, the Court finds that the defendant consented to additional questions beyond the initial detention and that he also twice gave his consent to the search of his vehicle.
1. Voluntary expansion of the initial detention
An officer conducting a traffic stop in this Circuit may detain a person for the purpose of obtaining a drivers license and vehicle registration, confirming the validity of those items through computer and dispatch checks, confirming the validity of the person's use of the vehicle, issuing a citation, and during the course of doing so, may inquire as to a person's travel plans. See, e.g., United States v. Martinez, 983 F.2d 968, 974 (10th Cir. 1992) (citation omitted); United States v. Jones, 44 F.3d 860, 872 (10th Cir. 1995) (citation omitted); United States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir. 1996).
In the instant case, the officer asked defendant for his license and registration. As he did so, from the passenger side of the vehicle, he observed defendant had made a sleeping area in the rear of the vehicle with a sleeping bag spread out and noticed a strong air freshener odor. While he was waiting for the defendant to produce the license and registration he asked defendant about his travels and what scent the air freshener was. Defendant offered that he had been to Las Vegas to visit his ill grandfather, but in the same sentence changed the reason for the trip to that of visiting a friend and gambling. The defendant also volunteered other information not related to his travel plans. The officer then returned to his patrol car and determined that the license and registration were valid and that defendant owned the vehicle. He then re-approached the vehicle at the passenger window and returned the license and registration, handed the defendant a warning citation and explicitly explained that defendant had no further obligation, that he did not have to contact a court or pay a fine. He did not ask the defendant any further questions.
"A consensual encounter is the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement officer. If the individual is free to leave . . . he or she is not seized under the Fourth Amendment." Hernandez, 93 F.3d at 1498. The consensual nature of an encounter beyond the initial detention related to the traffic stop depends on whether the individual, based on the officer's conduct, has an objective reason to believe he is not free to leave. Florida v. Bostwick, 501 U.S. 429, 439 (1991). Given the officer's conduct as described above and the defendant's own actions, the Court finds that defendant had no objective reason to believe he was not free to go after the officer returned his license and registration, explained the warning citation and asked no further questions.
However, instead of leaving the defendant engaged the officer in further conversation, insisting that he was sure he had signaled and asked the officer if it was possible he had not seen the signal The defendant then engaged the signal and voluntarily exited the vehicle to verify that the signal light at the rear of the vehicle was operational. He then got back into his vehicle. Only at this point did the officer ask if he could ask additional questions to which the defendant agreed. The Court finds that defendant clearly gave voluntary consent to additional questions and the expanded detention that resulted. Moreover, the Court finds that the facts in evidence overwhelmingly show that at this point the encounter was a voluntary and consensual encounter. The officer then asked further detailed questions about defendant's travels. The defendant's answers resulted in a story that was full of discrepancies. For example, the defendant, having traveled from Ohio to Las Vegas to visit and gamble with a friend did not know the friend's last name and was not sure if his first name of "Spank" was his given name or not. The story was not credible. The questioning that produced this story was consented to by the defendant and was not coercive. No lawful detention occurred.
Defendant notes the testimony by the officer that he did not specifically tell defendant he was free to go after returning the license and registration and that at various times during the stop the officer leaned on the window track of defendant's vehicle. The Court finds that these facts, in light of all the other facts discussed above, do not constitute coercive questioning nor do they serve to provide the defendant a reasonable basis to believe he was not free to go on his way.
2. The voluntary consent to search the vehicle
To determine if voluntary consent to search is given a court considers the totality of the circumstances surrounding the consent. See, e.g., United States v. Price, 925 F.2d 1268 (10th Cir. 1991). In order to establish voluntary consent, the government must show, in the totality of the circumstances surrounding the search, that the consent was unequivocal, specific, freely and intelligently given, and that the consent was not given under duress or coercion. See, e.g., United States v. Orrego-Fernandez, 78 F3.d 1497 (10th Cir. 1996).
Based on the answers the officer received to the questions discussed above, he asked defendant if he had anything illegal in his vehicle. The defendant not only responded that he did not, but he also invited the officer to search the vehicle. This invitation alone constituted sufficient consent by defendant to a search of the vehicle by the officer. It was explicitly, voluntarily and freely given without confusion. Moreover, the defendant was not under duress at the time it was given, nor did the officer do anything to coerce such an invitation.
Instead of immediately searching the vehicle, after receiving defendant's invitation to do so, the officer asked defendant if he had any weapons, alcohol or drugs. The defendant said he did not. Then the officer expressly asked defendant for this consent to search his vehicle. The defendant agreed demonstrating his willingness to allow a search for the second time within a one to two minute time span. The evidence presented by the United States clearly shows that defendant's consent was also voluntary. It was given in broad daylight in a public area. The officer did not use a harsh voice, threatening language or make threatening movements. The defendant was not in handcuffs. The officer had not drawn his weapon or forcibly removed defendant from his vehicle. Finally, given the defendant's sua sponte invitation to search the vehicle and then the officer's clear request to search the vehicle — there is no reasonable basis from which one could conclude that defendant did not understand that he was, in fact, consenting to a search of his vehicle for drugs. Under the totality of the circumstances the defendant's consent to search his vehicle was given voluntarily, freely and intelligently in the absence of duress and coercion. Accordingly, the Court finds that the requirements demanded by the Fourth Amendment with regard to voluntary consent to search are met in this case.
3. Scope of the search
As the United States argues, the " Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect's consent permitted him to [conduct the search that was undertaken]". United States v. Garcia, 56 F.3d 418, 423 (2nd Cir. 1995) ( quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). (Govt. Mem. In Opp. at 14). To determine whether the scope of a consent to search is limited the Court must consider how an objectively reasonable person would understand the exchange between the officer and the person giving the consent. United States v. Sanchez, 89 F.3d 715, 719 (10th Cir. 1996), The Tenth Circuit Court of Appeals has also stated, "Consent to search a car means to search the entire car and whatever is in it, unless such consent is otherwise restricted" See United States v. Wacker, 12 F.3d 1453, 1470 (10th Cir. 1995) ( citing inter alia United States v. Deases, 918 F.2d 118, 122 (10th Cir. 1990).
In the instant case, it is clear from the facts that when the defendant consented to let the officer search the vehicle he understood the officer was interested in illegal contraband such as weapons, alcohol and drugs. The Court finds that a reasonable person would objectively believe that a law enforcement officer looking for such contraband would mean he wanted to search the entire vehicle when seeking consent to search, Moreover, the Court finds that a reasonable person would expect an officer in such a situation to search parts of a vehicle, such as under the floor, where such contraband could be concealed. The Court also finds that a reasonable person would expect an officer seeking consent to search a vehicle for such contraband might reasonably rely on his training to lead him to areas of the vehicle where a hidden compartment might exist to conceal such contraband. Therefore, the Court finds that, based on the exchange between the officer and the defendant, that it is objectively reasonable to conclude that the consent to search included the entire vehicle, and that the defendant consented to such a search.
Importantly, the evidence shows that during the search, the defendant never withdrew his consent, nor did he object to the extent of the search — despite having the opportunity to do so. During the search, on two occasions, the defendant and officer interacted. First, the officer, upon finding that a possible hidden compartment might exist underneath the vehicle told defendant the search may take longer. The defendant did not object. Second, the defendant approached the officer during the search and asked how much longer it would take, but did not limit its scope or ask that it stop and that he be allowed to go on his way. Therefore, the Court finds that defendant did not limit the scope of the consent to search the entire vehicle after the search commenced, nor did he withdraw his consent to the search. Accordingly, the scope of the search did not violate defendant's Fourth Amendment right against unreasonable searches.
CONCLUSION
For the reasons stated above, and those contained in the United States' briefs and specifically incorporated herein, the Court DENIES defendant's motion to suppress. IT IS SO ORDERED.