Opinion
NO. 2:10-cr-00009 FCD.
March 17, 2011
MEMORANDUM AND ORDER
Defendants Antonio Guerrero ("Guerrero") and Francisco Garin ("Garin") (collectively, "defendants") are charged in the indictment with possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and criminal forfeiture. This matter is before the court on defendants' (1) motion to suppress evidence seized by law enforcement officers during the search of a car on December 15, 2009 in violation of the Fourth Amendment; and (2) motion to suppress any statements made by defendants after the traffic stop in violation of the Fifth Amendment privilege against self-incrimination. The United States of America (the "government") opposes the motions. The court held an evidentiary hearing on December 3, 2010 and February 25, 2011. Having reviewed the file herein and heard the testimony of witnesses and arguments of counsel, the court DENIES defendants' motions to suppress.
Defendants withdrew their Motion to Suppress statements made by defendants at CHP headquarters.
BACKGROUND
The facts are taken from the testimony and evidence received at the evidentiary hearing held on December 3, 2010 and February 25, 2011. The court finds Officer Mertz to be credible. To the extent that Mertz's testimony conflicts with that of defendants, the court accepts Mertz's version of the facts.
On December 15, 2011, Officer Douglas Mertz ("Mertz"), an officer for the California Highway Patrol ("CHP") assigned to the Criminal Apprehension Program as a K-9 handler, was monitoring traffic on Interstate 5 after a rainstorm. At approximately 11:30 a.m., he and his partner, Officer Todd Newman ("Newman") were sitting in their respective patrol cars in the center divide area of the highway just north of the Glenn County line. Mertz was facing southbound and monitoring traffic traveling northbound.
The speed limit on that stretch of highway was 70 miles per hour. There was a break in traffic, and Mertz observed a vehicle traveling northbound in the number two lane at an estimated speed of 75 miles per hour. Mertz then activated his front radar antenna and captured the speed of the vehicle at 77 miles per hour. As the car slowed down and passed, Mertz noticed that the front driver and rear back windows were tinted. He also noticed that there was some type of object hanging from the rearview mirror.
Mertz testified that, pursuant to department policy, he tested the radar unit at the beginning and end of his shift and that it was functioning properly at both times.
Mertz made a U-turn and caught up to the vehicle. He then pulled his patrol vehicle behind the car, activated the front emergency lights, and conducted an enforcement stop. Mertz testified that the primary purpose of the stop was for the speeding violation; however, he also had suspicions that the tint on the windows and the item hanging from the rearview mirror might be illegal. The vehicle yielded to the right shoulder and stopped. Mertz pulled his patrol car behind the vehicle.
Mertz testified that once he approached the car after the stop, he saw that the object hanging from the rearview mirror was a small necklace-type object that wasn't attached to the windshield and, as such, was not a violation.
Mertz exited his patrol car and approached the vehicle on the right side; he made contact with the two occupants through the right open window. He explained that the reason for the stop was the tinted windows and the speeding violation. He then asked the driver, Guerrero, for his licence and the vehicle registration. Mertz noted that the registered owner was different than the name on the driver's license. He also noted that the address and the city on the license was different than the address and the city on the registration.
Mertz asked the driver to exit the vehicle so he could ask him questions regarding the discrepancies between the information on the driver's license and on the vehicle registration. Guerrero exited the vehicle and stood near the right front of Mertz's patrol car. Mertz asked Guerrero who the owner of the vehicle was. Guerrero told him that he didn't know who the owner was and that the owner was a friend of the passenger.
Mertz testified that he asked him to exit the vehicle, in part, for office safety concerns. Specifically, he asks drivers to step out of a vehicle during a traffic stop on a regular basis in order to separate them from any weapons that may be in the vehicle and to eliminate the possibility of speeding away from the scene.
Mertz then reapproached the vehicle and asked the passenger, Garin, who the owner of the vehicle was. Garin told him that he didn't know who the owner was and that the owner was a friend of the driver. Mertz then asked Garin where he was coming from, the purpose of this trip, and the duration of his trip. Garin responded that he and Guerrero had driven to Madera to look for work, were unable to find work, had stayed in Madera for two days, and were on their way home. Mertz spoke to both Guerrero and Garin in English; they responded in both Spanish and English.
Madera is a town in the Central Valley of California.
Mertz then reapproached Guerrero and asked him where he was coming from, the purpose of this trip, and the duration of his trip. Guerrero responded that he and Garin had driven to Madera to visit family, had stayed in Madera for eight days, and were on their way home. Mertz did not have any further conversations with either defendant; neither defendant made any further statements.
This exchange lasted approximately two or three minutes. Based upon the inconsistencies between the information on the driver's license and on the vehicle registration as well as the inconsistencies in the answer's given by Guerrero and Garin, Mertz suspected that one or both of the subjects were involved in some type of criminal activity. Mertz requested via radio that his partner, Newman, respond to the location of the traffic stop. He also contacted the CHP dispatch center and requested a registration check on the vehicle. It took Newman approximately two minutes to arrive at the scene, where Mertz briefed him about what had transpired since the traffic stop. Around the same time, Sergeant Greg Ross ("Ross"), who had been driving through the area and heard the dispatch on the radio, pulled behind Newman's car.
Mertz reapproached the vehicle and asked Garin to exit the vehicle. He then escorted both Garin and Guerrero to the rear portion of his patrol vehicle. Mertz testified that he escorted defendants to this location in preparation of getting his dog out of the car; he didn't want defendants standing right next to his dog for safety purposes. Newman stood next to defendants.
Mertz retrieved his dog on leash, walked to the vehicle, and began walking the dog around the vehicle in a counterclockwise direction from the right rear corner of the vehicle. As the dog reached the right rear wheel well, he showed a distinct change of behavior, which Mertz recognized as the sign of alert. As Mertz continued around the vehicle to the back trunk area, the dog again showed a distinct change of behavior in the left trunk seam area. Mertz then opened the passenger door of the vehicle, took his dog off the leash, and deployed the dog to the side of the vehicle. The dog jumped in the back seat and began to alert at the area where the seat reached the right quarter panel. Mertz advised both Newman and Ross what had occurred. Mertz also asked Newman to handcuff both defendants. This was approximately ten minutes after Mertz had effected the traffic stop of defendants.
Mertz's report erroneously indicates that his dog alerted at the left quarter panel.
Newman then retrieved his dog and deployed the dog to the exterior of the vehicle. The dog also alerted to the rear trunk area of the vehicle. Newman then opened the door of the vehicle and let the dog go inside. The dog went to the back seat and began to alert at the left quarter panel.
Mertz then conducted a hand-search of the vehicle, beginning in the rear right side by the right quarter panel. He used his hand to press in the panel, and felt metal behind the plastic panel. He then took an upholstery tool to pop out the plastic panel. Mertz then observed a trunk latch and a mechanism used to seal that compartment. He could also see numerous packages, each of which appeared to be wrapped in cling wrap. Mertz subsequently searched the left quarter panel and found a similar type of false compartment containing numerous packages of the same size and packaging type. Mertz later observed field tests of the packages, which tested screen positive for methamphetamine.
ANALYSIS
A. Motion to Suppress Evidence
The Fourth Amendment guarantees the right of citizens "to be secure in their persons, houses, papers, and effects, against unreasonable searched and seizures." U.S. Const. Amend. IV; see United States v. Ruckes, 586 F.3d 713, 716 (9th Cir. 2009). However, "the Fourth Amendment's proper function is to constrain, not against all intrusions . . . but against intrusions which are not justified in the circumstances, or which are made in an improper manner." Schmerber v. California, 384 U.S. 757, 768 (1966). "The `touchstone of the Fourth Amendment is reasonableness. The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.'" United States v. Willis, 431 F.3d 709, 714 (9th Cir. 2005) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)).
"Subject only to a few specifically established and welldelineated exceptions, a search is presumed to be unreasonable under the Fourth Amendment if it is not supported by probable cause and conducted pursuant to a valid search warrant."Ruckes, 586 F.3d at 716 (internal quotations and citations omitted). "When the [g]overnment does not meet the warrant requirement, it has the burden of proving that the departure from this requirement was justified." United States v. Gardner, 627 F.2d 906, 909 (9th Cir. 1980).
1. Traffic Stop
Defendants argue that all evidence seized and statements made by defendants by the side of the highway should be suppressed because there was insufficient probable cause or reasonable suspicion for the traffic enforcement stop of the vehicle. Specifically, defendants contend that Guerrero was not driving in excess of the speed limit and that Mertz pulled defendants over "solely on a pretextual basis" based upon their ethnicity and the out of state license plates on the vehicle.
The court notes that defendant Guerrero testified that he knew the vehicle was not exceeding the speed limit because he was checking the car's speedometer. However, both defendants also testified that they did not know whether the speedometer was accurate.
There is no evidence that Mertz could identify the race or ethnicity of defendants prior to the traffic stop. Accordingly, this contention is wholly unsupported.
The protections of the Fourth Amendment "extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." United States v. Arvizu, 534 U.S. 266, 273 (2002). The Fourth Amendment permits an officer to conduct a traffic stop "if there is reasonable suspicion to conclude that a traffic violation occurred." Willis, 431 F.3d at 714-15; see Whren v. United States, 517 U.S. 806 (1996) (holding that if officers have probable cause to believe that a traffic violation occurred, the officers may conduct a traffic stop even if the stop serves some other purpose).
In this case, the court finds that there was sufficient reasonable suspicion that a traffic violation had occurred to justify the traffic stop. Specifically, Officer Mertz testified that he visually observed defendants' vehicle traveling at a speed in excess of the 70 mile per hour speed limit under rainy conditions. He confirmed this observation with a reading from his stationary radar unit that the vehicle was traveling 77 miles per hour. Further, Officer Mertz also observed tinted windows and a small ornament hanging from the rearview window that, prior to the stop, he believed might have been violations. Because the court finds Officer Mertz's testimony credible, the court concludes that there was reasonable suspicion that a traffic violation occurred and thus, that there was a reasonable basis to conduct a traffic stop. Therefore, defendants' motion to suppress evidence on this basis is DENIED.
Defense counsel also vigorously cross-examined Mertz regarding the accuracy of his radar unit. Mertz testified that, in accordance with department policy, he tested the accuracy of the radar unit at both the beginning and end of his shift and that the unit was functioning normally. Defendants failed to raise any issue that the radar unit was inaccurate. However, under the facts of this case, even if defendants were able to demonstrate that the radar unit reading was in error, Mertz still had a reasonable suspicion that the vehicle was speeding at the time he stopped defendants.
The observation and confirmation of the vehicle's speed were, by themselves, sufficient probable cause to conduct a traffic stop. However, at the time of the stop, Mertz also had probable cause to believe that there may have been other traffic violations based on the tint of the windows and the ornament hanging from the rearview mirror. That those circumstances may have been subsequently determined not to constitute violations does not render Mertz's suspicion unreasonable.
2. Brief, Investigatory Stop
Defendants also argue that all evidence should be suppressed because defendants were held for an unreasonable length of time without a reasonable basis for an extended detention.
Under Terry v. Ohio and its progeny, the Fourth Amendment allows police to conduct a brief, investigatory search or seizure, so long as they have a reasonable, articulable suspicion that justifies their action. There is "no bright line rule for determining when an investigatory stop crosses the line and becomes an arrest." United States v. Parr, 843 F.2d 1228, 1231 (9th Cir. 1988). Rather, whether a police detention is an arrest or an investigatory stop is a fact-specific inquiry that requires the court to consider all the circumstances between the individual and the police. United States v. Torres-Sanchez, 83 F.3d 1123, 1127 (9th Cir. 1996). The court considers (1) the extent to which a person's liberty of movement is curtailed; and (2) the type of force or authority employed. Id.
There is no rigid time limitation on Terry stops. United States v. Sharpe, 470 U.S. 675, 685 (1985). Indeed, in order for the investigatory purposes of Terry to be served, the police must under certain circumstance be able to detain the individual for longer than the brief time period involved in Terry. Michigan v. Summers, 452 U.S. 692, 700 n. 12 (1981). In assessing whether the length of a stop exceeds the permissible time limitations for aTerry stop, the court considers whether the officers "diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the suspect." Torres-Sanchez, 83 F.3d at 1129.
The dispositive question is whether the methods used by the police were reasonable under the specific circumstances. Gallegos v. City of Los Angeles, 308 F.3d 987, 991 (9th Cir. 2002); Torres Sanchez, 83 F.3d at 1127 (holding that courts must determine whether the stop was "reasonably related in scope to the circumstances which justified the interference in the first place").
In this case, the court concludes that there was reasonable suspicion to conduct the brief detention of defendants before they were handcuffed. Once the vehicle was stopped and Officer Mertz asked for a drivers' license and registration, the discrepancies between the name and address on the license and the name and address on the registration came to light. When Officer Mertz inquired into the ownership of the vehicle, defendants Garin and Guerrero had inconsistent stories. Defendants also had inconsistent stories regarding the purpose and duration of their stay in Madera. Based upon his training and experience, the apparent attempts of both defendants to distance themselves from ownership of the vehicle as well as the inconsistencies relating to the purpose and duration of the trip made Mertz suspicious that one or both defendants were involved in some type of criminal activity. Accordingly, Mertz requested a registration check on the vehicle to ensure that it wasn't stolen. Accordingly, Officer Mertz had reasonable suspicion to briefly detain defendants.
There is no evidence that the manner of detention was unreasonable under the circumstances. There is no evidence that officer "used no threats of force, . . . exaggerated displays of authority or other coercive tactics." See Torres-Sanchez, 83 F.3d at 1129. Rather, the testimony of all witnesses at the evidentiary hearing was consistent that defendants willingly complied with Mertz's requests. Indeed, defendant Guerrero testified when Mertz asked him to get out of the car, he felt he could choose to remain in the car or get out. Mertz also testified that he subsequently asked both Garin and Guerrero to move behind his patrol car prior to conducting the exterior K9 search for safety reasons. Prior to the K-9's alert at the interior of the car, defendants were not placed in handcuffs or in the patrol car. Moreover, there is no evidence that Mertz ever physically touched defendants.
Further, the length of the investigatory stop was reasonable under the circumstances. Mertz testified that from the time he pulled over the car until the time defendants were handcuffed, approximately ten minutes had elapsed. The only stagnant time period was the approximately two minutes that elapsed when he was waiting for Newman to arrive as back-up; as such, there is no evidence that Mertz unnecessarily delayed the brief investigation. See Torres-Sanchez, 83 F.3d at 1129; cf. United States v. Motley, 344 Fed. Appx. 445 (9th Cir. 2009) (holding that a 30 minute delay between time officer completed independent investigation and time narcotics K-9 arrived violated the defendant's Fourth Amendment rights). Mertz also testified that the entire stop took approximately the same amount of time it would take to stop a car and issue a traffic citation. See Illinois v. Caballes, 543 U.S. 405, 405 (2005) (holding that the time it took to conduct an exterior dog sniff did not violate the defendant's Fourth Amendment rights when the duration of the stop was justified by the traffic offense and the ordinary inquiries incident to such a stop).
Accordingly, under the totality of the circumstances, the court concludes that Officer Mertz's conduct was a reasonable investigatory stop made in an attempt to dispel or confirm his suspicions of criminal activity; the brief detention never rose to the level of a de facto arrest. Therefore, defendants' motion to suppress evidence on this basis is DENIED.
3. Search of the Vehicle
Defendants also move to suppress evidence seized from the search of the car on the basis that there was insufficient probable cause to search the interior of the car.
Use of a well-trained narcotics detection dog to perform a "sniff" of the exterior of a car during a traffic stop does not implicate any legitimate Fourth Amendment privacy interests.Caballes, 543 U.S. at 409. If a drug detection dog alerts for the presence of illegal narcotics, that alert provides probable cause to conduct a warrantless search pursuant to the automobile exception to the warrant requirement. United States v. Garcia, 205 F.3d 1182, 1187 (9th Cir. 2000) (citing United States v. Ross, 456 U.S. 798, 807 (1982)).
Pursuant to the automobile exception to the warrant requirement, police officers who have stopped an automobile legitimately and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the vehicle. United States v. Garcia, 205 F.3d 1182, 1187 (9th Cir. 2000).
In this case, Mertz's K-9 alerted to the presence of narcotics during an exterior sniff of the vehicle; this provided sufficient probable cause for the interior search of the vehicle. Approximately six minutes after the traffic stop and after defendants gave inconsistent statements regarding ownership of the vehicle and the purpose and duration of their trip, Mertz deployed his dog to the exterior of the vehicle. The K-9 alerted to the exterior of the car by the right rear wheel well and in the left trunk seam area. This constituted sufficient probable cause to allow the search the interior of the vehicle by the K-9 and then by Mertz.
Defendants assert that Mertz conducted a search of the car by poking the interior of the car with a forked end of a metal rod prior to the use of his K-9. However, the credible evidence produced at the hearing does not support this version of the facts. Indeed, contrary to the representations made in defendants' moving papers, defendant Garin testified that Mertz went in the car after he walked the dog around the exterior.
Because the court finds Officer Mertz's testimony credible, the court concludes that the K-9 alert during the exterior sniff of the car provided probable cause to search the car. Therefore, defendants' motion to suppress evidence on this basis is DENIED.
B. Motion to Suppress Statements
"In Miranda v. Arizona, the Supreme Court held that statements that are not the product of interrogation not preceded by appropriate warnings are inadmissible, where the accused was questioned while `in custody or otherwise deprived of his freedom of action in a significant way.'" United States v. Beraun-Panez, 812 F.2d 578, 580 (9th Cir. 1987) (quoting Miranda, 384 U.S. at 444). In the Ninth Circuit, a person is "in custody" for purposes of Miranda "when, based upon a review of all pertinent facts, `a reasonable innocent person in such circumstances would conclude that after brief questioning he or she would not be free to leave.'" United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir. 1985) (quoting United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981)). This inquiry is measured by an objective standard.Beraun-Panez, 812 F.2d at 580. Moreover, the interpretation of "custody" under Miranda has been "narrowly circumscribed." United States v. Nieblas, 115 F.3d 703, 705 (9th Cir. 1997). "To determine whether an individual was in custody, a court must, after examining all of the circumstances surrounding the interrogation, decide `whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." United States v. Kim, 292 F.3d 969, 973 (9th Cir. 2002) (quoting Stansbury v. California, 511 U.S. 318, 322 (1994)).
Because, as set forth above, the court concludes that, under the totality of the circumstances, Officer Mertz's conduct was a brief, investigatory stop and not a de facto arrest, Miranda warnings were not necessary. See Torres-Sanchez, 83 F.3d at 1130 (noting that because the defendant was not under arrest, Miranda warnings were not necessary). While the evidence demonstrates that defendants were detained, there is insufficient evidence that they were in custody, such that their Miranda rights would be implicated.
Moreover, it is undisputed that after defendants were handcuffed, Mertz did not have a conversation with either defendant and neither defendant made any further statements until they arrived at CHP headquarters.
Therefore, defendants' motion to suppress statements made during the traffic stop is DENIED.
CONCLUSION
For the foregoing reasons, defendants' motions to suppress are DENIED. The matter is set for a further status conference on April 4, 2011 at 10:00 a.m. Time is excluded under T-4.
IT IS SO ORDERED.