Opinion
Criminal No. 02-85-P-H
November 1, 2002
Nicholas J.K. Mahoney, Esq., Thompson, Bull, Furey, Bass Maccoll, LLC, P.A., Portland, ME, for Defendant.
Jonathan R. Chapman, Office Of The U.S. Attorney, Portland, ME, for Plaintiff.
RECOMMENDED DECISION ON MOTIONS TO SUPPRESS
Lawrence E. Maldonado, charged with possession with intent to distribute 50 kilograms or more of marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1), Indictment (Docket No. 5), seeks to suppress statements made to Maine State Trooper Robert Nichols on August 8, 2002 and the fruits of allegedly illegal searches of the cab and trailer of the moving van he was driving that day when it was stopped on the Maine Turnpike in Wells, Maine, Motion to Suppress, etc. ("Statement Motion") (Docket No. 8) at 1; Motion to Suppress ("Physical Evidence Motion") (Docket No. 9) at 1.
At the hearing held on these motions, counsel for the defendant clarified the written motions, indicating that the Statement Motion applies to statements made by the defendant to Trooper Nichols and not to statements made to Trooper Robert Flint before Trooper Nichols arrived on the scene and that the Physical Evidence Motion applies to items found in the cab and trailer of the moving van that the defendant was driving immediately before the traffic stop that gave rise to the pending charge against the defendant.
An evidentiary hearing was held before me on October 29, 2002 at which the defendant appeared and was represented by counsel. The government called two witnesses and introduced 14 exhibits, which were admitted without objection. I heard oral argument after both parties rested. Based on the evidence adduced at the hearing, I recommend that the following findings of fact be adopted and that both motions to suppress be denied.
I. Proposed Findings of Fact
While on patrol on the northbound side of the Maine Turnpike in Wells, Maine at approximately 3 p.m. on August 8, 2002, Maine State Trooper Robert Flint, Jr. noticed an orange Allied Van Lines truck approaching in the passing lane. He visually estimated the speed of the truck at 65 miles per hour. Flint was parked at the side of the road in a construction zone in which the posted speed limit was 50 miles per hour. His radar, which was operating properly, initially recorded the speed of the truck at 66 miles per hour, slowing to 63 miles per hour when it passed Flint's cruiser. Flint activated the lights on his cruiser and pulled the truck over for the speeding violation. The truck stopped in a closed area of new pavement to the right of the northbound lane.
Flint shut off his blue lights and walked up to the cab of the truck to talk to the driver. He noticed that the driver was not wearing a seat belt, a violation of federal and Maine law. The driver was the defendant. Flint asked the defendant to open the door to the cab, determined that there was no one else in the vehicle with the defendant and asked him for his driver's license and the medical certificate required for all commercial interstate drivers and the truck's registration. The defendant produced a medical certificate, a New Mexico driver's license and a Texas registration for the truck. While looking for these documents, the defendant said that he had not been paying attention and that he was heading to Portland, Maine with household goods from Alabama. The defendant was not wearing glasses. Flint noticed that the license and the medical certificate required the defendant to wear corrective lenses. He asked the defendant if he was wearing contact lenses. The defendant said that he was not and that he had left his broken glasses in a motel in Connecticut. He also told Flint during this conversation that he had been driving for five years and had been working for the company whose name was on the truck for only a short time.
Flint knew that a trip from Alabama to Maine would involve over 100 miles and that the driver would therefore be required to keep a log book, so he asked to see the defendant's log book. The defendant produced the log book (Government Exhibit 1) and said that it was behind, which Flint understood to mean that it was not current to the last change of duty status. The last entry in the log, marked by Flint with a circle and his initials, was for 11 a.m. on August 7, 2002, so Flint knew that the defendant was in violation of federal regulations that require a commercial truck driver to keep a current log of his time on and off the road during a trip of more than 100 miles. This violation is an arrestable misdemeanor under state and federal law. After marking the entry for August 7, Flint returned the log book to the defendant and asked him to bring it up to date. The defendant did so, showing off-duty and sleep time on the New Jersey Turnpike from 6:30 p.m. on August 7 to 6:30 a.m. on August 8 followed by uninterrupted driving time from 7 a.m. on August 8 until the truck was stopped by Flint. The portion of the log completed before Flint's stop shows sleep time from midnight to 8 a.m. on August 7 in Ashville, North Carolina, with uninterrupted driving time thereafter until the 6:30 p.m. stop on the New Jersey Turnpike.
Flint told the defendant to stay in the truck. He compared the truck's license plates to the registration form and went back to his cruiser, where he requested by radio a check on the defendant's license and called for the truck weight trooper on duty, whom he knew would most likely be Trooper Robert Nichols. Certain Maine state troopers specialize in enforcing commercial trucking regulations. Nichols is one of these troopers and carried the proper forms to be filled out for the defendant's violations. Flint was informed by radio that the defendant's license was under suspension. Driving a commercial vehicle with a suspended license is also an arrestable offense under state and federal law. As a result of this information, Flint seized the defendant's driver's license. At this point, Flint knew that the truck would have to be towed because the defendant could not be allowed to drive it further with a suspended license and no other driver was available. He checked with Nichols by radio and Nichols told him to call a tow truck, which he did. Nichols, who came from Portsmouth, New Hampshire, in his truck in response to the call, arrived at the scene at approximately 4:17 p.m. During the time between Flint's call for him and Nichols' arrival, Flint did not speak to the defendant. Flint knew that he would be turning the case over to Nichols and did not arrest the defendant, nor did he decide to do so.
The Maine Motor Carrier Safety Rules incorporate the federal commercial trucking regulations. Government Exh. 14.
Nichols is assigned to commercial vehicle enforcement with Troop K of the Maine State Police. He is trained to enforce state and federal commercial trucking regulations and is an agent of the federal motor safety agency as well as a state trooper. The commercial trucking industry is heaving regulated and drivers and owners of commercial trucking businesses know that such agents have the power to make random stops and inspections of commercial trucks. Nichols conducts warrantless inspections of commercial trucks to determine that their loads are properly secured, that safety equipment is operating correctly and that hazardous materials are properly marked, among other duties. He also monitors driver compliance with regulatory requirements, which can only be successfully accomplished through random stops.
After Nichols arrived and Flint had informed him about what he knew about the defendant and the truck, the troopers walked over to the truck. The defendant told Nichols that his trip originated in Mesa. Nichols asked the defendant for the truck's operating authority, a document giving the trucking company authority to operate in Maine; the defendant did not have it. Nichols asked the defendant for his fuel and toll receipts. In his experience, commercial truck drivers have "a pile" of such receipts accumulated during a trip. The defendant had no fuel receipts and only three toll receipts, from Massachusetts, New Hampshire and Maine. For a trip from Dallas, Texas through Knoxville, Tennessee, through North Carolina and New Jersey into Maine, as recorded in the defendant's log book, Nichols would expect to see toll receipts at least from New Jersey and New York. It might have been possible for the truck to get through those states without paying a toll, but it would have required a very indirect route of travel.
Nichols also asked the defendant for his shipping papers. In his experience, commercial trucks moving household goods carry papers that show essentially an inventory of the goods in the load. The defendant had no such papers with him but said that he had left them in his motel room "right here in Connecticut." When discussing the location of these papers, the defendant appeared nervous and to be searching for an answer to Nichols' question. He did not know in what city in Connecticut the motel was located. He said that a friend had the key to the motel room. He told Nichols that he was going to Portland where he might pick up more cargo. Nichols found it unusual that the defendant did not have fuel receipts, operating authority documentation or a bill of lading; that he had so few toll receipts; and that the defendant was planning to possibly add to his load in Portland. It was also unusual for a moving van to have a single driver; most have two or more individuals on a trip, to help with loading and unloading.
Nichols then told the defendant to step out of the truck cab. He searched the truck cab because the truck was going to be towed; he was looking for contraband and valuables. He found no luggage and no clothing. In the sleeper portion of the cab he found a machete under the mattress. While Nichols was searching the cab, Flint explained to the defendant the summonses that he had prepared; the defendant signed them. Flint then received, at approximately 4:31 p.m., a call from the state police barracks directing him to look for a northbound vehicle in which the occupants had been seen drinking beer. Flint went to his cruiser and was beginning to drive away when Nichols waved to him to return.
Nichols then showed Flint the truck's registration (Government Exh. 13) and the two troopers agreed that the expiration date appeared to have been altered on that document. Flint suggested that the K-9 drug search unit be called and Nichols agreed. Flint knew that Trooper Teachout and his dog were in the area and called the barracks around 4:35 p.m. to have them come to the scene. Flint suggested calling Teachout because the truck was coming from an area known for traffic in drugs and illegal aliens, the truck and driver had a high number of violations and the defendant didn't appear to be a professional truck driver under the circumstances. The vehicle about which Flint had been called then went by and he pursued it in his cruiser, making a stop and processing that violation for about 45 minutes, after which he returned to the defendant's truck.
In the meantime, Nichols called the barracks and asked to have the truck's license plate run; he was informed that the truck's registration was expired and invalid. Nichols had agreed that Teachout should be called due to the totality of the circumstances. In addition, the defendant had said to him four or five times "They load it, I just drive it," which seemed unusual to him because the driver of a moving van usually participates in loading the van and drivers generally know what is in their trucks. At this time, Nichols intended to issue summonses to the defendant and let him go with the wrecker driver. At some point, the defendant was told that he could leave with the wrecker when the truck was towed. Neither trooper ever told the defendant that he was free to leave or that he was not free to leave.
When Nichols finished his paperwork he told the defendant that a K-9 unit had been called and asked him if there was anything in the truck that the dog might find. The defendant said that there was not. Nichols asked the defendant to unlock the trailer so that it would be ready when the dog arrived "and we can all get out of here." The defendant opened the storage compartments in the truck that were not locked and asked Nichols if Nichols had the keys to the padlocked compartments. Nichols did not have those keys. The defendant retrieved keys from the cab, with which he was unable to open the padlocks. He then found another key which also would not open the padlocks. The defendant then asked Nichols if he had any bolt cutters, and the wrecker driver, who had arrived in the interim, offered his bolt cutters to the defendant.
By this time Teachout had arrived and was standing with Nichols and the defendant. The defendant offered the bolt cutters to Teachout; Nichols told the defendant to cut his own locks himself.
The defendant then cut a padlock, which Nichols removed from the latch. As he had been trained to do, Nichols directed the defendant to open the doors to the main area of the trailer. The defendant opened the doors. Immediately inside the doors Nichols saw a white couch upside down and boxes that had fallen over into a pile. He also saw a few "junk" appliances. At this point Nichols suspected that drugs were being transported in the truck and that the boxes and furniture were a "cover load," because it was a very low-value cargo. He had no doubt that these things were not being hauled to Portland from Mesa because they were of value to someone. Teachout put his dog into the trailer toward the rear, so Nichols went toward the front. Nichols needed to move the pile of boxes to get to the front of the trailer, where he saw boxes piled up next to a stepladder. He picked up one of the fallen boxes and found it empty. All of the boxes in the pile were sealed, marked with room destinations and the name "Baily" and empty. A black magic marker was on the floor of the trailer near the boxes. Government Exhibits 7-9 are photographs of the interior of the trailer.
Near the front of the trailer, Nichols kicked a box on the floor, expecting it to be empty as well, but it did not move. He flipped open the top of the box and saw two bales of what he believed to be drugs. He lifted up one bale to show to Teachout and then replaced it in the box. Teachout sent the dog to the box and it immediately started barking and nipping at the bale. Teachout indicated that this was a positive response for the presence of drugs. Nichols then became concerned about the defendant, who was standing in the door of the trailer and watching. He handcuffed the defendant, who said, "What's this all about?" He set the defendant down on the edge of the pavement. Four or five boxes on the floor of the trailer had similar contents. Government Exhibits 10-12 are photographs of these boxes. Nichols then called the barracks to notify the state and federal drug enforcement agencies, agents of which eventually arrived at the scene.
When Flint returned from stopping and processing the second vehicle, he saw the truck with the tow truck at its front and the defendant sitting on the pavement in handcuffs. Nichols and Teachout told him that a quantity of drugs had been found inside the truck and that the drug enforcement agencies had been called. Flint looked inside the trailer and took photographs of the exterior of the truck. Government Exhs. 2-5. The truck was towed to the Maine Turnpike Authority facility in South Portland. Officers then applied for a search warrant for the truck out of an abundance of caution. No more drugs were found in the truck. The stacked boxes were also empty, except for a few that contained clothes, papers and household items that looked like they had come out of a landfill. Flint transported the defendant to jail, where in response to Flint's questions as he filled out a fingerprint card the defendant said that he was unemployed.
II. Proposed Conclusions of Law A. Statements
The defendant contends that any statements he made to Nichols should be suppressed because Nichols did not inform him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), even though he had probable cause to arrest the defendant from the moment he first spoke to him; the defendant had been ordered to stay at the scene and told what to do; and his driver's license had been seized.
There is no evidence in the hearing record that the defendant was ever given his Miranda rights.
Miranda warnings must be given before a suspect is subjected to custodial interrogation. United States v. Trueber, 238 F.3d 79, 91 (1st Cir. 2001). The question presented here is whether the defendant was in custody when he was questioned by Nichols. Routine traffic stops are not custodial for purposes of Miranda. Berkemer v. McCarty, 468 U.S. 420, 440 (1984). In order to evaluate the reasonableness of an investigatory traffic stop, a court must first determine whether the officers' actions were justified at their inception and if so whether the actions undertaken by the officers following the stop "were reasonably responsive to the circumstances justifying the stop in the first place as augmented by the information gleaned by the officer[s] during the stop." United States v. Owens, 167 F.3d 739, 748 (1st Cir. 1999) (citation omitted). Here, the defendant does not challenge the justification for the initial stop of his truck.
With respect to the second consideration, the fact that the officers were entitled to arrest the defendant at any time before they did is not relevant, Trueber, 238 F.3d at 92, making the defendant's first argument — that Nichols had probable cause to arrest him before he asked any questions — unavailing. Similarly, the officers' subjective intent has no bearing on whether or when their conduct may have transformed an investigatory stop into a de facto arrest. Id. This is particularly true where, as here, the officers never told the defendant that they intended to arrest him. Stansbury v. California, 511 U.S. 318, 323 (1994). The target of an investigatory traffic stop must be advised of his Miranda rights if and when he is subjected to restraints comparable to those associated with a formal arrest. Berkemer, 468 U.S. at 440. In assessing whether there was a sufficient restraint on freedom of movement, a court must consider all of the circumstances surrounding the interrogation. Trueber, 238 F.3d at 93. The only relevant inquiry is "how a reasonable man in the suspect's shoes would have understood his situation," Stansbury, 511 U.S. at 324, an objective test.
Relevant factors include whether the suspect was questioned in familiar or at least neutral surroundings, the number of law enforcement officers present at the scene, the degree of physical restraint placed upon the suspect and the duration and character of the interrogation. Trueber, 238 F.3d at 93. Here, the defendant argues that he was questioned in unfamiliar surroundings, at the side of the Maine Turnpike, but he was questioned by Nichols while sitting in the cab of his truck, a presumptively familiar place and a place in which he was present by choice. The surroundings cannot be described as anything less than neutral. United States v. Jones, 187 F.3d 210, 218 (1st Cir. 1999) (public highway is neutral setting). During all of Nichols' questioning of the defendant, no more than two law enforcement officers were present. The duration of the actual questioning was brief and its character neither threatening, unusual in the context of the traffic stop, nor intimidating. It is important to note in this regard that while approximately two hours passed between the initial stop and the defendant's arrest, the duration of the questioning, which the testimony establishes took place primarily shortly after Nichols arrived on the scene and again briefly just before the arrival of Teachout and his dog, was itself quite short. The defendant was at times directed to stay in the cab of his truck, but the officers testified that this was primarily a safety concern, as pedestrians are not allowed on the Maine Turnpike. See United States v. Streifel, 781 F.2d 953, 959 (1st Cir. 1986) (telling suspect he could not leave until another officer returned does not elevate traffic stop into custodial situation for purposes of Miranda). He was directed to get out of the cab at times, but these directions were also reasonable in light of the circumstances of the officers' investigation. See Jones, 187 F.3d at 218 (asking suspect to step out of car after traffic stop does not constitute physical restraint); Streifel, 781 F.2d at 959 (request to step out of car after traffic stop is minor intrusion on suspect outweighed by government's interest in officer's safety). Significantly, the defendant was never told that he could not leave the scene and indeed was told that, as an acceptable means of getting off the turnpike without becoming a pedestrian, he was going with the wrecker driver when the truck was towed. The fact that the defendant's driver's license was seized has no bearing on the question whether a reasonable person in his position would have understood that he was not free to leave. The license was suspended, as the defendant must be presumed to have known, and he could not legally drive. See 29-A M.R.S.A. § 2415. Nichols certainly was not required to restore the suspended license to the defendant before questioning him in order to avoid placing the defendant in de facto custody. The defendant's ability to leave the scene was limited by his own choice to drive alone on a restricted-access highway with a suspended license, not by any action of Flint or Nichols prior to his arrest.
Contrary to the defendant's argument, police officers are not required to inform a suspect that he is free to leave in order to render any subsequent questioning non-custodial. United States v. Robinette, 519 U.S. 33, 39-40 (1996).
Finally, while the two hours spent at the roadside was a lengthy period of time and somewhat beyond those found acceptable in reported case law dealing with traffic stops, there is no suggestion in the evidence before the court that the officers acted other than with diligence in pursuing the investigation prompted by the numerous violations apparent shortly after Flint had stopped the truck. The summoning of Nichols and later of Teachout was reasonable given the information known to Flint and Nichols. Neither officer could have escorted the defendant safely off the turnpike while waiting for the other officers to arrive without leaving the truck unattended for some period of time. Under the circumstances, this passage of time, standing alone, did not mean that the defendant was in de facto custody, particularly when most of his statements were made to Nichols well before the end of this period. See United States v. Sharpe, 470 U.S. 675, 685 (1985) (while it is clear that brevity of invasion of suspect's Fourth Amendment interests is important factor, Supreme Court has emphasized need to consider law enforcement purposes to be served by stop as well as time reasonably needed to effectuate those purposes).
The motion to suppress the defendant's statements to Trooper Nichols should be denied.
B. The Physical Evidence
The defendant seeks the suppression of all physical evidence found in the truck cab and trailer.
At the hearing, his counsel first argued that neither search was consensual, but the government does not make that argument. It contends that the searches were lawful under New York v. Burger, 482 U.S. 691 (1987), because the trucking industry is pervasively regulated and random, warrantless searches are justified in the circumstances presented here and, in the alternative, that probable cause existed for each search making a warrant unnecessary under the vehicle exception to the usual requirement of a warrant. It is not necessary to reach the government's alternative argument.
In Burger, the Supreme Court upheld the warrantless search of an automobile junkyard conducted pursuant to a statute authorizing such a search and rejected a constitutional challenge to the statute based on the argument that the ultimate purpose of the statute is the same as that of the penal laws, so that the inspection may disclose violations not only of the regulatory statute but also of one or more penal statutes. 482 U.S. at 693, 716-18. The Court held that the operator of a closely regulated business has a reduced expectation of privacy that allows reasonable warrantless searches. Id. at 707-08. It articulated three criteria necessary to make warrantless searches pursuant to business regulation statutes reasonable: (i) the state must have a substantial interest in regulating the business, (ii) regulation of the business must reasonably serve the state's substantial interest (i.e., warrantless administrative inspections must be necessary to further the regulatory scheme) and (iii) the statutory scheme must provide a constitutionally adequate substitute for a warrant by informing the operator of the business that random inspections will be made. Id. at 708-11.
This analysis has been applied to the commercial trucking industry. E.g., United States v. Fort, 248 F.3d 475, 478-80 (5th Cir. 2001) and cases cited therein (from the 6th, 9th and 10th Circuits); see also Lievesley v. Commissioner of Internal Revenue, 985 F. Supp. 206, 210 (D.Mass. 1997). Under 29-A M.R.S.A. § 555(2), the Maine State Police "may adopt rules to incorporate by reference regulations in 49 Code of Federal Regulations, Parts 40, 382, 390, 391, 392, 393, 395 and 396 . . ." It is a Class E crime to violate any rule so adopted. 29-A M.R.S.A. § 558(1). Part 390 of Title 49 of the Code of Federal Regulations contains the federal motor carrier safety regulations. Part 395 governs hours of service for drivers; section 395.8 requires drivers to keep a current record of duty status (the log book). Part 396 governs inspection of motor carriers. Every motor carrier and its drivers are required to "be conversant with" the rules of part 396. 49 C.F.R. § 396.1. Every special agent, like Nichols, is authorized to enter and perform inspections of a motor carrier's vehicles in operation. 49 C.F.R. § 396.9(a). The Maine State Police have adopted these regulations pursuant to their statutory authority. Government Exh. 14.
The Fifth Circuit concluded in Fort that the three criteria established in Burger were met by the Texas commercial vehicle regulatory statutes. 248 F.3d at 479-83. The Texas code provided that an officer could enter a motor vehicle subject to the statute while it was on the highway in order to inspect it. Id. at 478-79. While the issue in that case was whether the statute allowed an officer to stop the vehicle without probable cause, an issue not present in the instant case, the court's analysis is nonetheless applicable to the Maine regulations and the search which occurred in this case. Like the state of Texas, id. at 480, the state of Maine has a substantial interest in traveler safety and in reducing taxpayer costs that stem from personal injuries and property damage caused by commercial motor carriers. Warrantless inspects are necessary to further the regulatory scheme because violations of the regulations may not be apparent to officers on patrol. Id. at 481. Finally, the federal regulations, and through their incorporation, the state regulations, provide adequate notice to commercial carriers that their vehicles may be searched and seized on the highways. Id. at 482.
Counsel for the defendant argued at the hearing that the second prong of the Burger test is not met in this case because it was the officers' intent to search for drugs and that the search was therefore not in furtherance of the statutory safety scheme. However, the question under that prong is not whether the subjective intent of the officers conducting the particular search in question was to further the statutory scheme but rather whether warrantless searches in general further that scheme. An unexceptionable search under Burger cannot become unconstitutional whenever the searching officer suspects that drugs might be in the commercial vehicle being searched. Contrary to counsel's argument at the hearing, the decision in Whren v. United States, 517 U.S. 806 (1996), does not suggest otherwise. In that case, the Supreme Court reiterated its previous holding that an otherwise valid warrantless investigatory stop or search is not rendered invalid by the actual motivations of the officers involved. 517 U.S. at 812-13.
Even if this were a correct formulation of the legal standard, there is no evidence that Nichols had any intent to search for drugs when he searched the cab of the truck. Nichols testified that the search of the cab was "incident to the tow." With respect to this aspect of the search, the defendant has also asserted a privacy interest in the cab because he kept his personal effects in it and slept in it; he characterizes the cab as his "home away from home." Physical Evidence Motion at 4. This argument is inconsistent with the testimony of the troopers that the defendant told them he had left his broken glasses and much of the documentation for his trip in his motel room in Connecticut and the fact that no clothing or luggage was found in the cab. The case law cited by the defendant in support of this argument is inapposite in any event; none of it arises from circumstances involving a commercial truck. Case law involving private personal travel in an automobile or a train are not analogous to driving a commercial vehicle in a heavily regulated industry. That case law cannot override Burger with respect to the cab area of commercial trucks.
Because Nichols had clear authority to conduct a warrantless search of the trailer, the fruits of that search need not be suppressed. The defendant's motion should be denied.
III. Conclusion
For the foregoing reasons, I recommend that the defendant's motions to suppress evidence be DENIED.