Opinion
No. 8:04CR299.
December 23, 2004
MEMORANDUM AND ORDER
This matter is before the court on defendant's objections, Filing No. 19, to the report and recommendation ("RR") of the magistrate Judge, Filing No. 18. Defendant moved to suppress evidence seized after a traffic stop, contending that the evidence was obtained in violation of his Fourth Amendment rights. Filing No. 10. The magistrate judge recommended that the defendant's motion to suppress, be denied. RR at 7.
Pursuant to 28 U.S.C. § 636(b)(1)(A), the court has conducted a de novo determination of those portions of the RR to which the defendant objects. United States v. Lothridge, 324 F. 3d 599, 600-01 (8th Cir. 2003). The court has reviewed of the entire record including the transcript of the suppression hearing held on August 8, 2004 ("Tr."), Filing No. 15, and the videotape of the traffic stop at issue, Filing No. 13, Hearing Exhibit ("Ex.") 101. The court generally accepts the facts set out in the RR and they need not be repeated here, except to the extent necessary to this court's findings.
I. BACKGROUND
The evidence adduced at the suppression hearing shows that defendant Jamison Miller was stopped on Interstate 80 in Omaha on February 25, 2004, by Deputy Sheriff Matt Murphy of the Douglas County Sheriff's Office K-9 unit. Deputy Murphy testified that he stopped Miller because Miller had veered outside his lane and was also weaving within his lane. Tr. at 5-6, 29-30. The car was traveling at the speed limit. Id. at 15. Deputy Murphy testified that he recognized the lane travel as a violation of the rules of the road and as a sign of a possibly intoxicated driver. Id. at 5-6. He then activated the emergency lights and stopped Miller's vehicle. Id. at 6. Deputy Murphy asked Miller for identification and Miller presented a Kansas driver's license and a California vehicle registration issued to someone other than Miller. Id. at 6-7. Miller explained that the car had belonged to his recently deceased grandfather, who had left him the car and that he had traveled to California to pick it up. Id. at 7-8. Deputy Murphy testified that he had no reason to dispute that the vehicle had been owned by Miller's grandfather. Id. at 20. Deputy Murphy did not conduct any field sobriety tests or follow up on any concern that the driver might have been intoxicated. Id. at 15. He ran a nationwide computer database check on the driver's license and also reported the license plate number to dispatch. Id. at 10, 6. He found no negative references on Miller's driver's license, nor any reports that the car had been stolen. Id. at 10, 18-19.
Deputy Murphy testified that he thought it was unusual that Miller had a recentlyissued driver's license. Id. at 7. He also thought it was unusual that Miller had stayed in California for such a short time. Id. at 8. Deputy Murphy also testified that he observed only one key on Miller's key ring in the ignition. Id. at 9. Deputy Murphy had been trained to recognize that as an indication of narcotic trafficking, since drug dealers like to limit access to the trunk. Id. at 8-9. He testified, however, that he did not ask Miller anything about the key. Id. at 21.
Review of the videotape of the incident shows that there is no video recording the actions and events leading up to the traffic stop. The video opens with the car pulling over to the side of the road. There is no audio recording of the initial exchange between Deputy Murphy and the defendant. The audio transmission begins at the time that Deputy Murphy returned to his vehicle and ran the computer database check. Murphy can be heard telling another officer that defendant gave short answers and was not interested in talking. The videotape shows that after Deputy Murphy received the information that there were no negative references in the computer database, he approached the vehicle, returned Miller's drivers license to him, and asked for permission to search the car. Deputy Murphy candidly admitted that as part of his job, in addition to enforcing traffic violations, one of his responsibilities was to look for drugs and contraband, since Nebraska is a known pipeline for drugs. Miller declined consent and questioned the legality of a search. Deputy Murphy stated that it was legal and commented that he was trying to give defendant a way to get out of a ticket. Deputy Murphy further commented that he could legally impound the car to verify its ownership. At that point, Deputy Murphy asked the defendant to roll up the windows and Deputy Murphy retrieved a dog from the cruiser and escorted the dog around the car. The video of the canine sniff shows that the dog went around the vehicle once and then sat by the passenger side rear panel of the vehicle. The videotape then shows that defendant Miller was told the dog had alerted was asked to get out of the vehicle. Deputy Miller and another officer proceeded to search the passenger compartment, Miller's luggage, and the trunk. Deputy Miller opened the trunk with a trunk-release lever in the passenger compartment. The sheriffs' deputies appear to find cocaine in the center of the trunk.
At the hearing, Deputy Murphy testified that he decided to conduct the canine sniff because "the key, the California registration, the newly issued Kansas license, I felt that the party may possibly be trafficking illegal contraband." Tr. at 11. Murphy testified that the dog indicated the presence of narcotics. Id. Murphy testified that when the dog is a passive alert dog and "when he smells the presence of drug odors, his indication is that he sits and looks back at me." Id. at 25.
Miller sought suppression of the cocaine found as a result of the search as a violation of his Fourth Amendment rights. The magistrate first found that the initial traffic stop was valid, noting that "any traffic violation, regardless of its perceived severity, provides an officer with probable cause to stop the driver." RR at 4. The magistrate found deputy Murphy had an objective basis for believing that Miller had breached either of two traffic laws — failure to signal a lane change and weaving within his lane as providing reasonable suspicion of operating a vehicle while impaired. Id. at 5. The magistrate also found that a "number of routine tasks such as computerized checks of the vehicle registration, driver's license and criminal history, and the issuing of a citation" are authorized as part of a valid traffic stop. Id. at 6. The magistrate noted that a dog sniff is not a search under the Fourth Amendment, and further noted that the detention was brief. Id. at 6. The magistrate concluded that Deputy Murphy's observations justified the minimal detention necessary to conduct the canine deployment. Id. The magistrate further stated that "[a] short detention for a dog sniff after the completion of a traffic stop does not violate the Fourth Amendment." Id. at 5.
Miller objects to the magistrate's RR. He contends that the dog sniff violated his Fourth Amendment rights and seeks suppression of any evidence derived from the subsequent search.
II. DISCUSSION
The first clause of the Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const. amend. IV. Thus, the Fourth Amendment "protects two types of expectations, one involving `searches,' the other `seizures,'" United States v. Jacobsen, 466 U.S. 109, 121 (1984), and requires that both be reasonable. City of Indianapolis v. Edmond, 531 U.S. 32, 36 (2000). A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. Id. A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property. Id.
A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Edmond, 531 U.S. at 36. The requirement of individualized suspicion is relaxed only in limited circumstances that involve important governmental interests or immediate hazards. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 562 (approving brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 455 (1990) (approving a sobriety checkpoint aimed at removing drunk drivers from the road); Delaware v. Prouse, 440 U.S. 648, 663 (1979) (suggesting that a roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible). The government's "general interest in crime control" and desire to "detect evidence of ordinary criminal wrongdoing" will not justify a regime of suspicionless stops. Edmond, 531 U.S. at 41-42 (refusing to recognize an exception to the general rule of individualized suspicion for government pursuit of general crime control, including narcotics-interdiction).
Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the meaning of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809 (1996). Certain limited intrusions on people or property can legitimately be supported by less than probable cause to arrest. Terry v. Ohio, 392 U.S. 1 (1968). The principles of Terry v. Ohio govern traffic stops. United States v. Fuse, No. 04-1753, 2004 WL 2827284, *2 (8th Cir. Dec. 10, 2004). Whether a temporary detention is reasonable depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers. Terry, 392 U.S. at 16-19.
Also, although police can legitimately "ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage," a seizure occurs when police "convey a message that compliance with their requests is required." Florida v. Bostick, 501 U.S. 429, 434 (1991).
The result of that balancing is generally not in doubt where the search or seizure is based upon probable cause. Whren, 51 U.S. at 818-19. A traffic violation — however minor — creates probable cause to stop the driver of a vehicle. United States v. Fuse, No. 04-1753, 2004 WL 2827284, *3 (8th Cir. Dec. 10, 2004) (noting that generally a traffic stop must be supported by at least a reasonable, articulable suspicion that criminal activity has occurred or is occurring). Id. "When an officer makes a routine traffic stop, `the officer is entitled to conduct an investigation reasonably related in scope to the circumstances that initially' justified the interference." Id. ( quoting United States v. McCoy, 200 F.3d 582, 584 (8th Cir. 2000) (per curiam)). The officer also may detain a motorist while the officer completes certain routine tasks, such as writing a citation and completing computerized checks of a driver's license, vehicle registration, and criminal history. Fuse, 2004 WL 2827284 at *3.
However, once a law enforcement officer decides to let a routine traffic offender depart with a ticket, a warning or an all clear, then the Fourth Amendment applies to limit any subsequent detention or search. Id. A traffic stop is complete once an officer decides not to issue a citation and returns the driver's license to the driver. United States v. $404,905 in U.S. Currency, 182 F.3d 643, 648-49 (8th Cir. 1999); United States v. Beck, 140 F.3d 1129, 1135 (8th Cir. 1998) (same). Where police elect not to make a custodial arrest and instead issue a citation, a subsequent search of an automobile and its driver will violate the Fourth Amendment in the absence of reasonable suspicion of danger. Knowles v. Iowa, 525 U.S. 113, 116-17 (1998).
The officer cannot continue to detain the motorist after the initial stop is completed unless the officer has "a reasonably articulable suspicion for believing that criminal activity is afoot." Fuse, 2004 WL 2827284 at *3; United States v. Yang, 345 F.3d 650, 654 (8th Cir. 2003) (stating that the issue is whether, after conclusion of traffic stop, officers "had reasonable suspicion that other criminal activity may be afoot, justifying their decision to detain the vehicle"); United States v. Morgan, 270 F.3d 625, 630 (8th Cir. 2001) ("the Fourth Amendment was not violated if [the officer] had reasonable suspicion to detain the van for the length of time it took to conduct the dog sniff"); Beck, 140 F.3d at 1135-36 (reasonable person would not feel free to leave after being informed that officer intends to subject vehicle to dog sniff). "Reasonable suspicion requires a particularized and objective basis for suspecting legal wrongdoing." United States v. Jacobsen, No. 04-1952, 2004 WL 2735534, *1 (8th Cir. Dec. 2, 2004). The further detention can be based on information developed before the termination of the traffic stop since "the termination of a traffic stop does not effectively erase the objectively reasonable suspicions developed by a police officer during the stop." Fuse, 2004 WL 2827284 at *4. Accordingly, although a dog sniff is not a search that would require probable cause, the continued detention of Miller and his vehicle is a seizure that requires "a reasonable, articulable suspicion, premised on objective facts," that the vehicle contains contraband or evidence of a crime. United States v. Place, 462 U.S. 696, 702 (1983); see also Edmond, 531 U.S. at 40 (noting that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment, but a dog sniff does not convert the seizure to a search).
The court thus finds error in the magistrate's analysis; the magistrate erred in concluding that the dog sniff did not violate the Fourth Amendment and in conflating the related concepts of the "probable cause" needed to search with the "reasonable, articulable suspicion based on objective facts" required to briefly detain a person or automobile. The evidence shows that the traffic stop ended once Deputy Murphy returned Miller's driver's license to him. Although a dog sniff has been held not to amount to a search that would implicate the more exacting standard of probable cause under the Fourth Amendment, it remains a seizure which requires reasonable suspicion in order to detain the person or thing seized. See Place, 462 U.S. at 707 (finding that a dog sniff of luggage in a public place is reasonable as a negligible intrusion only after first finding reasonable, articulable suspicion).
The magistrate's finding that "[a] short detention for a dog sniff does not violate the Fourth Amendment" was based in part on his determination that "[t]he period of time between when the officer informed Miller no traffic ticket would be issued until the police canine alerted to the presence of contraband was just over five minutes and the entire traffic stop from the initial stop until the police canine alerted was just over fifteen minutes." RR at 5 7. That reasoning, relying on what can be characterized as a de minimis exception to the requirement of reasonable, articulable individualized suspicion, see Fuse, 2004 WL 2827284 at *2 n. 2, is not tenable. Cases that implied, in dicta, that there is such an exception, see e.g., $404,905.00 in U.S. Currency, 182 F.3d at 647, predated the Supreme Court's finding in Edmond that general crime concerns will not support a suspicionless dog sniff. Edmond, 431 U.S. at 458.
The United States Supreme Court is presently considering the issue of whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop. See Illinois v. Caballes, No. 03-293, cert. granted 124 S. Ct. 1875 (April 5, 2004). Until the court issues its decision in that case, this court must apply its understanding of Supreme Court precedent. See Hutto v. Davis, 454 U.S. 370, 375 (1982) (stating that Supreme Court precedent must be followed by lower federal courts).
Having found that reasonable suspicion is necessary, the court must consider whether the totality of circumstances presented reasonable, articulable grounds for suspicion. See Jacobsen, 2004 WL 2735534 at *1. Whether an officer had reasonable suspicion is a mixed question of law and fact. See Ornelas v. United States, 517 U.S. 690, 696, 699 (1996). The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. Illinois v. Wardlaw, 528 U.S. 119, 124 (2000).
The court finds the uncontroverted facts, when viewed in totality, do not rise to the level of reasonable suspicion of drug activity. The state of origin of a vehicle does not provide a reasonable suspicion of drug trafficking activity. United States v. Yousif, 308 F.3d 820, 828 (8th Cir. 2002) (holding that driving a car with out-of-state plates on a highway known to be a drug corridor did not support reasonable suspicion to stop the defendant's car); Beck, 140 F.3d at 1137 (noting that out-of-state plates are consistent with innocent behavior and are not probative of reasonable suspicion). Conduct typical of a broad category of innocent people provides a weak basis for suspicion. Id. Miller's refusal to consent to search cannot provide any basis for suspicion. See Florida v. Royer, 560 U.S. 491 (1983) (noting that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business). Any "refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure." Florida v. Bostick, 501 U.S. 429, 436 (1991).
The facts here are indistinguishable from the facts presented in United States v. Beck. See Beck, 140 F.3d at 1135-36 (noting that combination of seven innocent factors did not create reasonable suspicion to warrant continued detention). In fact, the driver in Beck arguably presented more suspicious circumstances than those present here. See id. In this case, the deputy sheriff, by his own admission, relied only on the out-of-state, drug-source-state plates, non-ownership of the vehicle, the single key, and the recentlyissued license to justify the search. None of these factors, singly or in combination, support the continued detention. Deputy Murphy gave no reason why a recently-issued license was suspicious, there was no testimony that Miller had been asked any questions about his driver's license. The single key was explained as a drug-dealer's method of limiting access to the trunk, but the videotape revealed that the vehicle had an interior trunk-release latch. Deputy Murphy offered no explanation for disbelief of Miller's explanation for his trip to California, other than to theorize that he thought it odd for a person to have such a short trip if a relative had died. Again there was no testimony concerning the details Miller provided about the trip, and there was no audio coverage of the conversation about the reason for the trip on the videotape. There was no evidence that Miller acted nervous, was evasive or gave inconsistent answers. The videotape shows that Deputy Murphy commented only that Miller had given short answers.
The video recording shows that the officers were admittedly on a drug-interdiction mission and that defendant's failure to consent provided the main impetus for the dog sniff. Any consent, if it had been provided, would have been invalid as the result of Deputy Murphy's coercive conduct in threatening a ticket or impound for refusal. Deputy Murphy stated that he also based the decision to conduct the dog sniff on defendant's failure to prove ownership of the car. It is neither illegal nor inherently suspicious to drive another person's car. The government has not provided any authority for the proposition that Miller's car would have been subject to impound.
While law enforcement officers certainly should be permitted to rely on their experience and expertise in detecting criminal behavior, there is a point at which "experience" becomes only an "unparticularized suspicion or `hunch.'" Terry v. Ohio, 392 U.S. at 27. This is such a case. Accordingly,
IT IS ORDERED that
1. The defendant's objection, Filing No. 19, to the report and recommendation of the magistrate, Filing No. 18, is sustained; and
2. The defendant's motion to suppress is granted.