Opinion
Case No. 03-10029-01-WEB
May 2, 2003
MEMORANDUM AND ORDER
The defendant Daniel Rodriguez is charged with one count of possession with intent to distribute in excess of five kilograms of cocaine. The matter came before the court on May 1, 2003, for a hearing on the defendant's motion to suppress evidence. The court took the motion under advisement at the conclusion of the hearing. After reviewing the evidence and the relevant law, the court concludes that the motion to suppress should be denied.
I. Facts.
The court finds the following facts from the evidence presented at the hearing. On January 30, 2003, shortly after 11:00 a.m., Kansas Highway Patrol Troopers Chris Roubideaux and John Rule were in their patrol car on Interstate 35 just outside of Wichita, Kansas. Roubideaux was driving when he saw a gold Ford pickup truck traveling northbound on I-35 that drifted over the shoulder line of the highway twice within a short period of time. Based on his observations, Roubideaux had probable cause to believe the driver of the truck violated a Kansas ordinance requiring drivers to maintain a single lane of traffic. See K.S.A. § 8-1522. Roubideaux decided to stop the vehicle. He turned on his emergency lights, which activated a videotape camera system in the patrol car. The stop began at about 11:04 a.m. The subsequent events were captured on videotape. A copy of the tape was introduced at the hearing as Government's Exhibit 1.
The court need not recount in full detail the events of the stop. In brief, Roubideaux approached the passenger side of the pickup truck (which enabled him to stay out of the way of traffic on the highway) in order to speak to the driver. The only occupant of the truck was the defendant Daniel Rodriguez. Rodriguez leaned over and opened the passenger door of the truck, and Roubideaux engaged in conversation with him. Roubideaux asked if Rodriguez were tired, explaining that he had been weaving on the highway. Rodriguez said he was, and they talked briefly about his travel. Rodriguez said he was coming from San Antonio and that he was a promoter for a band. When Roubideaux asked to see Rodriguez' license and registration, the defendant produced them and said that the truck belonged to his brother-in-law. Rodriguez appeared to be unusually nervous at first; his hands shook visibly and he stuttered somewhat. The registration receipt for the vehicle, Government's Exhibit 7, showed that the truck was registered to Javier Porraz, Jr., at an address of 1300 So. 52nd Terrace in Kansas City, Kansas. The registration bore a date of 12-13-2002. When Roubideaux asked where Rodriguez' brother-in-law lived, Rodriguez said it was on the paper. He was unable to give the address, but he said his brother-in-law lived close to him in Kansas City, adding that he thought it was on 47th Street. The defendant said he had gone to San Antonio to pick up a box of CD's (compact discs) and to sign some paperwork. When Roubideaux asked how long he had been in San Antonio, the defendant said about thirty or forty-five minutes. Rodriguez indicated he had been gone from Kansas City about three days. The tape shows that early on in the stop, Trooper Rule, who was standing behind Roubideaux, stooped down by the rear of the truck and by the wheel wells to see if he could see any evidence of a hidden compartment.
At about 11:07 a.m., Roubideaux returned to his patrol car to check on the license and registration. The license checked out okay, and there was no report of the truck having been stolen. At about 11:16 a.m., Roubideaux completed his check and his paperwork and returned to speak to the defendant. He opened the passenger door again and explained that he was issuing a warning citation for failing to maintain a single lane, and he told the defendant to pull over in the future if he got tired. After a brief conversation, Roubideaux and the defendant each said "thanks" to each other, as if the encounter was concluded, when Roubideaux asked if he could ask a few questions. The passenger door to the truck was still open. Without hesitating, the defendant said yes, and indicated it was no problem. Roubideaux explained that narcotics were often transported from the Southwestern United States and asked Rodriguez if he were carrying any drugs. After the defendant said he was not, Roubideaux asked if he could search the vehicle, to which the defendant replied — again without hesitating — "yes, go ahead." The defendant told the officer that he worked for the union in Kansas City as a concrete laborer, which seemed to be at odds with the statements he made earlier about traveling around as a promoter for a band. Roubideaux asked the defendant if he would mind stepping out of the vehicle and whether he would mind if the officer searched him for weapons for the officer's safety. The defendant indicated he would not mind, and Roubideaux did a brief pat down search.
It was chilly at the time, so Roubideaux retrieved a jacket from the truck for Rodriguez to wear. At approximately 11:19 a.m., the officers began a thorough search of the vehicle for any signs of drugs or a hidden compartment. At first they focused on the passenger door and the interior of the cab, perhaps because the defendant had initially opened the passenger door instead of rolling down the window. The defendant stated that he had been driving the truck for a couple of months. The officers initially had some suspicions concerning the inside of the cab, and they can be heard on the tape commenting about an area on the floor that appeared to have been repainted. They engaged in a close inspection of various areas in the truck where drugs might be hidden, including the doors, the interior of the cab, the bed of the pickup, a piece of luggage in back, the tailgate, the spare tire, and the wheel wells. At about 11:30 a.m, the officers opened the hood of the truck and examined underneath. Within about a minute of doing so, they observed that one of the windshield wiper cowlings was loose, as if it had been recently removed, and that there appeared to be a covering underneath the cowling where there would ordinarily be a cavity. The officers quickly determined that the space had been covered over with body putty, or "Bondo," and an examination from underneath the car disclosed that a portion of the fender had an unusual piece of metal welded to it near the passenger door seam. The welded piece did not appear to be a factory-installed item. At this point, which was a little more than ten minutes after consent for the search was given, the officers concluded there was a hidden compartment under the windshield wiper cowling. They spent the next twenty or thirty minutes trying to find a way to get into the compartment. Roubideaux had his trained drug-sniffing dog "Narco" with him and took the dog around the vehicle, but the dog gave no indication of the presence of drugs. Eventually the officers removed a portion of the fender next to the compartment and found numerous packages inside wrapped in plastic. They cut open one of the packages and found a white powder, which was later tested and found to be cocaine. After the packages were found, the defendant was arrested.
Unbeknownst to the officers at the time, the fender had been rigged with a latching device that allowed it to be released and pivoted around so as to allow access to the hidden compartment.
II. Summary of Arguments.
The defendant does not challenge the initial stop of the car, but he argues the officers violated his fourth amendment rights by unlawfully detaining him without reasonable suspicion after they gave him a warning citation. He argues that a reasonable person in these circumstances would not have felt free to decline the officers' requests and to proceed on his way, particularly with one officer standing next to the open door of the truck while asking for consent. The defendant argues that his purported consent was involuntary and was tainted by the unlawful detention. He further contends that the officers exceeded the scope of any consent that was given.
In response, the Government first argues that the defendant lacks standing to object to the search because he failed to show he had a reasonable expectation of privacy in the vehicle. It further argues that the defendant voluntarily consented to answer questions and to let the officers search the vehicle. Finally, it contends the officers had a reasonable suspicion of criminal activity that justified a detention and an examination of the vehicle.
III. Discussion.
The Fourth Amendment protects citizens against unreasonable searches and seizures. U.S. Const. amend. IV. Fourth Amendment rights are personal, however, and may not be asserted vicariously. See Rakas v. Illinois, 439 U.S. 128, 140 (1978). A defendant challenging the lawfulness of a search has the burden of proving that the search violated his individual Fourth Amendment interests. United States v. Rascon, 922 F.2d 584, 586 (10th Cir. 1990). Whether an individual has a cognizable Fourth Amendment right depends upon two factors: whether the individual has exhibited a subjective expectation of privacy and whether society recognizes that subjective expectation as reasonable. Id.
In order for a defendant to show such an expectation of privacy in an automobile, the defendant bears the burden at the suppression hearing to show a legitimate possessory interest in or a lawful control over the vehicle. United States v. Allen, 235 F.3d 482, 489 (10th Cir. 2000). Here, the defendant argues his burden was met because Trooper Roubideaux testified that during the stop the defendant claimed the truck belonged to his brother-in-law. The court concludes that this evidence of an uncorroborated, unsworn, out-of-court statement is insufficient to meet the defendant's burden of showing that he had legitimate possession of the car. Cf. Allen, 235 F.3d at 489 (noting factors relevant to establishing expectation of privacy). In this regard, the court notes there was evidence at the hearing that the truck had actually been purchased only a month and half before the stop, although the defendant told the officers he had been driving the truck for a couple of months, and that he did not know the address of the registered owner and gave an incorrect street number for him. Under the circumstances, the defendant failed to produce evidence that he had legitimate possession of the truck, and he therefore has no standing to object to the search of the vehicle. Allen, 235 F.3d at 490. At the same time, the court notes that the defendant retains the right to challenge the lawfulness of his own detention and may seek to suppress any evidence found as a result of an unlawful detention. United States v. Nava-Ramirez, 210 F.3d 1128 (10th Cir.), cert. denied, 531 U.S. 887 (2000).
Even assuming the defendant could show standing to contest the search, for the reasons discussed infra the court concludes that the officers did not violate the defendant's fourth amendment rights in connection with the stop and search.
When a driver has produced a valid license and proof of entitlement to operate a vehicle, the officer may issue a citation, but then must usually allow the driver to proceed without further delay or questioning. United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999). Further questioning is permissible under the Fourth Amendment: (1) if the officer has an objectively reasonable and articulable suspicion that the driver is engaged in illegal activity; or (2) if the driver voluntarily consents to further questioning. Id. With regard to this second exception for "consensual encounters," there are few, if any bright-line rules. United States v. Elliott, 107 F.3d 810, 813 (10th Cir. 1997). The court must consider all the circumstances to determine whether the officer's conduct would have communicated to a reasonable person that the individual was not free to decline the officers' requests or otherwise terminate the encounter. Id (quoting Florida v. Bostick, 501 U.S. 429, 439 (1991)). Only when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen, has a "seizure" occurred within the meaning of the Fourth Amendment. By contrast, a consensual encounter occurs where a reasonable person would feel free to disregard the police and to go about his business. Although the return of documents, such as a driver's license or other personal papers, is a prerequisite to an encounter becoming consensual, it is not always sufficient to show that an encounter was consensual. Elliott, 107 F.3d at 814. Even after the officer returns a driver's papers, the encounter might not be consensual where "there was evidence of a coercive show of authority, such as the presence of more than one officer, the display of a weapon, physical touching by the officer, or his use of a commanding tone of voice indicating that compliance might be compelled." Id.
Based on the evidence at the hearing, the court concludes that the defendant voluntarily consented to stay and talk to the troopers after they returned his papers and issued a warning citation. The videotape shows without question that the defendant promptly and rather cheerfully indicated he would answer questions for the troopers after they gave him the warning citation. The court finds that the officers employed no force or show of authority to coerce the defendant into staying and talking with them. The defendant notes that the officer was standing by the open passenger door when he asked this question and that he never told the defendant he was free to be on his way if he so desired. The evidence showed, however, that there was no coercion or implied restraint in the officers' language or actions. Trooper Roubideaux was not blocking the car, and the evidence showed that he was friendly and polite at all times. Nothing in his tone, manner or body language would have conveyed to a reasonable person that he was obligated to stay. To the contrary, the officer's actions conveyed that the traffic stop was concluded and that he was asking if the defendant would give his voluntary permission for further conversation. It is true that the trooper had opened the passenger during this encounter with the defendant, but the evidence showed that he did so as a result of the defendant's initial decision to open the passenger door instead of lowering the window to talk to the officers. The officer never restrained the defendant in any way from closing the door or from leaving, and his body language in fact suggested he was ready to close the door if the defendant did not want to talk to the officers. Cf. In United States v. Quiroz, No. 01-40120, 2002 WL 1067453 (D.Kan. 2002) (officer's act of opening passenger door was a detention because no reasonable person would believe he was free to leave when the officer was, in effect, blocking the vehicle by standing near the door). In sum, considering all of the circumstances, the court concludes that a reasonable person in this situation would have felt free to terminate the encounter and to be on his way. As such, the encounter at this point did not — at least not initially — constitute a "seizure" within the meaning of the Fourth Amendment.
The court further finds that the defendant voluntarily consented to let the officers search the vehicle for drugs. The government bears the burden of proving that consent was in fact voluntary. United States v. Sanchez-Valderuten, 11 F.3d 985, 990 (10th Cir. 1993). Whether consent is freely and voluntarily given is a question of fact determined from the totality of the circumstances. United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998). The government must show the consent was unequivocal and specific and freely given without express or implied duress or coercion. United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir. 1995). The court concludes that the government has met its burden here. The evidence showed that the defendant immediately and voluntarily agreed to let the officers search the vehicle, and that he was more than willing to cooperate with them. The evidence likewise showed that the defendant voluntarily agreed to get out of the car and to undergo a brief pat down search. The officers employed no duress or coercion to obtain consent, and the defendant's manner and tone show that he was agreeable to the officers' requests.
The defendant argues that even if he consented to the search, the officers exceeded the scope of consent by extending the search and by removing the fender of the truck without his permission. The scope of a search "is generally defined by its expressed object," and "is limited by the breadth of the consent given." United States v. Elliott, 107 F.3d 810, 814-15 (10th Cir. 1997). The standard for measuring the scope of consent under the Fourth Amendment is that of "objective" reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect. See Florida v. Jimeno, 500 U.S. 248, 251(1991). In this instance, there was no limitation placed on the consent to search the truck for drugs. As such, the officers had authority to look at any areas of the truck that might contain such contraband. See United States v. Ramstad, 308 F.3d 1139, 1146-47 (10th Cir. 2002) (consent to look for drugs or contraband implies that the officer could look wherever drugs might be hidden). The evidence showed that within ten or fifteen minutes of obtaining consent, the officers had located a hidden compartment near the fender of the vehicle. The court concludes that this period of time did not exceed the scope of the consent given by the defendant. The court further concludes that the officers reasonably concluded at that point that the truck contained a makeshift hidden compartment that likely contained drugs. Under the circumstances — which included not only the discovery of the hidden compartment but also the defendant's inconsistent statements about his work and travel, his questionable story of having traveled to San Antonio to pick up some CD's and staying there only thirty minutes, and his incorrect attempt to identify the street address of the registered owner of the vehicle — the court concludes that the officers had probable cause to believe at that point that the vehicle contained drugs. Cf. United States v. Toro-Palaez, 107 F.3d 819, 825 (10th Cir. 1997) (noting cases holding that manifestations of a hidden compartment give rise to reasonable suspicion or probable cause for search). Thus, the officers' extension of the search thereafter and their removal of the fender was valid under the "auto exception" to the warrant requirement. See Carroll v. United States, 267 U.S. 132, 151 (1925) (recognizing exception to warrant requirement for automobiles). In view of this finding, the question of whether the officers exceeded the scope of consent by removing the fender is moot.
IV. Conclusion.
The court finds that the officers did not violate the defendant's fourth amendment rights in connection with the stop or the search. Accordingly, the defendant's motion to suppress (Doc. 15) is DENIED.