Opinion
Case No. 2:99-CR-406C
May 5, 2000
ORDER
This matter is before the court on defendant Wayne Leroy Schlosser's motion to suppress evidence obtained during a warrantless inventory search of the car he was driving on November 9, 1997. According to Schlosser, the search of the vehicle violated the Fourth Amendment because: (1) the officer did not have reasonable suspicion that justified an investigative detention; and (2) the officer did not have probable cause to arrest him, and thus, had no basis for impounding the car or conducting an inventory search. Having fully considered the evidence, the submissions of the parties and applicable legal authorities, the court finds that the search of the vehicle does not violate the Fourth Amendment.
Defendant also challenged the validity of the traffic stop, however, during oral arguments, he conceded that the traffic stop was valid.
Background
A. Factual Background
On November 9, 1997, Utah Highway Patrol Sergeant Lance Bushnell tracked a car on radar that was headed eastbound on I-70 near Salina, Utah. (See Tr. May 18, 1998, at 5.) The car was traveling at 77 miles per hour in a zone posted 75 miles per hour. (See id. at 6.) Because the Utah Highway Patrol had a policy of strict enforcement of the speed limit, Bushnell decided to stop the car to issue a warning. (See id. at 6-7, 30-31.) While following the car, Bushnell observed the driver change lanes without using a turn indicator. (See id. at 7.) Bushnell stopped the car to issue a warning citation for speeding and failing to properly signal a lane change.
The turn indicator was used on a second lane change.
As Bushnell approached the vehicle, Schlosser, the lone occupant of the vehicle, stuck his head out of the car window and demanded to know, in a voice Bushnell describes as "belligerent," why he had been stopped. (See id. at 9-10, 43.) Bushnell explained which traffic violations he had observed and asked Schlosser why he was yelling. (See id. at 10.) Bushnell asked Schlosser for a driver's licence and registration. (See id. at 8.) Schlosser provided Bushnell with his driver's license and, because the car was rented, a rental agreement. (See id. at 9.) The rental agreement was in the name of Donald Martin, who Schlosser explained was his boss or associate. (See id. at 9-10.) Bushnell did not notice that Schlosser was listed as an authorized driver on the rental agreement. (See id. at 32-33.)
Schlosser denies that he stuck his head out of the window and yelled. However, the court finds Bushnell's testimony more credible, in part, because Schlosser's memory of the traffic stop could have been diminished. A urine test done on Schlosser after his arrest was positive for amphetamine and methamphetamine.
Bushnell explained that, after speaking with and observing Schlosser, he believed Schlosser might be driving under the influence ("DUI"). (See id. at 12, 14.) Schlosser had mood swings — varying between calm, animated, belligerent, and sleepy. (See id. at 23, 43-45.) Schlosser's eyes were bloodshot, glassy, and looked "withdrawn." (Id. at 11.) Schlosser's explanation of his appearance and demeanor was that he had been driving all day and night. (See id.)
Based on his observations, Bushnell decided that he should conduct field sobriety tests on Schlosser. Before asking Schlosser to get out of the car, Bushnell, concerned for his own safety (particularly in view of Schlosser's belligerence and mood swings), asked Schlosser if he had ever been arrested. (See id. at 11, 46.) Schlosser stated that he had been arrested in Richfield, Utah, for drug possession. (See id. at 11; Tr. Feb. 11, 2000, at 32-33.) While Bushnell wrote a warning citation for speeding and failing to properly signal a lane change, he had dispatch check Schlosser's criminal history. (See Tr. May 14, 1998, at 13.) The criminal history check confirmed that Schlosser had been arrested in Richfield, Utah, for drug possession. (See id. at 13.) When Bushnell asked Schlosser questions regarding his earlier arrest (such as, the amount of drugs involved), Schlosser again became belligerent and Bushnell asked him to get out of the rental car. (See id. at 14-15; Tr. Feb. 11, 2000, at 34.) As Schlosser got out of the car, he dropped the car keys on the floor of the car and locked the car door. (See Tr. May 14, 1998, at 15.) He was unaware that he had locked himself out of the car until Bushnell told him. (See id. at 16.)
Bushnell then conducted four field sobriety tests on Schlosser — the horizontal gaze nystagmus ("HGN"), the lack of convergence ("LOC"), the walk and turn, and the one leg stand. (See id. at 17-18.) To conduct the HGN test, Bushnell asked Schlosser to focus on a pen that Bushnell moved horizontally. (See id. at 16.) Schlosser had difficulty focusing on the pen; instead of smoothly tracking the pen, his eyes "rebounded" away from the object and back again. (See id. at 17, 52.) For the LOC test, Schlosser was told to focus on the pen while Bushnell moved it closer to Schlosser's face. Normally, a person's eyes will converge as the pen is moved closer to them; however, Schlosser's left eye had difficulty coming in, and his right eye would "float off." (Id. at 17, 50). Bushnell considered the eye movements to be typical for a person who is impaired by drugs. (See id. at 17, 53.)
Schlosser also had difficulty with the walk and turn test and the one leg stand. For the walk and turn test, Schlosser was asked to walk in a straight line placing the heel of the front foot directly in front of the toe on the other foot. (See id. at 54.) On the second step he took, he lost his balance and swore. After that he swayed as he walked and used his arms to balance. (See id. at 17-18, 54-55.) For the one leg stand test, Schlosser was asked to stand on one leg and count. Schlosser counted extremely rapidly and used his arms for balance. (See id. at 18.) Based on Bushnell's observations, Bushnell considered Schlosser to be impaired by drugs. (See id. at 19.)
Salina City Police Officer Hailes arrived at the traffic stop and told Bushnell that Schlosser appeared "loaded." (Id. at 19-20.) Bushnell told Hailes that Schlosser had not passed the field sobriety tests and asked Hailes to also test him. (See id. at 20.) While Hailes conducted field sobriety tests on Schlosser, including two pulse tests showing that Schlosser had an elevated heart rate, Bushnell arranged for a tow truck, wrote a citation for DUI, and began filling out a form for the impound of the rental car. (See id. at 19-21.) After the sobriety tests were complete, Schlosser was handcuffed and placed in Hailes' police vehicle. (See id. at 24.)
Hailes told Bushnell that Schlosser's first pulse test indicated a heart rate of 108, the second pulse test indicated a heart rate of 100. (See id. at 20.) According to Bushnell, a stimulant will cause a pulse rate to increase above the normal rate of 60 to 90. (See id.)
Because Schlosser had locked the keys in the rental car, the officers could not conduct a search of the car until the tow truck driver arrived and unlocked the car door. (See id. at 25-26.) Pursuant to UHP policy, General Order Number 83-09, Bushnell conducted an inventory search of the car before it was towed, and listed the items on the impound form. (See id. at 22-26.) During the inventory search, Bushnell found and removed from a piece of luggage in the trunk of the car, a bag containing approximately one pound of methamphetamine. (See id. at 26-27.)
B. Procedural Background
1. The First Indictment
Schlosser was initially indicted on January 7, 1998, for possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). (See Case No. 2:98-CR-14S). On April 21, 1998, Schlosser filed an amended motion to suppress evidence. The matter was referred to Magistrate Judge Boyce, pursuant to 28 U.S.C. § 636(b)(1)(B). An evidentiary hearing was held on May 14, 1998, oral argument was heard on October 19, 1998, and Judge Boyce entered a Report and Recommendation on October 21, 1998, recommending that the motion to suppress be denied. Schlosser filed a timely objection to the recommendation, and the government filed a timely response. On March 16, 1999, the trial court adopted the Report and Recommendation denying the motion to suppress.
Schlosser then filed a motion to dismiss claiming that the Speedy Trial Act was violated because the order denying the motion to suppress was not entered until after the statutory time to bring the defendant to trial had lapsed. The government agreed that the Speedy Trial Act had been violated, and on July 8, 1999, the court entered an order dismissing the indictment without prejudice.
2. The Second Indictment
On July 21, 1999, the grand jury returned the indictment in this case, alleging the same conduct as the previous indictment. On September 13, 1999, Schlosser filed a motion to suppress evidence. On October 8, 1999, the court denied Schlosser the right to file a motion to suppress because the issue of suppression had been previously litigated. That same day the court reconsidered its ruling and entered an amended order stating that it would consider the motion to suppress. The parties were informed that the court would consider all reliable evidence, including the evidence previously received in Case No. 2:98-CR-14S. (See Tr. Nov. 22, 1999, at 3.) Evidentiary hearings were conducted, in which the defendant and defendant's toxicology expert Dennis J. Crouch testified, and Bushnell, the arresting officer, was further cross examined. The parties were given time to file memoranda of law, and oral argument was heard by the court on April 24, 2000.
Analysis
An inventory search of the rental car Schlosser was driving was conducted at the time the car was impounded. Schlosser argues that his Fourth Amendment rights were violated by the search, because: (1) the officer did not have reasonable suspicion that justified detaining him beyond the period necessary to issue a warning citation; and (2) the officer did not have probable cause to arrest him for DUI. Schlosser argues that if the officer had not violated his rights, the car would not have been impounded and the search would not have been necessary. Schlosser does not argue that if the officer had probable cause to arrest him, that the search of the car was improper.
A. Investigative Detention
Schlosser argues that his Fourth Amendment rights were violated because Bushnell detained him longer than was necessary to issue a warning citation. Schlosser does not dispute that Bushnell could, during the traffic stop, perform a computer check on his driver's license and criminal history and determine whether he was entitled to drive the car; however, he argues that after he produced a valid license and the rental agreement listing him as an authorized driver of the car, he should not have been subject to further delay for additional questioning. See United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997; United States v. Wood, 106 F.3d 941, 945 (10th Cir. 1997).
There are two exceptions to the general rule that an officer on a routine traffic stop may not delay the driver for additional questioning and investigation after a valid license and proof of entitlement to drive the car have been produced. First, an officer may
detain the driver and conduct further questioning if, during the traffic stop, the officer acquires an objectively reasonable and articulable suspicion that the driver is engaged in illegal activity. [Second], if the encounter between the officer and the driver ceases to be a detention, but becomes consensual, and the driver voluntarily consents to additional questioning, no further Fourth Amendment seizure of detention occurs.
Anderson, 114 F.3d at 1064 (quotation and citations omitted). An officer may draw inferences from the circumstances based on his experience. See Ornelas v. United States, 116 U.S. 1657, 1663 (1996). Although, reasonable suspicion may not be based on only one fact or observation that could have an innocent explanation, it may be based on a collection of facts or observations capable of an innocent explanation. See, e.g., United States v. Sokolow, 490 U.S. 1 (1989); United States v. Barron-Cabrera, 119 F.3d 1454, 1458 (10th Cir. 1997). Reasonable suspicion "does not depend upon any one factor, but on the totality of the circumstances." Wood, 106 F.3d at 946.
In Utah "a person may not operate or be in actual physical control of a motor vehicle . . . if the person has any measurable controlled substance or metabolite of a controlled substance in the person's body." U.C.A. § 41-6-44.6(2). Therefore, if Bushnell had a reasonable suspicion that Schlosser had a measurable amount of a controlled substance in his body, the investigative detention of Schlosser, to conduct field sobriety tests, did not violate the Fourth Amendment. In determining whether Bushnell had a reasonable suspicion, the court considers only the information Bushnell had obtained during the time it took him to write the warning citation and to investigate whether Schlosser had a valid driver's license.
Bushnell had considerable experience and training in detecting drivers impaired by alcohol or drugs. At the time of this traffic stop, Bushnell had been involved in approximately two hundred DUI arrests and had received training for certification as a drug recognition examiner (although at the time of the traffic stop his certification had lapsed). A few minutes after Bushnell began conversing with Schlosser, Bushnell began to suspect that Schlosser was "loaded" (impaired by drugs). The reasons Bushnell gives for his suspicion include Schlosser's flushed facial appearance, mood swings, facial expressions, and glassy, bloodshot, and withdrawn eyes. According to Bushnell, Schlosser's explanation that he was fatigued from driving all night and day, could explain the glassy, bloodshot, and withdrawn appearance of Schlosser's eyes, however, it did not explain his facial expressions, mood swings, and flushed face. Bushnell considered Schlosser's claim that he had been up all night and day to be consistent with use of a stimulant.
Although Bushnell received information, while he was filling out the warning citation, that Schlosser had previously been arrested for drug possession, the court does not consider that information in determining whether Bushnell had reasonable suspicion. According to Bushnell, Schlosser's criminal history was checked after he had decided to conduct field sobriety tests on Schlosser. Therefore, the information is not relevant to establishing whether Bushnell had reasonable suspicion.
Although no factor alone would provide objectively reasonable and articulable suspicion justifying the investigative detention, considering the totality of the circumstances and the reasonable inferences Bushnell made, based on Bushnell's extensive experience and training, the court finds that Schlosser's Fourth Amendment rights were not violated by the investigative detention. Bushnell had an objectively reasonable and articulable suspicion justifying further questioning and field sobriety testing to determine whether Schlosser was impaired by drugs.
Because the court finds that objectively reasonable and articulable suspicion justified the investigative detention, it does not reach the issue of whether Schlosser voluntarily consented to the investigative detention.
B. Probable Cause for Arrest
The arrest of Schlosser for DUI does not violate the Fourth Amendment if probable cause existed at the time of the arrest; meaning that the facts and circumstances within Bushnell's knowledge that were reasonably trustworthy were sufficient to warrant a prudent man in believing that Schlosser had violated U.C.A. § 41-6-44.6(2). See Cottrell v. Kaysville City, 994 F.2d 730, 733-34 (10th Cir. 1993). According to Schlosser, Bushnell did not have probable cause at the time of the arrest because the field sobriety tests Bushnell used were not the best tests available for detecting impairment caused by a stimulant, such as methamphetamine. This argument is not persuasive. Utah's DUI statute, U.C.A. § 41-6-44.6(2), prohibits a person from operating or physically controlling a motor vehicle if the person has any measurable controlled substance in the person's body. The statute does require that the controlled substance be a stimulant. Bushnell could have probable cause that Schlosser was violating U.C.A. § 41-6-44.6(2), without identifying which particular controlled substance was involved. Bushnell did not have to have proof beyond a reasonable doubt at the time of the arrest.
The tests conducted on Schlosser (the HGN, the LOC, the walk and turn, and the one leg stand) may not be the tests used by a toxicology expert, such as defendant's expert witness Dennis J. Crouch, or by medical personnel, however, they are standard field sobriety tests. See Salt Lake City v. Garcia, 912 P.2d 997, 998 (Utah Ct.App. 1996) (referring to the HGN and the walk and turn test as standard field sobriety tests). Schlosser's performance on each test indicated to Bushnell, based on his experience and training, that Schlosser was impaired by drugs. Bushnell's observations of Schlosser's demeanor and appearance before and during the field sobriety tests, added to Bushnell's conclusion.
Considering the totality of the circumstances, including Bushnell's training and experience, the court finds that probable cause existed.
D. Inventory Search
Schlosser does not dispute that if the investigative detention and the arrest were proper, that the impound of the car was proper. It is undisputed that the inventory search (including the search of the luggage) was conducted according to a written UHP policy, and that the search was administered in good faith. Accordingly, the court finds that the inventory search did not violate the Fourth Amendment.
Order
For the reasons set forth above, defendant's motion for suppression of evidence is DENIED.
SO ORDERED.