Opinion
Case No. 02-20011-01-JWL
July 16, 2002
MEMORANDUM AND ORDER
Defendant Angel Serrano filed a motion (Doc. 38) to suppress the evidence obtained from the search of his car on January 28, 2002. Mr. Serrano argues that he was stopped without probable cause or reasonable suspicion that he had committed a traffic violation and, therefore, the stop was in violation of the Fourth Amendment and all evidence subsequently obtained must be suppressed. The government argues that police had probable cause or reasonable suspicion to stop Mr. Serrano for a traffic violation and that, after stopping Mr. Serrano, police developed reasonable suspicion that other criminal activity was ongoing and eventually developed probable cause to search the car for narcotics. The government also claims that Mr. Serrano consented to the search of his car. In the alternative, the government argues that prior to stopping Mr. Serrano, police had probable cause to search the car for narcotics.
Defendant John Doran filed a motion (Doc. 36) to suppress the evidence obtained in the search of his car on January 28, 2002, a search separate from the search of Mr. Serrano's car. Mr. Doran argues that he was stopped by police without probable cause or reasonable suspicion that he had committed a traffic violation. In addition, Mr. Doran argues that, if the stop was valid, the scope of the detention was not reasonably related to the circumstances which justified the stop, namely the traffic violation. The government argues that police had probable cause or reasonable suspicion to stop the car for a traffic violation, that police developed probable cause to search the car after making the traffic stop, that police had probable cause to search the car for narcotics before the car was stopped, and that Mr. Doran consented to the search of his car.
The court concludes that the searches of both cars were constitutional and denies the motions to suppress.
II. Findings of fact
On January 28, 2002, at approximately 10:00 A.M., a confidential source of the Kansas City, Kansas Police Department Narcotics Division contacted Officer Santiago Vasquez by telephone and told him that an individual named Angel Serrano had eight to ten kilograms of cocaine that he intended to sell to a man called "Big Bro." The source told Officer Vasquez that Mr. Serrano was a Hispanic male, muscularly built, with dark curly hair and a mustache, and drove a white Oldsmobile Intrigue with license number SKR-176. The informant told Officer Vasquez that "Big Bro" was a black male, approximately five feet ten inches tall, heavy set, wore heavy jewelry and a cap, and drove a gray Honda Accord with license number SLE-086. According to the informant, the sale was to take place sometime after 2:00 P.M. that day in the vicinity of Twentieth Street and Central Avenue in Kansas City, Kansas.
At approximately 10:30 A.M., police began surveillance of Mr. Serrano's home at 1513 South Sixteenth Street and also of the area near Twentieth Street and Central Avenue. At approximately 3:45 P.M., Mr. Serrano left his home carrying a duffel bag, followed by his wife and five-year-old daughter. The three drove away in a white Oldsmobile Intrigue.
Officer Miskec of the Kansas City Police Department testified that he was instructed to follow Mr. Serrano and stop the car if it committed a traffic violation. He said that he was also told that the stop was, "drug related." Officer Miskec began following Mr. Serrano. The descriptions of subsequent events given by Officer Miskec and Mr. Serrano vary drastically.
Officer Miskec testified that he observed Mr. Serrano's car changing lanes without signaling and traveling faster than the posted speed limits. Officer Miskec admitted that he did not stop the car immediately after observing the traffic violations but followed the car for several miles. According to Officer Miskec, he did not immediately stop the car because existing traffic and road conditions would have made the stop unsafe. At approximately 3:50 P.M., Officer Miskec stopped Mr. Serrano at the intersection of Eighteenth Street and Central Avenue. According to Officer Miskec, after Mr. Serrano pulled to the side of the road he got out of the car and started to walk away. Officer Miskec ordered Mr. Serrano to return and asked for Mr. Serrano's drivers licence.
After running a check of the license, Officer Miskec asked Mr. Serrano whether he had any guns or drugs in the car. According to Officer Miskec, Mr. Serrano answered that he had no guns but said nothing about drugs. Officer Miskec testified that Mr. Serrano was nervous and sweating. According to Officer Miskec, he spoke to the female passenger, Mr. Serrano's wife, and she told Officer Miskec that they were driving home. Officer Miskec testified that this was inconsistent with what Mr. Serrano had told him. After speaking separately with Mr. Serrano and Mr. Serrano's wife, Officer Miskec asked Mr. Serrano for consent to search his car for weapons and narcotics. According to Officer Miskec, Mr. Serrano responded, "Fuck it, you got me" and admitted that he had eight kilograms of cocaine in his car in a blue bag on the floor. Officer Miskec testified that Mr. Serrano then gave consent to search the car. The gross weight of the cocaine found in Mr. Serrano's car was approximately nine and one-half kilograms.
According to Mr. Serrano, he was taking his wife to the beauty salon and had just stopped in front of the salon when he saw a police car behind him. Mr. Serrano insisted that he used his turn signal before stopping in front of the salon. He also insisted that he had not been speeding and that he had used his turn signal when changing lanes. Mr. Serrano testified that as soon as he got out of his car, the police officer told him to put his hands up and then asked if he had any drugs or weapons in the car. According to Mr. Serrano the officer never asked for his license and never spoke to his wife. Mr. Serrano testified that he was placed in handcuffs and told that the car would be searched. He admitted that at first he lied to the officer and said that he did not have drugs or weapons in the car but after being told that his car would be searched, he admitted that he had drugs in the car. Mr. Serrano denies ever giving consent to search the car.
Police observed a car matching the description of the car the informant said "Big Bro" would be driving "around approximately 18th and Central" and began following the car. Police stopped the car at approximately 4:00 P.M at Twenty-ninth Street and State Avenue. There were two occupants in the car. At the time of the stop, police knew that Mr. Serrano had been arrested and that there was cocaine found in the car that Mr. Serrano was driving. Police drew their guns and pointed them at Mr. Doran and his passenger. Both Mr. Doran and his passenger were handcuffed and Mr. Doran was placed in an unmarked police car. A police dog was brought to the scene and, according to his handler, the dog alerted to the outside of the car. The dog then entered the car and alerted to a duffel bag which was later determined to contain $119,147 in cash.
Mr. Doran testified briefly at the hearing. According to Mr. Doran, he was stopped at the intersection of Twenty-ninth Street and State Avenue after making a left turn onto State Avenue. Mr. Doran insisted that he used his turn signal before making the turn.
III. Discussion
To the extent that they are in conflict, the court accepts Officer Miskec's testimony over the testimony of Mr. Serrano. The court does not find Mr. Serrano's version of events believable. It seems unlikely that as soon as Mr. Serrano exited his car that Officer Miskec ordered him to "put [his] hands up." Mr. Serrano's claim rings of Hollywood and not the police conduct with which the court is familiar. Mr. Serrano did not testify that Officer Miskec had his weapon drawn. The court does not believe that Officer Miskec ordered Mr. Serrano to raise his arms while his gun was holstered. Mr. Serrano claims that the very next thing that happened was that Officer Miskec asked Mr. Serrano if he had any drugs or weapons in the car. Again, this is inconsistent with the court's experience. Mr. Serrano claims that Officer Miskec did not first ask for identification or explain to Mr. Serrano why he had been stopped. In the court's experience, police generally explain to citizens why they have been stopped and always identify the individual whom they have stopped. Mr. Serrano also claims that Officer Miskec did not speak to the passenger in his car, his wife. In the court's experience, police generally speak to the passenger if they are suspicious of the driver's explanation of his activity, as was the case here. Mr. Serrano testified that he never consented to search his car. This seems inconsistent with his admission that there were drugs in the car.
The only pause the court had with Officer Miskec's testimony was his statement that Mr. Serrano simply blurted out "Fuck it, you got me" and admitted that he had eight kilograms of cocaine in his car. Mr. Serrano, however, also agreed that he said "you got me" and that there were drugs in his car. Thus, the court finds nothing questionable about Officer's Miskec's testimony. The court also finds that Officer Miskec's demeanor indicated that he was telling the truth. Mr. Serrano, on the other hand, was nervous and had difficulty answering questions on cross-examination. The court believes that Mr. Serrano's demeanor indicated that he was being deceptive.
Because the court finds that Mr. Serrano committed traffic violations in the presence of Officer Miskec, it was appropriate for Officer Miskec to stop Mr. Serrano. United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998) ("An initial traffic stop is valid under the Fourth Amendment not only if based on an observed traffic violation, but also if the officer has a reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring."). After stopping Mr. Serrano, Officer Miskec quickly developed a reasonable and articulable suspicion that additional criminal activity was ongoing, such as the presence of drugs or weapons. Initially, Mr. Serrano attempted to walk away from the car and had to be ordered to return by Officer Miskec. Mr. Serrano was nervous and was sweating despite the cold January weather. United States v. West, 219 F.3d 1171, 1179 (10th Cir. 2000) ("Although normal nervousness exhibited by those stopped for a traffic citation is usually entitled to limited significance in the probable cause analysis, in this case it is entitled to somewhat more weight because of the extreme and continued nervousness exhibited by [the defendant].") When inquiring about their travel plans, Officer Miskec was given inconsistent answers by Mr. Serrano and his wife. United States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 1997) (explaining that the Tenth Circuit has "repeatedly held (as have other circuits) that questions relating to a driver's travel plans ordinarily fall within the scope of a traffic stop"); United States v. McRae, 81 F.3d 1528, 1535 (10th Cir. 1996) (explaining that the Tenth Circuit has "held that implausible or contradictory travel plans can contribute to a reasonable suspicion of illegal activity."). Officer Miskec asked Mr. Serrano if there were drugs or weapons in the car and was told only that there were no weapons.
These factors all tended to corroborate the confidential informant's tip and support reasonable suspicion that Mr. Serrano had drugs in his car. United States v. Hinojos, 107 F.3d 765, 768 (10th Cir. 1997) (explaining that the Tenth Circuit has held "under the `fellow officer' rule that law enforcement officers may pool their information and that reasonable suspicion is to be determined on the basis of the collective knowledge of all the officers involved."). In addition, the informant had given a detailed description of Mr. Serrano's car and Mr. Serrano was driving in the direction of the location that the informant said the sale would occur. The court believes that police had reasonable suspicion that Mr. Serrano had narcotics in his car and, thus, constitutionally could extend the length and scope of his detention.
After some additional questioning, Mr. Serrano admitted to Officer Miskec that there were drugs in the car. At that point, the court concludes that Officer Miskec had probable cause to search the car. United States v. Nielsen, 9 F.3d 1487 — 1489-90 (10th Cir. 1993) ("Probable cause to search a vehicle is established if, under the `totality of the circumstances' there is a `fair probability' that the car contains contraband or evidence.") (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). In addition, the court finds that Mr. Serrano consented to the search of his car after admitting that there were drugs in the car. United States v. Zubia-Melendez, 263 F.3d 1155, 1162 (10thd Cir. 2001) ("Consent is one such exception to the warrant requirement and this court has therefore held that a vehicle may be searched if a person in control of the vehicle has given his voluntary consent to the search.") (citations omitted).
The court concludes that police had probable cause to search Mr. Doran's car when they stopped him on State Avenue. "Probable cause to search a vehicle is established if, under the totality of the circumstances, there is a fair probability that the car contains contraband or evidence." United States v. Downs, 151 F.3d 1301, 1303 (10th Cir. 1998). The court believes that the informant's tip and the substantial corroboration of the tip by police established probable cause under the totality of the circumstances. The court notes that while there was no evidence admitted at the hearing about the past reliability of the confidential informant, the identity of the informant was known to police and, thus, the informant could be held accountable. United States v. Gay, 240 F.3d 1222, 1227 (10th Cir. 2001) (pointing out that a confidential informant with whom police are familiar is more reliable than an anonymous tipster because the informant can be held accountable for giving false information.). Police also corroborated a great deal of the information provided by the informant. United States v. Smith, 63 F.3d 956, 960 (10thd Cir. 1995) (explaining that the Tenth Circuit has "held that when the reliability of an informant has been corroborated by extrinsic information, it is unnecessary to otherwise establish the informant's credibility."). Police found both of the cars described by the informant in detail, including the license numbers. Both cars were in the area where the informant said the sale would occur. Most significantly, by the time police stopped Mr. Doran, Mr. Serrano had admitted to possessing drugs and cocaine was found in his car. United States v. Allen, 986 F.2d 1345 (10th Cir. 1993) ("The discovery of cocaine on his companion confirmed the informant's tip and provided probable cause to arrest both men. The informant had correctly described the suspects and predicted their location and the crack cocaine that they would be carrying. The discovery of the cocaine on Mr. Howard verified the tip and provided probable cause to arrest Mr. Allen."). With substantial corroboration of the informant's tip, the court holds that police had probable cause to search Mr. Doran's car for evidence of the planned drug sale.
IT IS THEREFORE ORDERED that defendants' motions to suppress (Docs. 36 and 38) are denied.
IT IS FURTHER ORDERED that this case is set for trial to the jury on Tuesday, August 13, 2002, to begin at 9:30 A.M. Any motions in limine shall be filed no later than August 5, 2002; responses thereto shall be filed by August 8, 2002. The court will conduct a limine conference in the courtroom at 3:30 P.M. on August 12, 2002.