Summary
holding that the traffic stop became unlawful after one police officer "retained" the completed "citation . . . for another minute-and-a-half while he waited for" a second officer "to finish walking his dog around the car"
Summary of this case from Commonwealth v. RiveraOpinion
No. 2:14-cr-00342-KJM-1
07-21-2016
UNITED STATES of America, Plaintiff, v. Jairo Buenrostro CORNEJO, Defendant.
Richard J. Bender, U.S. Attorney's Office, Sacramento, CA, for Plaintiff. Michael Petrik, Jr., Office of the Federal Defender, Sacramento, CA, for Defendant.
Richard J. Bender, U.S. Attorney's Office, Sacramento, CA, for Plaintiff.
Michael Petrik, Jr., Office of the Federal Defender, Sacramento, CA, for Defendant.
ORDER
Kimberly Mueller, UNITED STATES DISTRICT JUDGE
Relying in large part on the Supreme Court's relatively recent decision in Rodriguez v. United States, ––– U.S. ––––, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), defendant Jairo Cornejo moves to suppress physical evidence seized and statements made on December 13, 2014 following a traffic stop. The government opposes the motion. The court heard testimony at an evidentiary hearing on September 23, 2015 and March 29, 2016, and heard argument on August 12, 2015 and June 8, 2016. At each hearing, Richard Bender appeared for the government and Kelly Babineau appeared for Cornejo. As explained below, the court GRANTS IN PART defendant's motion.
I. PROCEDURAL BACKGROUND
On December 15, 2014, the government filed a criminal complaint, alleging that defendant had possessed with the intent to distribute methamphetamine and heroin under 21 U.S.C. § 841(a)(1). ECF No. 1. On December 18, 2014, a grand jury indicted defendant on two counts, consistent with the complaint's allegations. ECF No. 5. Cornejo entered a not guilty plea on December 30, 2014. ECF No. 8. On June 17, 2015, defendant moved to suppress evidence and requested an evidentiary hearing. ECF No. 28. The government opposed the motion, ECF No. 32, and Cornejo replied, ECF No. 33. On August 12, 2015, the court held an initial hearing and determined an evidentiary hearing was necessary to resolve factual disputes. See ECF No. 35.
Section 841 states, "[I]t shall be unlawful for any person knowingly or intentionally...to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance...." 21 U.S.C. § 841(a)(1).
The court completed the first day of the evidentiary hearing on September 23, 2015 and, due to various scheduling conflicts and requests for continuances, completed the second day of the evidentiary hearing on March 29, 2016. ECF Nos. 38 & 66. Shasta County Deputy Sheriff Jesse Gunsauls, one of the two deputies involved in the traffic stop, testified for the government. Jeff Dalton, an employee with Enterprise Car Rental's Sacramento legal compliance office, and Laurie Sowder, a training manager at a consolidated 911 dispatch center in Shasta County, testified for defendant. The following exhibits were admitted into evidence:
• a dash cam video of the traffic stop (Ex. 1; Bates No. 0115);
• a photograph of Cornejo's rental car showing the position of the deputies' vehicles at the time of the stop, after Deputy Hughes arrived (Ex. 2; Bates No. 050);
• photographs of the passenger area and passenger side floor of Cornejo's rental car at the time of the stop (Exs. 3, 3a; Bates Nos. 0033, 0034);
• a photograph of Cornejo's Washington state driver's license (Ex. 4; Bates No. 0081);
• Cornejo's rental car agreement and photographs of the rental agreement (Exs. 5, 6a, 6b, 6c; Bates Nos. 0016, 0060, 0061, 0063);
• a photograph of the warning citation completed by the deputies for Cornejo's alleged traffic violation (Ex. 7; Bates No. 0011); and
• the Shasta County Sheriff's dispatch logs for the incident (Ex. 15; Bates Nos. 00128, 00130–33).
The parties submitted closing arguments in the form of post-hearing briefs. ECF Nos. 76 & 77. The court heard oral argument on June 8, 2016. The parties then filed supplemental authorities in support of their positions, ECF Nos. 79 & 80, and the motion was submitted on June 15, 2016.
II. RELEVANT FACTS
A. Initial Stop
On Saturday, December 13, 2014, at or about 9:09 a.m., Deputy Gunsauls was traveling north on Interstate I-5 near Redding, California. Dashboard Video 9:08:52, Ex.1 ("Vid."); Evid. Hr'g Tr. 29, ECF Nos. 49 & 72 ("Tr."); see Investigation Report 5, Mot. Suppress Ex. A, ECF No. 28-1 ("Rep."). Gunsauls was driving a marked Chevrolet Tahoe as a K-9 unit. Tr. 24; see Rep. 1. His patrol vehicle was equipped with a radar system and an audio/video recording system. Tr. 24–25; see Rep. 1. At the time, Gunsauls was assigned to the domestic highway enforcement unit of the Shasta County Sheriff's Office, an intelligence unit that has specialized training in counter terrorism and counter smuggling. Tr. 13, 84. The unit does high volume traffic stops between Highway 36, Highway 299, Highway 44, and Interstate 5 within Shasta County, and Gunsauls' primary duty is traffic-based enforcement. Tr. 13, 85. Gunsauls also supplements SINTF, a local task force that works in conjunction with law enforcement agencies to enforce California's controlled substance laws. Tr. 86; see Shasta County Sheriff's Office, Major Crimes , http://www.co.shasta.ca.us/index/sheriff_index/divisions/major_crimes.aspx (last visited July 18, 2016).
The time stamps cited in this order are taken from the closed captioning on the government's CD exhibit of the video, Ex. 1. Cornejo does not contest the accuracy of these time stamps.
In his post-hearing brief, defendant claims Sowder's testimony regarding the dispatch logs establishes that a second law enforcement agency, the Shasta Interagency Narcotics Task Force ("SINTF"), first contacted dispatch and ran Cornejo's license plate at 9:15 a.m., and that Gunsauls was not dispatched until 9:18 a.m. ECF No. 76 at 13 n.1. This contention is not supported by Sowder's testimony or the other evidence before the court. The video taken from Gunsauls' dashboard shows Gunsauls initiating the traffic stop at 9:08:52 a.m. Although the parties have not fully explained the information in the dispatch logs, and the logs do not identify the officers' names, Tr. 228, it appears most likely from the dashboard video and Gunsauls' testimony that Gunsauls was the officer who first contacted dispatch and ran Cornejo's license plate at 9:15 a.m., and then Deputy Ray Hughes was the officer who was dispatched at 9:18 a.m. This conclusion is further supported by Gunsauls' testimony that he supplements SINTF. Tr. 86, 228.
Gunsauls observed a white Nissan Sentra sedan ("the sedan" or "the rental car") ahead of him in the number one lane (far left lane), which he visually estimated to be traveling at seventy miles per hour. Tr. 29–30; see Rep. 1. The posted speed limit was sixty-five miles per hour. Tr. 30; see Rep. 1. Cornejo was the driver and sole occupant of the sedan. Tr. 143, 150; Rep. 1. Gunsauls moved directly behind the sedan in the number one lane and activated his radar unit, which returned a reading of seventy miles per hour. Tr. 29–30; Rep. 1. As Gunsauls approached the sedan, Cornejo slowed to sixty miles per hour, five miles per hour below the posted speed limit. Tr. 30; Rep. 1. Gunsauls testified that he then stopped the sedan because it "was impacting other traffic on the roadway" and had violated California's speed laws prohibiting excessive or excessively slow speeds, California Vehicle Code sections 22349 and 22400. Tr. 30–31, 110–11; Ex. 7; Rep. 1. The only other traffic visible on the video at the time of the stop, however, is a gray mini-van that was driving in the number two lane (right lane) at some distance in front of the sedan. Vid. 9:08:57. The stop occurred just north of the Fawndale Road exit on Interstate 5. Tr. 40, 81; Rep. 1.
Section 22349 provides, in pertinent part: "...[N]o person may drive a vehicle upon a highway at a speed greater than 65 miles per hour." Cal. Veh. Code § 22349(a).
Section 22400 provides, in pertinent part: "No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic unless the reduced speed is necessary for safe operation, because of a grade, or in compliance with law...." Cal. Veh. Code § 22400(a).
Once Gunsauls activated his overhead lights, the in-car camera and audio system automatically started recording. Tr. 24–26; Vid. 9:08:52. Throughout the stop, as described below, Gunsauls turned his microphone off and on at various times to selectively mute the audio recording. Tr. 25–28, 168–69. Hughes did not have a microphone on his uniform, so Gunsauls controlled the audio recording completely. Tr. 56. Gunsauls testified that he turned off his microphone during his conversations with Hughes and other law enforcement personnel for "officer safety reasons." Tr. 28. When asked what he meant by this, Gunsauls explained that someone watching the video at a later date could learn his tactics, and that he "[didn't] want to educate the persons that are committing these crimes on how to better do them." Tr. 180; see also Tr. 28, 164–66.
In response to Gunsauls' emergency lights, Cornejo pulled over immediately. Vid. 9:08:52–9:09:10; Tr. 80, 143. Cornejo accidentally turned on the windshield wipers instead of his blinker. Vid. 9:09:16–9:09:19; Tr. 175. Gunsauls approached the passenger side door and told Cornejo he stopped him because Cornejo was driving at seventy miles per hour and then "slowed way down" to sixty miles per hour, and there were "cars passing [him] on the wrong side of the road." Vid. 9:09:28–9:09:39; Rep. 1. He asked for Cornejo's license and the registration and proof of insurance for the car. Id. 9:09:50–9:10:03. Cornejo told him that the sedan was a rental and that he was driving to Washington. Id. 9:10:05–09:10:10; Rep. 1. Cornejo first handed Gunsauls a credit card, realized his mistake, and then gave him a valid Washington state driver's license and a rental agreement from Enterprise Car Rental. Tr. 32; Rep. 1.
The rental agreement was a pre-printed Enterprise form with handwriting on it. Exs. 5, 6a, 6b, 6c; Tr. 41. Gunsauls testified that the rental agreement appeared suspicious, because he had never seen a handwritten rental agreement before, the agreement included a manual imprint of Cornejo's credit card, and the agreement overall did not appear complete or "legitimate." Tr. 41, 45–46. In addition, the agreement had the phrase "CA only" written on it, even though Cornejo said he was traveling to Washington state. Tr. 43–46.
Gunsauls asked about Cornejo's current plans, and Cornejo said he was driving from San Jose, California, where he had been visiting his parents. Vid. 9:10:10–9:10:35; Rep. 2. The agreement showed Cornejo had rented the car at 11:20 a.m. the day before. Ex. 5; Tr. 42. Gunsauls looked into the car and saw three empty Rock Star-brand energy drinks, an empty Arizona-brand watermelon drink can, two empty water bottles, one cell phone, and a small bag of chips on the front passenger floor board. Tr. 33, 150–52, 177, 189–91; Ex. 3; Rep. 2. He also saw a second cell phone on the front passenger seat, a GPS unit on the center console, and an Arizona-brand drink in the cup holder of the center console. Tr. 178; Rep. 2. Based on his training and experience, Gunsauls believed the beverage containers indicated long-distance travel over a short period of time. See Tr. 33–34, 175–77. He believed San Jose was approximately six hours south of the location of the traffic stop, so he "found it strange or suspicious that somebody would drink that much liquid in six hours, especially energy drinks." Tr. 33. At the evidentiary hearing, Gunsauls acknowledged that he did not know when Cornejo consumed the drinks, and they could have been there from the day before when he rented the car. Tr. 33–34, 154–55.
Gunsauls testified that he noticed Cornejo was breathing rapidly and displaying signs of nervousness. Tr. 51–54, 112, 175–77, 188–89; see Rep. 2. The video does not provide a clear view of Cornejo during the initial conversation to corroborate Gunsauls' account of Cornejo's behavior. Vid. 9:09:28–9:10:49. Cornejo's breathing is not detectable on the audio due to the amount of background noise. Id. Gunsauls told Cornejo to give him a second to check the documents and said he would probably just give Cornejo a warning. Vid. 9:10:43–9:10:49; Rep. 2. This initial conversation lasted approximately one-and-a-half minutes. Vid. 9:09:28–9:10:49.
B. Records Check and Dispatch of Deputy Hughes
Gunsauls returned to his patrol car with Cornejo's driver's license and rental agreement while Cornejo waited in the sedan. Id. 9:10:49–9:10:55. Gunsauls turned off his microphone. Id. 9:11:02; Tr. 27.
Gunsauls testified that at this point, he was sixty percent certain Cornejo was smuggling something, based on his nervousness and the empty beverage containers in his vehicle. Tr. 38–40, 184; see also Tr. 33–34, 51–54, 175–77. This initial suspicion raised a number of safety concerns. Tr. 38, 48, 184. Gunsauls testified that he knew from his training and experience that persons engaging in smuggling sometimes travel together with an associated vehicle to help defend the substance in their car. Tr. 39–40. As a result, Gunsauls needed to both keep an eye on Cornejo and look out for other cars traveling with him. Tr. 38.
While in his patrol car, Gunsauls says he notified dispatch of the traffic stop through his radio, reviewed Cornejo's documents, contacted the El Paso Intelligence Center ("EPIC") to determine if there were any warrants outstanding for Cornejo, and ran the sedan's license plate. Tr. 46–47, 145, 149, 182–83. Gunsauls ran the license plate on the computer inside his patrol car at or about 9:15 a.m. and learned within a minute that the sedan was not reported lost or stolen. Tr. 229; Ex. 15. at 4–5. The timing of the EPIC check is not clear from the record, but Gunsauls testified that it typically takes between three and five minutes to complete. Compare Tr. 183–84 (Gunsauls did not remember the timing, but on average an EPIC check takes three to five minutes), with Tr. 117 (Gunsauls was on the phone with EPIC for ten minutes, until Hughes arrived). Gunsauls learned Cornejo had no outstanding warrants. Tr. 47, 147, 149. Although Gunsauls had the capability, he did not at this time run Cornejo's driver's license to verify its validity. Tr. 148–49. Neither did he call Enterprise Car Rental to verify the legitimacy of the agreement. Tr. 121–22, 149. Gunsauls also did not begin filling out the warning citation. See Vid. 9:10:58–9:21:11 (reflection in window shows Gunsauls setting his clipboard down on the far right-hand side of his dashboard, where it remains untouched for approximately ten minutes); id. 9:21:38–9:21:48 (after exiting his patrol car, Gunsauls pulls out a blank warning citation, places it on top of his clipboard, checks his watch, and then begins filling out the citation). Gunsauls later wrote in his Investigative Report that he observed Cornejo fidgeting while he waited in the sedan, Tr. 2, but Cornejo's actions as seen on the dashboard video do not convey any obvious nervousness, see Vid. 9:10:58–9:21:11.
When Gunsauls broadcast over dispatch that he was conducting a traffic stop, Deputy Ray Hughes overheard the transmission and responded that he was on his way to the scene. Tr. 183–86, 199, 230; Ex. 15 at 1. Gunsauls normally works with a second deputy when conducting a highway traffic stop. Tr. 199–201. Gunsauls waited for Hughes to arrive. Tr. 184.
C. Instruction to Exit Vehicle and Pat-Down Search
Approximately eight minutes after Gunsauls initiated the stop, Hughes arrived. Tr. 146; Ex. 15 at 1. Gunsauls and Hughes spoke briefly off camera and without the audio on, for about four minutes. Tr. 49, 119, 146, 160. Gunsauls was halfway seated in the front passenger seat of the patrol car and Hughes was standing outside of the car by the open, passenger side door. Tr. 119, 146. Approximately twelve minutes into the stop, Hughes approached the passenger side of the sedan and instructed Cornejo to exit. Vid. 9:21:12–9:21:25; Tr. 49; Rep. 2. Gunsauls left his patrol car and turned his microphone back on. Vid. 9:21:18–9:21:29; Tr. 119. At Hughes' request, Cornejo consented to a pat down search, and while Hughes searched him, Gunsauls began filling out the written warning citation on his clipboard in front of his patrol car. Vid. 9:21:38–9:22:00; Tr. 49–50, 120; Rep. 2. Hughes found no weapons. Vid. 9:21:38–9:22:00; Tr. 49; Rep. 2. Hughes then told Cornejo to stand next to Gunsauls in front of the patrol car. Vid. 9:21:56.
D. Completion of Written Citation and Questioning
Gunsauls spoke with Cornejo while he continued to fill out the written warning citation. Id. 9:22:04. During this time, Hughes stood guard to the side, in the background of the video or off camera. Id. 9:22:04–9:22:23. Gunsauls testified that Hughes was there to watch out for other vehicles and keep an eye on Cornejo. Tr. 56–57, 196. Later, however, Gunsauls had Hughes complete the warning citation while Gunsauls simultaneously conducted a K-9 sniff of the sedan. Vid. 9:28:23–9:30:40. Nothing in the record suggests any of the safety concerns that required Hughes to provide backup at one point lessened later in the stop.
The warning citation is a one-page document that contains fifteen lines. Ex. 7. Gunsauls testified that practical issues, such as needing to confirm the recipient's eye color, and safety concerns, such as staying aware of surroundings, add time to filling out the citation. Tr. 171–74. During his conversation with Cornejo, Gunsauls wrote in the time and date; Cornejo's name, mailing address, driver's license number, age, and physical description; the vehicle's license plate and description; the owner and insurer of the vehicle; and the vehicle code violation. Ex. 7; see Tr. 132 (describing which sections Gunsauls filled in, and which Hughes later filled in as described below). Cornejo is a 5'10‘, Hispanic male and was 200 pounds and twenty-seven years old at the time. Ex. 7; see Vid. 9:26:40 (confirming information with Cornejo). Cornejo told Gunsauls he was driving at sixty-six miles per hour on cruise control, and then decreased the cruise control to sixty-five miles per hour when he saw Gunsauls' patrol vehicle. Vid. 9:22:08–9:22:39.
Gunsauls told Cornejo that his radar read sixty-miles per hour when he stopped Cornejo and that a mini-van had passed them on the right-hand side. Vid. 9:22:30–9:22:49; Rep. 2. As noted, the video shows the gray mini-van driving in the number two lane and at some distance in front of Cornejo when he was pulled over. Vid. 9:08:52. No other cars are visible in the video at the time of the stop.
Gunsauls told Cornejo the citation was just a warning and was not a real ticket. Vid. 9:23:08–9:23:13; Rep. 2. Cornejo asked if he would have to go to court, and Gunsauls told him he would not need to, because it was just a warning. Vid. 9:23:25–9:23:32; Rep. 2.
While he continued completing the warning citation, Gunsauls asked Cornejo more questions, such as how long he was in San Jose; where Toppenish, the city on Cornejo's driver's license, is located; personal demographic information requested by the warning citation; what he did for a living; and where he was going to return the car. Vid. 9:23:05–9:28:23; Rep. 3. Cornejo responded that he was visiting his parents in San Jose for a few days, details cars for a living, and was going to return the rental car in Washington. Vid. 9:23:05–9:28:23. Cornejo delayed slightly before responding where Toppenish is located. Vid. 9:23:44–9:24:06. Gunsauls asked whether he was supposed to return the car in Washington or California, and he said Washington. Vid. 9:24:26–9:24:34. Gunsauls said the rental car agreement indicated "CA only." Vid. 9:24:36–9:24:40. Cornejo said, "Well I'm supposed to, but then I checked my (inaudible). I gotta return it over here 'cuz I don't want to come back and, uh, you know." Vid. 9:24:42–9:24:49. Gunsauls asked if Enterprise knew he was going to return it in Washington, and Cornejo said yes. Vid. 9:24:50–9:24:54. Gunsauls said he had never seen that before. Vid. 9:24:58–9:25:04. Cornejo said it is a little more expensive, but his own car was not a good car, and he did not want it breaking down in the middle of the road. Vid. 9:25:04–9:25:12; see also Rep. 3. In the Investigative Report, Gunsauls wrote at this point he "believed [Cornejo] was lying to [him] and his story was not making sense." Rep. 3.
Gunsauls testified that Cornejo's nervousness appeared to increase as the stop progressed, even after he was told he would receive only a warning. Tr. 52–53; Rep. 3. During their conversation, Cornejo shifted his weight between his feet and occasionally shrugged his shoulders and bit or pursed his lips. See, e.g. , Vid. 9:23:34, 9:24:23–9:24:26, 9:26:35; see Tr. 53–54; Rep. 3. Nothing in Cornejo's demeanor or tone of voice conveys anger, belligerence, or lack of respect. Cornejo again questioned the basis for the stop, and Gunsauls told him he had been speeding and then slowed below the speed limit. Vid. 9:25:20–9:26:31. Gunsauls then asked whether there were guns or drugs or large amounts of money in the sedan, and Cornejo responded that there were not. Vid. 9:27:17–9:27:34; Rep. 3. Gunsauls requested permission to search the sedan. Vid. 9:27:34–9:27:54; Rep. 3. Cornejo initially gave his consent, but then withdrew it after Gunsauls explained that he could say, "No." Vid. 9:27:34–9:27:54; Rep. 3. Gunsauls asked if everything was okay with his license, and he said yeah. Vid. 9:28:12–9:24:14. Gunsauls did not at this time run Cornejo's driver's license to verify its validity. Tr. 180; Ex. 15 at 1–2. Gunsauls asked if Cornejo had ever gotten a ticket before, and he said he had once, for rolling a stop sign. Vid. 9:28:14–9:28:22.
E. K-9 Sniff of Rental Car
After speaking with Cornejo for approximately six-and-a-half minutes in total, Gunsauls instructed Hughes to finish the warning citation. Vid. 9:28:23–9:28:33; Tr. 56; Rep. 3. At this point, approximately twenty minutes had passed since Cornejo was first pulled over. Gunsauls again turned off his microphone and retrieved his narcotics K-9 from the patrol car to perform a sniff of the sedan. Vid. 9:28:35–9:29:16; Tr. 56. Hughes wrote the words, "Insur.," "(Radar 70 MPH)," "N/B I-5 N of Fawndale," and "J Gunsauls 8N53" on the warning citation. Ex. 7; Tr. 132. Hughes completed these entries in less than one minute, Vid. 9:28:30–9:29:16, but then held on to the citation and Cornejo's documents and waited another minute-and-a-half for Gunsauls to complete the K-9 sniff, Vid. 9:29:16–9:30:40. Gunsauls testified that the K-9 alerted to the front of the sedan. Tr. 56–57; Rep. 3. The video shows the K-9 first responded with some enthusiasm at the open, passenger side window, Vid. 9:29:24, then sniffed more intently the right front area of the bumper, Vid. 9:29:28. See also Tr. 57. When Gunsauls walked around the vehicle a second time, the view from the video is mostly blocked, but Gunsauls testified that the K-9 again sniffed the front area of the vehicle more intently, and when Gunsauls walked him away from that area, he dragged Gunsauls back towards the front of the car. Tr. 57; Vid. 9:30:00–9:30:30. Gunsauls returned the K-9 to his patrol car. Vid. 9:30:30; Rep. 3.
Gunsauls turned his microphone back on and asked Cornejo again whether there was anything illegal in the sedan. Vid. 9:30:41. Cornejo again said no. Vid. 9:30:46. Gunsauls asked how long he had the rental, and Cornejo responded he rented it the day before. Vid. 9:30:47–9:30:52. Gunsauls asked if any of his friends used marijuana, and he said no. Vid. 9:30:52–9:30:55. Gunsauls told Cornejo the K-9 had alerted to the front of the car, and he was going to take a look. Vid. 9:30:56–9:31:07.
F. Search of Rental Car and Interview of Cornejo
Gunsauls again turned off his microphone and began searching the sedan. Vid. 9:31:31. He found a store receipt from Bakersfield with a time stamp of 1:01 a.m., which was inconsistent with what Cornejo had told him because Bakersfield is located a few hours south of San Jose. Vid. 9:32:06; see id. 9:32:30; Tr. 62; Rep. 4. Gunsauls turned on his microphone and asked Cornejo about the receipt. Vid. 9:32:19, 9:32:30. Cornejo continued to deny that there was anything illegal in the car and said, "You can check." Vid. 9:32:44.
The court takes judicial notice of the distance between Bakersfield and San Jose, approximately 241 miles if driving on I-5, under Federal Rule of Evidence 201.
Gunsauls and Hughes placed Cornejo in the back of Hughes' patrol car, Vid. 9:32:46; Tr. 65, and continued searching the sedan, Vid. 9:34:41. At approximately 9:35 a.m., one of the deputies checked the validity of Cornejo's driver's license with dispatch, and it came back clear. Ex. 15 at 1–2 ("CDL: STATUS: NONE"; "STATUS: CLEAR"); Tr. 68, 127, 163–64, 167, 180, 197, 231–35. During the search, Gunsauls and Hughes discovered drug packages in the rear driver's side passenger door. Tr. 58, 65–66. At 9:52 a.m., due to safety concerns, they dispatched a third officer to the site to drive the sedan to a storage facility to continue the search. Ex. 15 at 1, 4 ("12/13/14 09:52 SH0244 CO ONE DETAINED, REQ 1 ADDTL UNIT FOR VEH TRANSPORT TO SHOP ON...WONDERLAND"); Tr. 65–67; Vid. 10:14:07–10:14:53; Rep. 4.
Gunsauls later advised Cornejo of his rights and interviewed him. Rep. 5–6. Cornejo told Gunsauls he drove from Sunnyvale to Los Angeles to pick up the drugs and was transporting them to Salem, Oregon to repay a debt. Id. He told Gunsauls he did not know exactly what he was transporting or where it was hidden, but he knew there were drugs in the car. Id. at 5.
At 1:53 p.m., the sedan was towed from the storage facility by Enterprise Towing. Rep. 6; Ex. 15 at 2, 4 ("12/13/14 13:53 SH0251 CO TOW 97 AND TOOK POSSESSION OF VEH").
G. Evidence Seized and Subject of Motion
Cornejo seeks to suppress the following evidence, which was obtained through the search:
(1) three bundles of suspected methamphetamine, weighing 3,028.6 grams (booked as D100);
(2) three bundles of suspected heroine, weighing 2,218 grams (booked as D101);
(3) $5,000 bulk U.S. currency (booked as C100);
(4) two LG cell phones (booked as M100);
(5) the Enterprise rental agreement and receipts (booked as M101);
(6) the GPS unit from the sedan; and
(7) any other evidence recovered from the sedan.
See ECF No. 28 at 2. Cornejo also seeks to suppress all statements he made, without clarifying a specific time frame for the statements. Id.
III. LEGAL STANDARDS FOR MOTIONS TO SUPPRESS EVIDENCE
"The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens ‘to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....' " United States v. Calandra , 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (quoting U.S. Const. Amend IV ). The Fourth Amendment applies to the states by virtue of the Fourteenth Amendment. Mapp v. Ohio , 367 U.S. 643, 650, 655–56, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Under the exclusionary rule, a criminal defendant may move to suppress evidence that was obtained in violation of his or her Fourth Amendment rights. Id. ; see Fed. R. Crim. P. 41(h) ; Weeks v. United States , 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). This prohibition applies both "to direct products of an illegal search—i.e., the physical evidence found during the search itself—and to indirect products of the illegal search—i.e., statements or physical evidence subsequently obtained in part as a result of the search—if they bear a sufficiently close relationship to the underlying illegality." United States v. Shetler , 665 F.3d 1150, 1157 (9th Cir.2011) (citation and internal quotation marks omitted); see also Wong Sun v. United States , 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
The Supreme Court has explained that the exclusionary rule "is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." Calandra , 414 U.S. at 348, 94 S.Ct. 613 ; see Davis v. United States , 564 U.S. 229, 236–37, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). As a result, not every Fourth Amendment violation calls for the remedy of suppression of the evidence. See Davis , 564 U.S. at 232, 242–44, 131 S.Ct. 2419. When deciding a motion to suppress, courts first determine whether a Fourth Amendment violation occurred, and then consider whether the suppression of evidence is the appropriate sanction. Id.
With respect to the first inquiry, "searches and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions." Minnesota v. Dickerson , 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (citations and internal quotation marks omitted). When a defendant moves to suppress evidence, the government bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure falls within one of the delineated exceptions to the warrant requirement. See United States v. Huguez – Ibarra , 954 F.2d 546, 551 (9th Cir.1992) ; see also United States v. Matlock , 415 U.S. 164, 177 n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (citing Lego v. Twomey , 404 U.S. 477, 488–89, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) ).
One such exception is a so-called Terry stop. In Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that police may briefly detain a person they reasonably suspect is connected with criminal activity to investigate the circumstances that provoke suspicion. Id. at 27–29, 88 S.Ct. 1868. Reasonable suspicion "exists when an officer is aware of specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion." United States v. Montero–Camargo , 208 F.3d 1122, 1129 (9th Cir.2000) (en banc) (emphasis in original); see also United States v. Michael R. , 90 F.3d 340, 346 (9th Cir.1996). This standard also applies to seizures for traffic violations, because "[a] routine traffic stop...is a relatively brief encounter and ‘is more analogous to a...Terry stop...than to a formal arrest.’ " Knowles v. Iowa , 525 U.S. 113, 117, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (quoting Berkemer v. McCarty , 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) ); accord Rodriguez v. United States, –––U.S. ––––, 135 S.Ct. 1609, 1614–15, 191 L.Ed.2d 492 (2015). As with Terry stops, "[t]he stop and inquiry must be ‘reasonably related in scope to the justification for their initiation.’ " Berkemer , 468 U.S. at 439, 104 S.Ct. 3138 (quoting United States v. Brignoni–Ponce , 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) ).
Here, Cornejo argues the warrantless traffic stop and search of his rental car were unlawful under the Supreme Court's recent decision in Rodriguez , 135 S.Ct. 1609, which was issued after the search and seizure he challenges occurred. As explained in detail below, Rodriguez held that a K-9 sniff of a vehicle conducted during a traffic stop must be supported by an independent, reasonable suspicion of criminal activity if it adds any time to the stop. Id. at 1614–16. Cornejo may invoke Rodriguez as a basis for his motion, because Supreme Court decisions construing the Fourth Amendment apply retroactively to all cases that were not yet final at the time of the decision. United States v. Johnson , 457 U.S. 537, 562, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), abrogation on other grounds recognized by Roman v. Abrams , 822 F.2d 214, 227 (2d Cir.1987) ; see also Griffith v. Kentucky , 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).
Even if the court finds a Fourth Amendment violation occurred at the first step, the government may obtain admission of the challenged evidence by establishing that an exception to the exclusionary rule applies at the second step of the analysis. Davis , 564 U.S. at 243–44, 131 S.Ct. 2419. Here, the government argues the good-faith exception applies, which provides that "searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule," Davis , 564 U.S. at 232, 131 S.Ct. 2419 ; see also Thomas , 726 F.3d at 1093 (applying Davis ' good-faith exception). The government contends that in extending the stop Gunsauls and Hughes reasonably relied on binding, pre-Rodriguez precedent, specifically, Illinois v. Caballes , 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). ECF No. 77 at 10.
This rule has also been referred to as the "faith-in-caselaw" exception to the exclusionary rule. United States v. Thomas, 726 F.3d 1086, 1093 (9th Cir.2013) (quoting Caleb Mason, New Police Surveillance Technologies and the Good–Faith Exception: Warrantless GPS Tracker Evidence After United States v. Jones, 13 Nev. L.J. 60, 66 (2012) ).
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The Court in Davis instructed that, in deciding whether to apply the exclusionary rule or the good-faith exception to that rule, courts must balance the deterrent effect of excluding the evidence against "the substantial social costs generated by the rule." 564 U.S. at 237, 131 S.Ct. 2419 (quotation marks and citation omitted); accord Utah v. Strieff , –––U.S. ––––, 136 S.Ct. 2056, 2059, 195 L.Ed.2d 400 (2016) ("[E]ven when there is a Fourth Amendment violation, [the] exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits."). The Court explained that exclusion "exacts a heavy toll on both the judicial system and society at large," because "[i]t almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence," and "its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment." Davis , 564 U.S. at 237, 131 S.Ct. 2419 (citations omitted). As a result, "[p]olice practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield ‘meaningfu [l]’ deterrence, and culpable enough to be ‘worth the price paid by the justice system.’ " Id. at 240, 131 S.Ct. 2419 (quoting Herring v. United States , 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) ). Following Davis , the Ninth Circuit has interpreted the good-faith exception as limited to police conduct "specifically authorize [d ]" by binding precedent. Thomas , 726 F.3d at 1095 (quoting Davis , 564 U.S. at 241, 131 S.Ct. 2419 ) (emphasis added in Thomas ); see also United States v. Lara , 815 F.3d 605, 613 (9th Cir.2016) (distinguishing the exception from the doctrine of qualified immunity and "declin[ing] to expand the rule in Davis to cases in which the appellate precedent, rather than being binding, is (at best) unclear").
IV. DISCUSSION
Cornejo does not dispute that Gunsauls' initial decision to pull him over was lawful. ECF No. 33 at 2 n.1. As discussed above, to lawfully detain a suspect for an investigatory traffic stop, an officer must have a reasonable suspicion that a traffic violation occurred. United States v. Lopez-Soto , 205 F.3d 1101, 1104–05 (9th Cir.2000) ; Montero–Camargo , 208 F.3d at 1129. Here, Gunsauls detected with a radar reading that Cornejo was traveling at a speed first above and then under the speed limit. Tr. 30–31, 110–11; Ex. 7; Rep. 1. This gave Gunsauls a "particularized and objective basis" for suspecting Cornejo had violated California Vehicle Code sections 22349 and 22400. See United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).
In addition, Cornejo does not dispute, and the court independently finds, that once the K-9 alerted to the front of Cornejo's car, Gunsauls had probable cause to search the car. The Supreme Court has held that a K-9 alert can give an officer probable cause to search a vehicle when the drug-detection dog is well-trained and reliable, and other circumstances surrounding a particular alert do not undermine the case for probable cause. Florida v. Harris, ––– U.S. ––––, 133 S.Ct. 1050, 1055–59, 185 L.Ed.2d 61 (2013). Gunsauls' testimony establishes that his K-9 partner, Chase, alerted to the front of Cornejo's vehicle, and that Chase was a well-trained and reliable drug-detection dog. Tr. 12, 17–23, 57–59; Vid. 9:30:09.
Two issues, then, are presented by Cornejo's motion: (1) whether the traffic stop was unlawfully prolonged under Rodriguez , 135 S.Ct. at 1614–15 ; and (2) if so, whether the good-faith exception to the exclusionary rule applies to justify prolonging the stop. The court addresses each in turn.
A. Lawfulness of Traffic Stop
1. Rodriguez
The court begins with an overview of the Supreme Court's decision in Rodriguez, supra. In Rodriguez , after issuing a warning ticket, the officer asked the defendant for consent to a K-9 sniff search of his car, which the defendant refused. 135 S.Ct. at 1613. The officer detained the defendant until a second officer arrived, then conducted a K-9 sniff of the vehicle, and the dog alerted. Id. The government argued that the seizure was justified because the seven– or eight-minute delay constituted only a "de minimis " additional intrusion on the defendant's rights. Id. at 1615–16. The Court rejected that argument. Id. It explained, "Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's ‘mission’—to address the traffic violation that warranted the stop and attend to related safety concerns." Id. at 1614 (internal citations omitted); see also id. at 1616 (explaining "an officer may need to take certain negligibly burdensome precautions," such as checking for outstanding warrants, "in order to complete his mission safely"). Because the purpose of a traffic stop is to address the traffic violation, authority for the seizure ends "when tasks tied to the traffic infraction are—or reasonably should have been—completed." Id. at 1614 ; Caballes , 543 U.S. at 407, 125 S.Ct. 834. The Court held that an officer may not conduct unrelated checks in a way that prolongs the stop "absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Rodriguez , 135 S.Ct. at 1615.
An officer's "mission" during a traffic stop typically includes routine tasks related to the enforcement of the traffic code, such as checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the car registration and proof of insurance. Rodriguez , 135 S.Ct. at 1615 ; see also United States v. Evans , 786 F.3d 779, 786 (9th Cir.2015) ; United States v. Munoz , 590 F.3d 916, 920–21 (8th Cir.2010) ("[A]fter making a traffic stop, an officer may detain the driver while he completes a number of routine but somewhat time-consuming tasks related to the traffic violation, such as computerized checks of the vehicle's registration and the driver's license and criminal history, and the writing up of a citation or warning." (citation and quotation marks omitted)). "A dog sniff, by contrast is a measure aimed at ‘detect[ing] evidence of ordinary criminal wrongdoing,’ " and therefore is not fairly characterized as part of the officer's traffic mission. Rodriguez , 135 S.Ct. at 1615 (quoting Indianapolis v. Edmond , 531 U.S. 32, 40–41, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) ). As a result, an officer may not prolong a traffic stop to conduct a dog sniff absent independent, reasonable suspicion of criminal activity. Id. at 1615–17 ; accord Evans , 786 F.3d at 786–88 (ex-felon registration check and dog sniff are "wholly unrelated" to the officer's traffic mission and therefore require independent, reasonable suspicion).
2. Analysis
Applying Rodriguez , the court examines whether the traffic stop was extended longer than was reasonably necessary to complete the traffic mission, and if so, whether the deputies had an independent, reasonable suspicion justifying the delay leading up to the dog sniff.
a) Whether the Duration of the Stop Was Extended
Cornejo conceded at hearing, and the court independently finds, that the first twelve minutes of the stop would have constituted a lawful seizure had Gunsauls then permitted Cornejo to leave. See ECF No. 76 at 12. During this time, Gunsauls retrieved Cornejo's documents, checked for warrants and reports of lost or stolen vehicles, and waited for Hughes to arrive. Vid. 9:08:52–9:21:11; Tr. 46–47, 145, 149, 182–83. These tasks are connected to the traffic mission and related safety concerns and took a reasonable amount of time. See Rodriguez , 135 S.Ct. at 1614–16 (providing examples of criminal record and outstanding warrant checks as safety precautions taken to facilitate traffic mission); cf. Pennsylvania v. Mimms , 434 U.S. 106, 109–10, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) (emphasizing "weighty" interest in officer safety during traffic stop); United States v. Williams , 419 F.3d 1029 (9th Cir.2005). However, Cornejo argues the stop was unlawfully extended when Gunsauls filled in the written warning citation and asked him questions in front of the patrol car, and when Hughes finished completing the written warning while Gunsauls conducted a K-9 sniff of the sedan. See ECF No. 76 at 10–12.
Prior to Rodriguez , in United States v. Mendez , 476 F.3d 1077 (9th Cir.2007), the Ninth Circuit held that an officer does not need independent, reasonable suspicion to support questioning unrelated to the traffic mission if the questioning does not prolong the stop. Id. at 1080–81 (questioning occurred while officer ran check on defendant's identification). Similarly, in Arizona v. Johnson , 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), the court held that "[a]n officer's inquiries into matters unrelated to the justification for the traffic stop...do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop." Id. at 333, 129 S.Ct. 781. In United States v. Turvin , 517 F.3d 1097 (9th Cir.2008), the Ninth Circuit expanded the scope of permissible questioning and held that it may be lawful for an officer to briefly pause a stop to ask a few unrelated questions if the overall detention is reasonable. Id. at 1098, 1101–04 (officer paused ticket-writing process to ask defendant about drugs and for consent to search his vehicle; total duration of stop until defendant consented to search was about fourteen minutes). The court refused to adopt a bright-line rule. Id. at 1103.
There is some tension between Turvin , which permits slight prolongations to ask unrelated questions, and Rodriguez , which requires independent, reasonable suspicion if a dog sniff adds any time to a traffic stop. Rodriguez did not distinguish between prolongations caused by dog sniffs and those caused by unrelated questioning. Rather, it grouped the two types of investigation together in its analysis:
In both [Illinois v. Caballes and Arizona v. Johnson ], we concluded that the Fourth Amendment tolerated certain unrelated investigations that did not lengthen the roadside detention. Johnson , 555 U.S. at 327–328, 129 S.Ct. 781 (questioning); Caballes , 543 U.S. at 406, 408, 125 S.Ct. 834 (dog sniff). In Caballes , however, we cautioned that a traffic stop "can become unlawful if it is prolonged beyond the time reasonably required to complete th [e] mission" of issuing a warning ticket. 543 U.S. at 407, 125 S.Ct. 834. And we repeated that admonition in Johnson : The seizure remains lawful only "so long as [unrelated] inquiries do not measurably extend the duration of the stop." 555 U.S. at 333, 129 S.Ct. 781 ; see also Muehler v. Mena , 544 U.S. 93, 101, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005) (because unrelated inquiries did not "exten[d] the time [petitioner] was detained[,]...no additional Fourth Amendment justification...was required").
135 S.Ct. at 1614–15. Although this seems to suggest unrelated questioning, like a dog sniff, must be supported by an independent, reasonable suspicion whenever it adds any time to a stop, the court need not resolve any apparent conflict between Rodriguez and Turvin here, because Gunsauls' questioning of Cornejo unreasonably extended the stop under either approach.As stated above, Gunsauls did not begin filling out the written warning citation during the ten minutes that he waited in his patrol car for the record checks and for Hughes to arrive. See Vid. 9:10:58–9:21:11. By the time he began completing the citation and asking Cornejo questions, Gunsauls already knew Cornejo did not have any outstanding warrants, the sedan was not reported lost or stolen, and Cornejo did not have any weapons on him. He had reviewed, but had chosen not to verify, Cornejo's driver's license and rental car agreement, and had learned where Cornejo said he was traveling and the purpose of his travels. After having completed these tasks, twelve minutes after the initial stop, Gunsauls spent another approximately six-and-a-half minutes asking Cornejo questions and filling out the one-page, written warning citation while Hughes stood by. Vid. 9:21:38–9:29:16. A number of Gunsauls' questions at this point were not reasonably related to the traffic mission, such as what Cornejo did for a living, how long he was in San Jose, where Toppenish is located, what kind of car he owns, whether the rental car contained any weapons or drugs, and whether he consented to a search of the rental car. Approximately twenty minutes into the stop, Gunsauls directed Hughes to "complete" the warning citation while he performed the K-9 sniff. The only remaining blank entries on the form were the location of the violation and the citing officer's name and identification number, which Hughes quickly completed, in less than one minute, Vid. 9:28:30–9:29:16. See Ex. 7; Tr. 132.
The court finds the approximately eight minutes was an unreasonably long duration for Gunsauls and Hughes to complete the simple, one-page, written warning citation. Gunsauls testified that safety concerns, such as the need to stay aware of the surroundings, typically add time to filling out a citation, Tr. 171–74, but in this case, Hughes stood by and provided back up while Gunsauls filled out most of the warning citation. Considering the totality of the record, it appears Gunsauls consciously drew out filling out the entries in the citation in order to fish for information. He then further delayed the task by handing the citation off to Hughes when there were only two entries remaining, one of which was Gunsauls' own name and identification number. The video establishes that the dog sniff added time to the stop, because it shows that after Hughes completed the citation, he retained the citation and Cornejo's documents for another minute-and-a-half while he waited for Gunsauls to finish walking his dog around the car. Vid. 9:29:16–9:30:40. Rodriguez does not authorize questioning a person or performing a K-9 sniff while purporting to fill out a ticket or citation; it held a traffic stop "become[s] unlawful if it is prolonged beyond the time reasonably required to complete th [e] mission of issuing a ticket for the violation." 135 S.Ct. at 1612 (citation and quotation marks omitted). Here, the mission of issuing a warning citation reasonably required substantially less than eight minutes under the circumstances. The fact that the deputies waited more than twenty-five minutes after the stop was initiated to check the validity of Cornejo's license in no way justifies the unrelated tasks taken in between. See Ex. 15 at 1–2; Tr. 68, 127, 163–64, 167, 180, 197, 231–35.
In Rodriguez , the Supreme Court explained, "The critical question... is not whether the dog sniff occurs before or after the officer issues a ticket,...but whether conducting the sniff ‘prolongs'—i.e., adds time to—‘the stop.’ " 135 S.Ct. at 1616 (quoting 135 S.Ct. at 1615 ) (italics in original). The Court also rejected the argument that an officer may "incremental[ly]" prolong a stop to conduct unrelated tasks so long as "the overall duration of the stop remains reasonable in relation to the duration of other traffic stops involving similar circumstances." Id. Here, the evidence shows Gunsauls' questioning on unrelated topics and calibrated delay in filling out the warning citation, as well as the subsequent K-9 sniff of the rental car, added time to the traffic stop.
b) Whether the Deputies Had an Independent, Reasonable Suspicion
Because the duration of the stop was unnecessarily extended, the seizure was unlawful unless the deputies had an independent, reasonable suspicion of criminal activity. Rodriguez , 135 S.Ct. at 1615–17.
As stated above, reasonable suspicion requires that an officer have a "particularized and objective basis" for suspecting the person has committed or is about to commit a crime. Arvizu , 534 U.S. at 273, 122 S.Ct. 744 ; Montero – Camargo , 208 F.3d at 1129. The Ninth Circuit has clarified the contours of this requirement in rejecting "profiles that are ‘likely to sweep many ordinary citizens into a generality of suspicious appearance,’ " such as ethnic appearance or the act of glancing in the rear view mirror at an approaching law enforcement vehicle. Montero – Camargo , 208 F.3d at 1129–30, 1132, 1136 (quoting United States v. Rodriguez , 976 F.2d 592, 595–96 (9th Cir.1992) ). These types of factors describe too many individuals to create a particularized suspicion. Id.
When reviewing an officer's reasonable suspicion, the court considers the totality of the circumstances. United States v. Valdes – Vega , 738 F.3d 1074, 1078 (9th Cir.2013) (en banc). "This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." Arvizu , 534 U.S. at 273, 122 S.Ct. 744 (citations and internal quotation marks omitted). "It also precludes a ‘divide-and-conquer analysis' because even though each of the suspect's ‘acts was perhaps innocent in itself...taken together, they [may] warrant[ ] further investigation.’ " Valdes – Vega , 738 F.3d at 1078 (quoting Arvizu , 534 U.S. at 274, 122 S.Ct. 744 ) (alterations in Valdes – Vega ). "In assessing whether a detention is too long in duration to be justified as an investigative stop," it is proper "to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly." United States v. Sharpe , 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).
The government identifies the following initial "warning signs" of criminal activity: (1) Cornejo was traveling on the northbound side of I-5, which is a route commonly used to transport drugs from Southern California to Oregon and Washington; (2) when Gunsauls initially approached Cornejo, he was breathing more rapidly and appeared more nervous than the average driver; and (3) Gunsauls noticed three Rock Star energy drinks, two Arizona iced tea drinks, and empty water bottles in the front passenger floor area and center cup holder, and "found it strange or suspicious that somebody would drink that much liquid in [the] six hours [it takes to travel from San Jose to the location of the stop], especially energy drinks." Tr. 33. ECF No. 77 at 8. The government contends the following indicators further raised Gunsauls' concerns as the stop progressed: (1) Cornejo continued to argue with Gunsauls about his speed, even though Gunsauls told him several times that he only intended to give Cornejo a warning; (2) Cornejo's nervousness appeared to increase over time; (3) Cornejo delayed slightly before answering where Toppenish is located; and (4) Cornejo could not explain why the rental agreement said "California only" when he intended to return the car in Washington. Id. at 9. The government argues these seven factors, taken together, gave Gunsauls an independent, reasonable suspicion of criminal activity. Id. at 9–10.
The result of a reasonable suspicion analysis "depends in part on whether the district court finds the officers' testimony concerning the relevant facts credible, and in part on whether the information [available to the officers] provided reasonable suspicion justifying the...delay." Evans , 786 F.3d at 789. Here, the court finds Gunsauls' explanations of his actions in connection with the stop are not fully consistent with the record developed before the court. As noted above, the dashboard video appears to belie Gunsauls' statements that Cornejo "was impacting other traffic on the roadway" in any meaningful way, Tr. 30–31, and that other cars were "passing [him] on the wrong side of the road," Vid. 9:09:28–9:09:39, 9:22:30–9:22:49. Moreover, Gunsauls testified he was "sixty percent certain" Cornejo was involved in drug smuggling by the time he first returned to his patrol car, Tr. 38–39, but he did not "diligently pursue[ ] a means of investigation that was likely to confirm or dispel [his] suspicions quickly," Sharpe , 470 U.S. at 686, 105 S.Ct. 1568. Although Gunsauls testified that the rental agreement appeared suspicious and not "legitimate," Tr. 45–46, he did not call Enterprise or ask dispatch to do so, see Tr. 121–22, 149; neither did he ask Cornejo about the agreement. Gunsauls testified that the empty beverage containers raised suspicions of smuggling, Tr. 33–34, 51–54, 175–77, but he never asked Cornejo about the containers. He did not conduct the K-9 sniff of the rental car until approximately twenty minutes had passed, even though Hughes had arrived at the scene eight minutes into the stop. After Gunsauls and Hughes compared notes for four minutes after Hughes arrived, Hughes could have filled out the warning citation while Gunsauls conducted the K-9 sniff.
Gunsauls' selective muting of the audio recording raises additional questions. Gunsauls testified that he turned off his microphone for "officer safety reasons," Tr. 28, and to withhold law enforcement's tactics from criminals, Tr. 164–66, 179–80. This explanation does not comport with muting the audio during the K-9 sniff or search of the sedan. Vid. 9:28:35–9:30:41. The selective muting here could have omitted Hughes' questioning unrelated to the traffic mission, sounds undermining the reliability of the K-9 alert, or information being volunteered by the defendant that dispels suspicions.
Even accepting Gunsauls' account in full, the evidence does not establish a reasonable suspicion of drug-related activity prior to Gunsauls' unrelated questioning or the K-9 sniff. Traveling on the northbound side of I-5 is the type of overbroad categorization the court rejected in Montero – Camargo , 208 F.3d at 1129, 1131–32. Similarly, although nervousness is relevant, it "carr [ies] little weight," "because many citizens become nervous during a traffic stop, even when they have nothing to hide." United States v. Evans , 122 F.Supp.3d 1027, 1035 (D.Nev.2015) (citation omitted) (finding signs of nervousness and willingness of the defendant to change his story insufficient to establish reasonable suspicion). Although Cornejo shifted his weight and bit his lip while conversing with Gunsauls in front of his patrol car, the video does not show that Cornejo's nervousness substantially increased over the course of the stop. See, e.g. , Vid. 9:23:34, 9:24:23–9:24:26, 9:26:35; see Tr. 53–54; Rep. 3. After being instructed to exit his car, approximately thirteen minutes after the initial stop, Cornejo did twice make comments that questioned the basis for the stop and asked why Gunsauls "picked" his car. Vid. 9:22:08–9:22:39, 9:25:20–9:26:31. However, his tone was conversational, and his behavior under the circumstances did not provide an objective basis for suspecting drug smuggling, as opposed to genuine frustration at being pulled over and a desire to explain his viewpoint. Cornejo's nervousness alone in this case is insufficient to justify continued detention. See United States v. Chavez–Valenzuela , 268 F.3d 719, 726 (9th Cir.2001), amended , 279 F.3d 1062 (9th Cir.2002), abrogated on other grounds by Muehler v. Mena , 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005).
Other courts have given varying weight to the presence of energy drinks or fast food wrappers, which are consistent with innocent travel but could also indicate long-distance, hurried travel, depending on the presence of other circumstances that can support reasonable suspicion. Compare United States v. Beck , 140 F.3d 1129, 1136–40 (8th Cir.1998) (no reasonable suspicion of drug smuggling where defendant was driving a rental car that had been rented by an absent third party, defendant was stopped in Arkansas but traveling from California, there was fast food trash on the passenger side floorboard, and no visible luggage, defendant appeared nervous, and the officer did not believe defendant's reason for his travels), United States v. Wendfeldt , 58 F.Supp.3d 1124, 1133–35 (D.Nev.2014) (no reasonable suspicion where officer observed "uncontrolled shaking" by defendant; trash, clothing, and miscellaneous items were scattered throughout the car; defendant provided vague and indefinite travel plans; and defendant disclosed prior DUI conviction but not prior misdemeanor drug charge), and United States v. Mora-Morales , 807 F.Supp.2d 1017, 1023 (D.Kan.2011) (no reasonable suspicion of drug smuggling where one defendant appeared nervous, there were two air fresheners and an unopened package of energy drinks in the car, defendants wore new clothes, the vehicle registration was recent, and officer knew Washington is a source state for drugs), with United States v. Bradford , 423 F.3d 1149, 1157 (10th Cir.2005) (noting that food wrappers strewn about a car do not by themselves indicate drug smuggling, but finding reasonable suspicion based on totality of circumstances), and United States v. Bowman , No. 15–101, 2016 WL 3621283, at *8 (W.D.N.C. May 31, 2016), report and recommendation adopted , 2016 WL 3617963 (July 5, 2016) (large suitcase with loose clothes, energy drink, food, and food wrappers were sufficient to suspect defendant was lying in light of his statement that he was just picking up passenger from his girlfriend's house). As noted above, the Ninth Circuit has recognized that innocent factors, taken together, may warrant further investigation. Valdes – Vega , 738 F.3d at 1078.
Here, the empty beverage containers and handwritten rental agreement are wholly consistent with innocent travel, and under the totality of the circumstances, do not raise reasonable suspicion of criminal activity. See, e.g. , Beck , 140 F.3d at 1138 ("[T]he mere presence of fast-food wrappers in the Buick is entirely consistent with innocent travel such that, in the absence of contradictory information, it cannot reasonably be said to give rise to suspicion of criminal activity." (citations omitted)). The rental agreement showed that Cornejo had rented the vehicle the previous morning, twenty-two hours before the stop, Ex. 5, and Gunsauls believed San Jose was approximately six hours' driving time from the traffic stop location, Tr. 33. Gunsauls did not eliminate the possibility others had been in the sedan and had contributed to the collection of bottles. Cornejo himself may have been thirsty or tired since renting the car.
With respect to the rental agreement, an Enterprise employee testified that the company's standard operating procedure when the computer system goes down is to handwrite the information onto the rental contract. Tr. 214, 216–17. When Gunsauls ran the license plate on the rental car, there were no reports it was lost or stolen, consistent with this innocent explanation. Tr. 47, 147, 149, 229.
Any gaps or inconsistencies regarding Cornejo's travel plans and the phrase "CA only" on the rental agreement were not so significant as to arouse genuine suspicion. See United States v. Simpson , 609 F.3d 1140, 1150 (10th Cir.2010) ("[B]y themselves, these fairly minor evasions and inconsistencies would not constitute reasonable suspicion...."). "Mere ‘uneasy feelings' and inconsistent stories...do not constitute articulable facts that support a reasonable suspicion of drug trafficking." United States v. Estrada , 459 F.3d 627, 631 (5th Cir.2006). Cornejo provided a Washington driver's license and said he was driving home to Washington after visiting his parents in San Jose for a few days. Vid. 9:10:10–9:10:35. He explained that he decided to drive a rental car back to Washington because his own car was not in good condition. Vid. 9:24:30–9:25:12; Rep. 3. This story is plausible. In the video of the exchange, Cornejo's slight delay in describing where the city of Toppenish is located objectively did not support a reasonable suspicion of drug smuggling. Vid. 9:23:44–9:24:06. In the Investigative Report, Gunsauls wrote he "believed Jairo was lying to [him] and his story was not making sense," Rep. 3, but mere hunches or "uneasy feelings" are not enough to support a reasonable suspicion of drug trafficking.
In sum, Cornejo appeared somewhat nervous, had empty beverage containers in his car, had a pre-printed rental agreement form with handwritten entries, and did not fully explain the "CA only" note to Gunsauls' satisfaction. He provided a valid driver's license, had no outstanding warrants, did not have any weapons on him, did not engage in any threatening behavior, and his rental car was not reported lost or stolen. The problem is not just that Gunsauls relied on an overly broad profile in forming his suspicion, but that he also did not promptly investigate to confirm or dispel his suspicions. Gunsauls was "sixty percent" certain Cornejo was smuggling drugs when he first returned to his patrol car, Tr. 38–40, but he did not investigate the validity of the rental agreement, inquire about the empty beverage containers, or conduct the K-9 sniff immediately upon Hughes' arrival. Tr. 38–40. Considering the factors identified by the government in totality, and having carefully reviewed Gunsauls' narrative and the dashboard video, the court concludes the prolongations were not justified. While it would be tempting when officers' conduct uncovers contraband, such as a substantial quantity of drugs, to allow the end to justify the means, the court "must resist such temptation." United States v. Richardson , 385 F.3d 625, 631 (6th Cir.2004) (affirming suppression of handgun seized after traffic stop); see also Weeks , 232 U.S. at 392–93, 34 S.Ct. 341. The deputies in this case unnecessarily prolonged the stop to ask unrelated questions and conduct a K-9 sniff of the sedan without the constitutionally required independent, reasonable suspicion of criminal activity.
B. Good-Faith Exception to Exclusionary Rule
Having found the deputies violated Cornejo's Fourth Amendment rights, the court next determines whether suppressing the evidence seized as a result is the appropriate remedy. See Davis , 564 U.S. at 243–44, 131 S.Ct. 2419. At the end of the government's post-hearing brief, it briefly argues for application of the good-faith exception to the exclusionary rule, citing Illinois v. Caballes , 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). ECF No. 77 at 10.
In Caballes , one officer conducted a K-9 sniff of the defendant's vehicle during a legitimate traffic stop while another officer wrote out a warning ticket. 543 U.S. at 406, 125 S.Ct. 834. The entire stop lasted less than ten minutes. Id. The Supreme Court first explained that "[a] seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission," id. at 407, 125 S.Ct. 834, but "accept[ed] the state court's conclusion that the duration of the stop...was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop," id. at 408, 125 S.Ct. 834. The Court next held that the use of the drug-detection K-9 did not in itself violate the defendant's Fourth Amendment rights or convert the otherwise lawful traffic stop into an unlawful seizure. Id. at 408–10, 125 S.Ct. 834. The Court reasoned that the dog sniff was not a "search" that implicated the defendant's legitimate privacy interests under the Fourth Amendment, because a dog sniff of the exterior of a car "does not expose noncontraband items that otherwise would remain hidden from public view." Id. at 409, 125 S.Ct. 834.
But the good-faith exception does not apply here, because Caballes did not permit, much less "specifically authorize," the conduct of Gunsauls and Hughes. See Thomas , 726 F.3d at 1095 ; see also Lara , 815 F.3d at 613. Whereas the duration of the traffic stop in Caballes was not extended beyond the time reasonably required to complete that traffic mission, the deputies' questioning of Cornejo and the K-9 sniff here did unnecessarily prolong the stop. Caballes limited its holding to dog sniffs conducted during lawful seizures; it did not authorize dog sniffs or other unrelated tasks after the time justified by a lawful seizure. See Caballes , 543 U.S. at 407, 125 S.Ct. 834. The Court in Caballes specifically noted, "The question on which we granted certiorari is narrow: ‘Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.’ " Id. (internal citation omitted). It emphasized that in the case "the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation." Id. at 409, 125 S.Ct. 834. It drove the point home in saying, "A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." Id. at 410, 125 S.Ct. 834.
This case also is distinguishable from the decision on remand in United States v. Rodriguez , supra , in which the Eighth Circuit applied the good-faith exception. 799 F.3d 1222 (8th Cir.2015), cert. denied , ––– U.S. ––––, 136 S.Ct. 1514, 194 L.Ed.2d 605 (2016). On remand, the Eighth Circuit held the officers in that case had reasonably relied on binding Circuit precedent, which "provided that a brief delay to employ a drug dog did not constitute an unconstitutional seizure, as long as the traffic stop was not unreasonably prolonged." Id. at 1223. The court reasoned, "The magistrate judge, the district court, and this court had all determined that the seven– or eight-minute delay...constituted a de minimis intrusion on Rodriguez's personal liberty and that Rodriguez's seizure was lawful under our then-binding precedent," which "repeatedly [had] upheld dog sniffs that were conducted minutes after the traffic stop concluded." Id. at 1223–24 (citation omitted). Thus, "the circumstances of Rodriguez's seizure fell squarely within [the Circuit's] case law." Id. at 1224. Here, by contrast, the government identifies no similar Ninth Circuit case law authorizing de minimis prolongations to traffic stops, and the court has found none. As explained above, Caballes does not authorize a de minimis prolongation to conduct a dog sniff. See 543 U.S. at 407, 125 S.Ct. 834. The Ninth Circuit in Turvin did undertake a somewhat similar analysis to the Eighth Circuit's application of a de minimis exception. See 517 F.3d at 1103–04 (concluding officers did not need independent, reasonable suspicion to briefly pause the stop to ask questions unrelated to the traffic purpose because the questions "did not unreasonably prolong the duration of the stop"). However, the Turvin court stated it "d[id] not pass upon [the Eighth Circuit's] adoption of a de minimis exception justifying brief questions." Id. at 1102. Moreover, the facts in Turvin are distinguishable from this case, and the government here did not cite Turvin or any other Ninth Circuit precedent. The government has not identified any binding, pre-Rodriguez precedent that specifically authorizes the conduct of Gunsauls and Hughes during the traffic stop here.
The good-faith exception announced in Davis does not apply to the circumstances of this case. Suppressing the challenged evidence serves the exclusionary rule's deterrent purpose, because it will have the effect of discouraging officers from delaying a traffic stop to fish for evidence of criminal activity based on a hunch or a broadly generalized profile. See Brown v. Illinois , 422 U.S. 590, 605, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (excluding evidence where detectives' actions were purposefully calculated to procure evidence). Put another way, exclusion in a case such as this will give officers an "incentive to err on the side of constitutional behavior," Johnson , 457 U.S. at 561, 102 S.Ct. 2579. Because the deterrent value of excluding the evidence outweighs the social costs of suppression, suppression is the appropriate remedy for the violation of Cornejo's Fourth Amendment rights.
V. CONCLUSION
For the foregoing reasons, defendant's motion to suppress physical evidence seized and statements made on December 13, 2014 following a traffic stop is GRANTED IN PART, as follows. The court suppresses the following evidence:
(1) three bundles of suspected methamphetamine, weighing 3,028.6 grams (booked as D100);
(2) three bundles of suspected heroine, weighing 2,218 grams (booked as D101);
(3) $5,000 bulk U.S. currency (booked as C100);
(4) two LG cell phones (booked as M100);
(5) the Enterprise rental agreement and receipts (booked as M101);
(6) the GPS unit from the sedan; and
(7) any other evidence recovered from the sedan.
See Wong Sun , 371 U.S. at 484, 83 S.Ct. 407 ; Shetler , 665 F.3d at 1157 (the exclusionary rule applies to statements and physical evidence obtained as a result of an illegal search). The court also excludes any statements made by Cornejo after the stop was unlawfully prolonged, when Gunsauls began questioning Cornejo and filling out the written warning citation approximately thirteen minutes after the initial stop, Vid. 9:22:04. The court DENIES the motion with respect to any statements made by Cornejo before the unlawful prolongation.
IT IS SO ORDERED.