Opinion
No. 00-40024-03-SAC.
July 17, 2001.
MEMORANDUM AND ORDER
The case comes before the court on the defendant Timothy Cline's motion to suppress evidence derived from a traffic stop on December 15, 1999, in Cherokee County, Kansas. (Dk. 536). The parties presented their positions in memoranda filed with the court and in oral arguments and evidence submitted in a hearing conducted on May 22, 2001. After reviewing all matters offered for consideration and researching the law relevant to these issues, the court files the following as its ruling on this motion to suppress.
FACTS
In the latter half of 1999, state and federal agents were investigating several individuals for their possible involvement in the production and trafficking of methamphetamine in southeast Kansas. Preliminary information identified Johnny Shane Wright as a methamphetamine manufacturer and Timothy Cline as a customer and a supplier of pseudoephedrine for Wright. On the evening of December 14, 1999, agents monitoring a wiretap on Wright's home intercepted a telephone conversation between Cline and Wright. Cline told Wright that he would be visiting Wright's residence sometime between noon and two in the afternoon of December 15, 1999.
Investigating agents requested help from the Kansas Highway Patrol to conduct a traffic stop of Cline's truck. On the morning of December 15, 1999, Kansas Highway Patrol Trooper Donald Scott Grassl was debriefed about Timothy Cline and the events anticipated for later in the day. Grassl was instructed that after undercover officers located Cline's truck then Grassl would conduct a traffic stop and attempt to obtain Cline's consent to search the truck.
Surveillance officers observed Cline driving his black Chevrolet pickup arrive at Biker's Dream store in Baxter Springs, Kansas, on December 15, 1999, around 1:00 p.m. Cline then left and stopped at a video store in Baxter Springs. Officers maintained their surveillance of Cline as he went north through Baxter Springs and then drove out of the city in the northbound lane of U.S. Highway 400 in the direction of Galena, Kansas, where Johnny Shane Wright lived.
Trooper Grassl, accompanied by Special Agent John Aldine, had been patrolling the area for approximately an hour and a half when they received a call that Cline's pickup had been spotted headed north on U.S. Highway 400. Separated by two or three other cars, Trooper Grassl trailed Cline's pickup heading north and followed when it turned right on K-66. The cars between them turned off near Riverton leaving Trooper Grassl's patrol car directly behind Cline's pickup as it traveled east on K-66. Trooper Grassl maintained a normal following distance of two to four seconds.
Just east of Riverton near the bridge that crosses the Spring River, Trooper Grassl observed Cline's truck drift across the shoulder line by one to two feet and then return to the proper traffic lane. When Cline's pickup crossed the shoulder line as it did, Trooper Grassl was immediately concerned it would strike the bridge railing that was near the shoulder lane. Trooper Grassl, however, did not stop Cline for this traffic violation until more than a mile later when he turned south at the intersection with 90th Avenue. Trooper Grassl had received instructions from Agent Aldine not to stop Cline unless and until he turned south on 90th Avenue in the direction of Wright's residence.
Once Cline turned south on 90th Avenue, Trooper Grassl activated his emergency lights and the pickup pulled over. As Trooper Grassl approached on foot, Cline started to exit the pickup but Grassl asked him to remain in the vehicle. Trooper Grassl informed Cline that he had been stopped for drifting onto the shoulder near the bridge when Grassl was getting ready to pass him and that Grassl wanted to make sure that Cline was not getting sleepy or tired. Cline responded, "no," about being tired or sleepy and that he was "beginning to wonder" about his pickup. Grassl promptly asked for a driver's license and followed up with questions as to where Cline was headed, whether it had snowed there yesterday, and whether the address on his identification card was still correct. Cline vaguely responded about where he was going and said he had missed his earlier turn. Grassl requested Cline's proof of insurance and truck registration. While Cline was getting the proof of insurance, Grassl asked for the year of the truck and Cline's opinion on its gas mileage performance. At this point, Cline offered that the pickup did not handle well in wind. After Grassl looked over the proof of insurance and returned it to Cline, Grassl took the identification card, which Cline said also served as his driver's license, back to his patrol car to run the license check.
The videotape recording shows the defendant Cline getting out of his truck, looking under its front end, and bumping it with his hip while Trooper Grassl was in the patrol car. The audio portion of the videotape captures Trooper Grassl reporting to Agent Aldine that he saw no boxes in the truck and Agent Aldine communicating this information to other agents by cell phone. They discussed their information from surveillance and other sources and then agreed that Grassl should still ask for Cline's consent to search the truck and that the pills probably would be in a brown satchel rather than boxes. After a little more than three minutes of these discussions between Agent Aldine and others, Trooper Grassl radios in the number from the defendant's identification card for a license check. Almost two minutes transpired when some unclear radio transmissions from dispatch come back about Quapaw, Oklahoma. Trooper Grassl testified these transmissions were the results of the license check. Grassl then briefly converses again with Trooper Leroy Ediger about the number of the mile marker near the Spring River bridge. In response to Trooper Ediger's inquiry about the traffic violation involved, Grassl is heard on the videotape saying, "I think he saw me back here because he drifted off clear off on the shoulder, I thought he was going to hit the bridge for second."
Approximately six and one-half minutes after heading to his patrol car for the license check, Trooper Grassl walks back to Cline's pickup and first apologizes for the delay. He hands over the license and the written warning for the lane violation and gives a brief explanation of the warning. Cline notes that he saw some grease leaking from the rod end of the ball joint. Trooper Grassl tells Cline that he is "free to go" and then inquires "could I ask you another couple questions before you go?" The videotape shows the brake lights on the truck lighting up as Grassl sought Cline's permission. The traffic stop lasted just under eight and one-half minutes when Grassl asked for permission.
Cline responded affirmatively to Grassl's request to ask more questions. Trooper Grassl inquired whether Cline had been drinking and whether he had alcohol or anything illegal in the car. Cline answered "no" to these inquiries. Grassl then asked Cline: "Would you have a problem if I took a quick look through your vehicle for anything illegal." Cline answered, "no." Grassl then requested Cline to exit the truck and stand near his patrol car while he searched the truck.
On the passenger side of the cab, Grassl lifted up a jacket and found a brown paper sack on the floor board. Inside the sack, there were two yellow and blue one-gallon plastic ziplock bags each containing a large number of white pills. After searching the truck for around five minutes, Trooper Grassl placed the brown paper sack and ziplock bags on the truck's tailgate. When Grassl asked about the purpose of the pills in the sack, Cline said they bottled and sold them to truck drivers who use them to stay awake. Cline referred to the pills as "pseudo." Explaining that the number of pills were more than what one person normally could use and that the pills were not packaged in bottles, Trooper Grassl told Cline the pills would be tested to confirm they were "just pseudo." Trooper Grassl took Cline's address and phone numbers and had Cline sign an evidence custody receipt before taking possession of the pills. Grassl gave a copy of the receipt to Cline who said he ad no problem with the pills being taken for testing. Cline did ask how long the testing would take and who he should contact about getting the pills returned to him. Following Grassl's answers to these questions, Cline left in his truck. The next day Cline telephoned Trooper Grassl asking about the status of the pills. Grassl explained the testing could take some time and he would be in contact.
VALIDITY OF THE TRAFFIC STOP
Argument
Considering the single incident of drifting and the brisk wind, the defendant contends Trooper Grassl lacked probable cause to believe a traffic law had been violated when he pulled over Cline's pickup. The defendant characterizes the claimed traffic violation to be a mere "pretext for conducting an investigation for which the officer lacked probable cause or reasonable grounds to stop the vehicle and seize its occupants." (Dk. 537, p. 5). The defendant emphasizes the evidence showing that the traffic stop was planned and Grassl's opinion testimony that "it's hard to drive without committing a violation." The defendant further argues the evidence shows that Trooper Grassl's presence or his operation of the patrol car caused or contributed to any purported traffic violation. Citing comments that Grassl made to Ediger as recorded on videotape, the defendant argues that he was either distracted or startled upon seeing the Trooper's car and then drifted onto the shoulder. The defendant cites in support of his arguments: United States v. Gregory, 79 F.3d 973 (10th Cir. 1996), and United States v. Ochoa, 4 F. Supp.2d 1007 (Kan. 1998).Governing Law
The Fourth Amendment protects individuals from unreasonable searches and seizures. See U.S. Const. amend IV. An unconstitutional seizure may render an otherwise constitutional search invalid under the Fourth Amendment if the search resulted from the illegal seizure or detention. United States v. Miller, 84 F.3d 1244, 1250 (10th Cir.), cert. denied, 519 U.S. 985 (1996), overruled on other grounds, United States v. Holland, 116 F.3d 1353, 1357-59 (10th Cir.), cert. denied, 522 U.S. 902 (1997), overruled in part on other grounds, Bously v. United States, 523 U.S. 614 (1998). As established by Supreme Court precedent, there are three general types of police-citizen encounters: "(1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests, [which are] the most intrusive . . . and [are] reasonable only if supported by probable cause." United States v. Davis, 94 F.3d 1465, 1467-68 (10th Cir. 1996) (citations omitted).
A routine traffic stop is a seizure under the Fourth Amendment. United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000). Analogous to investigative detentions, routine traffic stops are analyzed under the principles stated in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). The reasonableness of an investigative detention is a dual inquiry: (1) "whether the officer's action was justified at its inception," and (2) whether the officer's action "was reasonably related in scope to the circumstances that first justified the interference." United States v. Burch, 153 F.3d 1140, 1141 (10th Cir. 1998) (quotation omitted); see Terry, 392 U.S. at 20.
For purposes of the first prong, "a traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring." United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc), cert. denied, 518 U.S. 1007 (1996); accord Whren v. United States, 517 U.S. 806, 818 (1996). The officer's subjective motives for stopping the vehicle are irrelevant under Fourth Amendment analysis. See Whren, 517 U.S. at 813; Botero-Ospina, 71 F.3d at 787. The "sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated `any one of the multitude of applicable traffic and equipment regulations' of the jurisdiction." Botero-Ospina, 71 F.3d at 787.
Shortly after the en banc decision in Botero-Ospina, a Tenth Circuit panel in United States v. Gregory, 79 F.3d 973 (10th Cir. 1996), held that a single, isolated instance of veering into the emergency lane did not violate Utah law and did not create probable cause to make a traffic stop. The panel discussed that their interpretation of the Utah statute was consistent with Utah case law. The panel also noted that the motorist was driving a U-haul truck on a windy road through mountainous terrain under windy weather conditions. "These facts lead us to conclude that the single occurrence of moving to the right shoulder of the roadway which was observed by Officer Barney could not constitute a violation of Utah law and therefore does not warrant the invasion of Fourth Amendment protection." 79 F.3d at 978.
On several subsequent occasions, the Tenth Circuit has had no difficulty distinguishing Gregory or limiting the decision to its unique facts. In United States v. Dunn, 133 F.3d 933, 1998 WL 8227 (10th Cir. Jan. 12, 1998) (Table), the panel was presented with the scenario where a motorist in Kansas was stopped after swerving once over the right white line marking the edge of the road. The panel upheld the validity of the stop and distinguished Gregory in the following respects:
Contrary to defendant's assertions, however, Gregory did not establish a bright-line rule that a single instance of swerving could never constitute a violation of the statute, but rather held that under the particular circumstances of that case, the motorist's single swerve did not provide sufficient justification for a stop. In Gregory, we conducted a fact-specific inquiry and emphasized that, in addition to windy conditions, "[t]he road was winding, the terrain mountainous." Id. In contrast, the section of 1-70 along which Dunn was traveling was straight with a slight grade, not winding and mountainous. Moreover, although we did not specifically rely on this factor in deciding Gregory, we note that the defendant in Gregory was driving a U-Haul truck, a vehicle that is more difficult to control than the sedan Dunn was driving. Thus, although Gregory and the present case involve very similar statutes, the facts of the two cases are distinguishable. In light of the circumstances present in this case, we find that Trooper Gassman had probable cause to believe defendant had committed a violation of K.S.A. § 8-1522.
133 F.3d 933, 1998 WL 8227 at *2 (footnote omitted). In a later case again involving K.S.A. § 8-1522 the Tenth Circuit emphasized the facts unique in Gregory and created a fact-specific analysis for this traffic statute:
This statue provides in relevant part that "[w]henever any roadway has been divided into two (2) or more clearly marked lanes for traffic, . . . [a] vehicle shall be driven as nearly as practicable entirely within a single lane."
We agree that under the language of the Kansas statute, when an officer merely observes someone drive a vehicle outside the marked lane, he does not automatically have probable cause to stop that person for a traffic violation. The use of the phrase "as nearly as practicable" in the statute precludes such absolute standards, and requires a fact-specific inquiry to assess whether an officer has probable cause to believe a violation has occurred. . . . However, decisions like Gregory do not establish an absolute standard or bright-line rule regarding what conduct constitutes a violation of statutes like Kan. Stat. Ann. § 8-1522, but instead highlight the need to analyze objectively all the surrounding facts and circumstance to determine whether the officer had the probable cause necessary to justify the stop.United States v. Ozbirn, 189 F.3d 1194, 1198 (10th Cir. 1999) (Upheld probable cause when the motor home drifted twice "onto the shoulder within a quarter mile under optimal road, weather and traffic conditions."); see, e.g., United States v. de la Fuente-Ramos, 242 F.3d 391, 2000 WL 1717186 (10th Cir. Nov. 16, 2000) (Table) (Upheld probable cause when van weaved more than once and distinguished Gregory as involving only one weaving episode under "road and weather conditions that could have caused even an unimpaired motorist to weave."), cert. denied, 121 S.Ct. 1391 (U.S. Mar. 19, 2001); United States v. Rodriguez, 215 F.3d 1338, 2000 WL 639581 (10th Cir. May 18, 2000) (Upheld probable cause where car swerved onto shoulder twice under windy conditions and concluded "that the windy weather conditions alone in this case do not distinguish it from Ozbirn.").
Courts have recognized that a circumstance relevant to this fact-specific inquiry is whether the officer's actions contributed to or caused the defendant to drive outside the lane. In United States v. Ochoa, 4 F. Supp.2d 1007 (Kan. 1998), the motorist drifted onto the shoulder a single time under the following circumstances:
When Ochoa briefly drifted onto the shoulder, another vehicle was following her too closely with a patrol car maintaining a position directly beside it. A reasonable driver might have been distracted by the commotion and looked to see what was going on, briefly drifting partially onto the shoulder. In fact, in view of Trooper Rule's testimony which reflects a clear intent to find some reason to pull over both cars, the court must consider the impact of the officers positioning their vehicle beside the Toyota, which may have startled Ochoa into crossing onto the shoulder or committing some other minor traffic violation. The court finds under the facts of this case that Ochoa's single crossing onto the shoulder was not a violation of Kansas law.4 F. Supp.2d at 1012. In an accompanying footnote, Judge Marten explained the ruling was not based on any pretextual stop analysis but on the finding that the "troopers caused or contributed to causing the drift, which, under the circumstances, does not constitute a violation." 4 F. Supp.2d at 1012 n. 4. The Tenth Circuit in Ozbirn discussed Ochoa but found no evidence that the trooper in Ozbirn had contributed to causing the lane violation. 189 F.3d at 1199; cf. United States v. Rodriguez, 215 F.3d 1338, 2000 WL 639581, at *4 (Distinguished Ochoa as the officer was standing on the far right shoulder and an empty lane separated the motorist and the officer when the motorist drifted onto the left shoulder).
Analysis
The particular facts and circumstances of this case establish that Trooper Grassl had probable cause to stop Cline's truck for an observed violation of K.S.A. § 8-1522, which requires a vehicle to be driven "as nearly as practicable entirely within a single lane." The facts here are more analogous to those in Ozbirn than Gregory. Trooper Grassl testified there was a "brisk" wind but that the wind was not strong enough to have caused Cline's pickup to swerve when it did. Trooper Grassl further opined that the road conditions did not cause the swerve. As captured on the videotape, Cline never disputed or even questioned during the traffic stop that his pickup had crossed over the shoulder line near the bridge, but he did mention mechanical problems with the truck and the wind as possible causes. The videotape does not contradict Trooper Grassl's testimony that the wind was not strong enough to have caused a pickup to swerve such a distance, twelve to twenty-four inches onto the shoulder, that it nearly struck the bridge railing.
By this discussion, the court is not saying that the government must prove that a traffic violation actually occurred. Rather, a traffic stop is reasonable under the Fourth Amendment so long as the officer making the stop has a "reasonable, articulable suspicion" that a traffic violation has occurred or was occurring. United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). Despite the defendant's zealous efforts at attacking Grassl's credibility, the court believes the trooper's testimony as to having probable cause that Cline violated K.S.A. § 8-1522.
It is irrelevant under the Fourth Amendment that Trooper Grassl had other subjective reasons for stopping Cline. Botero-Ospina, 71 F.3d at 787. The court's "sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated `any one of the multitude of applicable traffic and equipment regulations' of the jurisdiction." Id. (quoting Delaware v. Prouse, 440 U.S. 648, 661 (1979)). Though likely true that it is difficult to operate a vehicle for any serious length of time without committing a traffic violation, this statement carries no relevance or significance in deciding the lawfulness of the traffic stop. Of course, an officer may not cause or contribute to causing the traffic violation. See United States v. Ozbirn, 189 F.3d at 1198-99. There is no convincing evidence that this occurred here. While on the videotape Trooper Grassl is heard telling Cline that he was preparing to pass when he saw Cline swerve, the testimony of Grassl and Agent Aldine is that the patrol car never started to pass the pickup and always maintained a proper following distance. Cline is not heard giving any excuse to Trooper Grassl that he swerved in response to the patrol car. Nor does the court have any basis for saying that a reasonable driver would be distracted by the mere presence of a patrol car operated in a normal manner as to drift one to two feet off the road and nearly strike a bridge railing. Cf. United States v. Ochoa, 4 F. Supp.2d at 1012. Thus, Trooper Grassl's traffic stop of Cline was valid and justified at its inception.
VALIDITY OF THE DETENTION
Argument
We move to the second prong and the defendant's complaint that Trooper Grass's additional questioning of him regarding his travel plans were designed to elicit incriminating information and exceeded the permissible scope of the traffic stop. The defendant argues the recent decision of United States v. Holt, 229 F.3d 931 (10th Cir. 2000), supports his argument. The defendant further argues that the traffic stop was lengthened by officers' activities unrelated to the traffic stop and related exclusively to the drug investigation.Governing Law
The second prong of the Terry inquiry is "whether the officer's action `was reasonably related in scope to the circumstances which justified the interference in the first place.'" United States v. Bustillos-Munoz, 235 F.3d 505, 512 (10th Cir. 2000) (quoting Botero-Ospina, 71 F.3d at 786), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Mar. 15, 2001) (No. 00-10381). "Generally, an investigative detention must `last no longer than is necessary to effectuate the purpose of the stop.'" United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). It must be temporary, and its scope must be carefully tailored to its underlying justification. United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir. 1997), cert. denied, 523 U.S. 1035 (1998); United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997). During a traffic stop, an officer "may request a driver's license and vehicle registration, run a computer check, and issue a citation." United States v. Hunnicutt, 135 F.3d at 1349. The officer may also ask about "travel plans . . . and the ownership of the car." United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir. 1989); see, e.g., United States v. de la Fuente-Ramos, 242 F.3d 391, 2000 WL 1717186 at *6 (10th Cir. Nov. 16, 2000) (Table); United States v. Rodriguez, 215 F.3d 1338, 2000 WL 639581 at *5 (10th Cir. May 18, 2000) (Table). Upon issuing the citation or warning and determining the validity of the driver's license and right to operate the vehicle, the officer usually must allow the driver to proceed without further delay or additional questioning. United States v. Patten, 183 F.3d at 1193; United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997).
A longer detention for additional questioning is permissible under two circumstances: (1) the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring; or (2) the initial detention changes to a consensual encounter. United States v. Hunnicutt, 135 F.3d at 1349. "[I]f the officer retains the driver's license, he or she must have reasonable and articulable suspicion to question the driver about drugs or weapons." United States v. Turner, 928 F.2d 956, 959 (10th Cir.), cert. denied, 502 U.S. 881 (1991). If, however, the officer continues to question the driver in the absence of either of these two circumstances then "any evidence derived from that questioning (or a resulting search) is impermissibly tainted in Fourth Amendment terms." United States v. Elliott, 107 F.3d 810, 813 (10th Cir. 1997) (internal quotations and citation omitted).
Analysis
The defendant takes issue with Trooper Grassl's questions about his travel plans and argues that the Tenth Circuit's recent decision in United States v. Holt, 229 F.3d 931 (10th Cir. 2000), holds that such questions exceed the proper scope of a routine traffic stop. The circumstances of this case, however, show that the additional questions concerning travel plans are not improper. An officer conducting a traffic stop may ask preliminary questions regarding travel plans "as a matter of course without exceeding the proper scope of a traffic stop." United States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir. 1996) (citing United States v. Gonzalez-Lerma, 14 F.3d 1479, 1484 (10th Cir.), cert. denied, U.S. (1994); see also United States v. De La Fuente-Ramos, 242 F.3d 391, 2000 WL 1717186 at *3 (10th Cir. Nov. 16, 2000) (Table); United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000) ("[Q]uestions about travel plans are routine and may be asked as a matter of course without exceeding the proper scope of a traffic stop." (quotation and citation omitted)]; United States v. McSwain, 29 F.3d 558, 561 (10th Cir. 1994) (routine questions about "identity and travel plans" are not improper).
"The court does not read Holt as intended to overrule the line of Tenth Circuit precedent that allows preliminary questions concerning identity and travel plans." United States v. Arreola-Delgado, 137 F. Supp.2d 1240, 1247 (Kan. 2001). The panel in Holt recognized the line of precedent permitting such routine questions and then distinguished its case as involving questions about weapons or contraband "which would require the detainee to give an incriminatory answer or which would directly lead to a search of the detainee's vehicle." 229 F.3d at 937; see United States v. Ramstad, No. 98-40085-01-DES, 2000 WL 1838297, at *5 (Kan. Dec. 12, 2000). The final word on Holt has yet to be heard, as the Tenth Circuit en banc granted rehearing of it on December 1, 2000. United States v. Bustillos-Munoz, 235 F.3d 505, 514 n. 3 (10th Cir. 2000). Rather than overrule circuit precedent, something it could not do, the panel in Holt simply "expressed doubt over the constitutionality of this practice." United States v. Williams, ___ F.3d ___, 2001 WL 359490, at *4 n. 3 (10th Cir. Apr. 11, 2001). Until the Supreme Court or the circuit sitting en banc overrules this established line of case law allowing such questions, this court must follow the controlling Tenth Circuit precedent.
Trooper Grassl's routine questions to the defendant about his travel plans did not exceed the permissible scope of the lawful traffic stop. That the defendant's answer to this routine question would have relevance to an ongoing drug investigation does not make the question any less routine or proper for a traffic stop. It is the objective propriety of the question, not the subjective intent of the questioning officer, that controls. United States v. Foley, 206 F.3d 802, 805 (8th Cir. 2000). For that matter, this question did not require Cline to give a response that was inherently incriminatory or that would directly lead to a search of his pickup. The court rejects the defendant's argument that his detention exceeded its lawful scope because of the travel plan questions.
The defendant's other challenge goes to the duration of the traffic stop. Of the approximately six and one-half minutes that elapsed between Trooper Grassl walking back to his patrol car for the license check and then returning to Cline's pickup with the license and warning, Grassl spent a little more than the first three minutes sharing information about what he had not seen in the pickup and listening to other officers discuss whether he should still seek consent to search for the pills. During the remaining time, Grassl ran the license check and prepared the warning citation. The defendant maintains the initial three-plus-minute period constitutes a significant delay that is not reasonably related to a legitimate traffic stop.
"`[I]n assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation.'" United States v. Sharpe, 470 U.S. 675, 685 (1985) (quoting United States v. Place, 462 U.S. 696, 709 (1983)). Like investigative detentions, traffic stops are to be temporary or brief. See id. at 684-85. In considering this factor, the Supreme Court has "emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes." Sharpe, 470 U.S. at 685 (citations omitted). The Supreme Court summarized the relevant principles in this way:
In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. . . . A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. . . . A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But the fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, by itself, render the search unreasonable. . . . The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.Sharpe, 470 U.S. at 686-87 (quotations and citations omitted).
In light of the circumstances facing him, Trooper Grassl pursued his traffic stop and investigation in a diligent and reasonable manner. That Grassl spent several minutes of a traffic stop lasting just over eight minutes on matters unrelated to the traffic violation is not unreasonable. Standards of diligence and reasonableness do not warrant a more scrutinizing look at Grassl's actions. The traffic stop here was brief and took no longer than most traffic stops. A diligent trooper necessarily would be expected to communicate with fellow officers on matters reasonably related to his law enforcement work but maybe not specifically related to the traffic violation. For these reasons, the court finds that the brief delay here was neither unnecessary nor unreasonable.
The reasons behind this three minute delay further support a finding of reasonableness. In their investigation of Johnny Shane Wright as a methamphetamine manufacturer, officers had secured a wiretap and intercepted communications between Wright and Cline. On the evening before the traffic stop, officers had intercepted a telephone call from Cline in which it was agreed that Cline would visit Wright's residence the next day between noon and two. During the call, both Cline and Wright avoided talking about the purpose of the visit. Officers had information that Cline's business sold pseudoephedrine and that Cline had supplied another methamphetamine manufacturer with pseudoephedrine in 1998. On the morning of the traffic stop, surveillance had seen Cline transporting boxes with his pickup at his business and at a video store. Grassl did not stop Cline until he had turned onto the road that went by Wright's residence. When Grassl asked where he was headed, Cline indicated a direction and said he had missed the right turnoff. Grassl had not observed any boxes in the pickup but had seen a jacket laying on the passenger-side floorboard. Grassl testified that the unusual placement of the jacket suggested an effort to conceal something. Based on the information known prior to the stop and learned during the initial stage of the stop, Grassl acted reasonably in expanding the purpose of his stop beyond the traffic violation and to evaluate what other investigatory techniques to use. These circumstances simply do not warrant any further second-guessing of the reasonableness of Grassl's efforts at investigating the swiftly developing situation before him. The court finds that the detention here was not unreasonable in scope or duration.
CONSENSUAL ENCOUNTER
Argument
The defendant Cline maintains the evidence does not show that he was ever free to leave prior to Trooper Grassl seeking Cline's consent to search his pickup. The defendant also remarks that Trooper Grassl was determined to search his pickup whether he consented or not.Governing Law
"`A consensual encounter is the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement officer.'" United States v. West, 219 F.3d at 1176 (quoting United States v. Hernandez, 93 F.3d at 1498). In determining whether a consensual encounter existed, a "court must focus on the totality of circumstances in a particular case." United States v. Elliot, 107 F.3d at 813-14 (citing Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 421 (1996)). Specifically, "`a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" United States v. Elliot, 107 F.3d at 814 (quoting United States v. Sandoval, 29 F.3d 537, 540 (10th Cir. 1994).
Though recognizing little room for bright-line rules in this determination, the Tenth Circuit has applied at least one: "an officer must return a driver's documentation before the detention can end." United States v. Mendez, 118 F.3d 1426, 1430 (10th Cir. 1997) (citations omitted). "After an officer issues the citation and returns any materials provided, the driver is illegally detained only if the driver has objectively reasonable cause to believe that he or she is not free to leave." United States v. Shareef, 100 F.3d 1491, 1501 (10th Cir. 1996) (citation omitted). On the other hand, the return of documentation "is not always sufficient to demonstrate that an encounter has become consensual." United States v. Elliot, 107 F.3d at 814 (citations omitted). "A `coercive show of authority, such as the presence of more than one officer, the display of a weapon, physical touching by the officer, or his use of a commanding tone of voice indicating that compliance might be compelled' may suggest that a detention has not ended." United States v. Anderson, 114 F.3d at 1064 (quoting United States v. Turner, 928 F.2d 956, 959 (10th Cir.), cert. denied, 502 U.S. 881 (1991)). The law enforcement officer need not specifically tell the driver that he is free to leave in order for the encounter to be consensual. United States v. Anderson, 114 F.3d at 1064.
Analysis
The court finds the evidence more than sufficient to establish that a consensual encounter existed when Trooper Grassl asked for Cline's permission to search his pickup. The videotape shows that Grassl returned all of the defendant's documents and presented the warning citation with a brief explanation. At this point, Cline tells Grassl that he saw some grease leaking from the front end and points with his arm extended from driver's window. Grassl is seen stepping away from the pickup as Cline is making these comments. When Cline finishes, Grassl tells Cline that he is "free to go" and promptly follows up with a request to ask "another couple questions." While Grassl is making this comment, the pickup's brake lights come on indicating that Cline was preparing to leave and apparently acting on the belief that he was free to go. Cline responded with a simple, "yeah," to Grassl's request to ask more questions. There is no evidence that Grassl made any coercive show of authority after returning the documentation that would have prevented the situation from becoming a consensual encounter.
CONSENT TO SEARCH
Argument
The defendant contends any alleged consent was the fruit of the prior illegal traffic stop and detention.Governing Law
A search authorized by consent is wholly valid and is a well-recognized exception to the prohibition against warrantless searches. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Voluntariness is a question of fact to be determined from the totality of all the circumstances. 412 U.S. at 227. "[T]he government bears the burden of proving consent and must show by `clear and positive testimony that consent was unequivocal and specific and freely given . . . without duress or coercion, express or implied.'" United States v. Winningham, 140 F.3d 1328, 1331 (10th Cir. 1998) (quoting United States v. McKneely, 6 F.3d 1447, 1453 (10th Cir. 1993)). Some factors relevant in making this determination are "whether the consent request occurs during the suspect's detention, . . .; whether the officer fails to inform the suspect he or she was free to leave or refuse consent, . . .; whether the person granting consent exhibits discomfort during the search or expresses a desire to halt the search, . . .; and whether multiple officers are present,. . . ." United States v. Winningham, 140 F.3d at 1332 (citations omitted). "Consent to search may be voluntary even though the consenting party is being detained at the time consent is given." United States v. Doyle, 129 F.3d 1372, 1377 (10th Cir. 1997) (citation omitted); see United States v. Dozal, 173 F.3d 787, 796 (10th Cir. 1999).
Analysis
The defendant's only challenge is that the alleged consent is fruit of the poisonous tree. When consent is given following an illegal detention, the government's burden of proving voluntariness is heavier. United States v. McSwain, 29 F.3d 558 (10th Cir. 1994). Having found that the stop and detention were lawful and that a consensual encounter existed, the government bears no heavier burden in proving voluntary consent. The videotape is convincing evidence that the Cline's consent to search the pickup was unequivocal and specific and freely given without duress or coercion.
IT IS THEREFORE ORDERED that the defendant Timothy Cline's motion to suppress evidence derived from a traffic stop on December 15, 1999, in Cherokee County, Kansas. (Dk. 536) is denied;
IT IS FURTHER ORDERED that the defendant Cline's motion to suppress evidence derived from the interception of wire communications (Dk. 618) based on the alleged illegality of this traffic stop and resulting search is denied.