Opinion
Case No. 2:04 CR 110 DAK.
July 13, 2004
ORDER
This matter is before the court on defendants Mario Deleon and Miguel Zavala's Motion to Suppress all evidence seized, including statements made, during a traffic stop on February 17, 2004. An evidentiary hearing on the motion to suppress was held on May 20, 2004, and closing arguments were held June 23, 2004. At the hearings, defendant Mario Deleon appeared and was represented by James A. Valdez, defendant Miguel Zavala appeared and was represented by A. Jason Velez, and the plaintiff was represented by Vernon Stejskal. Officer Scott R. Hatch testified at the evidentiary hearing and was cross-examined by Mr. Valdez and Mr. Velez. The court has carefully considered all pleadings, memoranda, testimony, and evidence submitted by the parties as well as the law and facts relating to this motion. Now being fully advised, the court renders the following Order.
A. FINDINGS OF FACT
1. Officer Scott R. Hatch is a police officer with the Richfield City Police Department.2. Officer Hatch has completed training in drug investigations and/or drug interdiction and participated or assisted in approximately fifteen to twenty-four drug interdiction stops during the eight years he has been employed in law enforcement.
3. At approximately 8:25 a.m. on February 17, 2004 Officer Hatch was headed eastbound in a marked police vehicle on a portion of Interstate 70 that falls within the Richfield City limits when he observed a vehicle signal to turn left and then make an abrupt and erratic lane change from the right lane to the left lane to pass a semi truck. The vehicle then proceeded to pass the semi truck and then abruptly move back into the right lane directly in front of the semi truck while continuing to signal for a left turn.
4. The subject vehicle was being driven by defendant Miguel Zavala, but was registered to the passenger, defendant Marion Deleon.
For purposes of this motion, the United States has conceded that Mr. Zavala has standing to contest the constitutionality of the search and seizure.
5. After observing the erratic driving and failure to properly signal to make the lane change to the right lane, Officer Hatch increased his speed to catch up with the vehicle and activated his overhead emergency lights to conduct a traffic stop.
6. Upon activation of the emergency lights, the onboard video recording device in Officer Hatch's police vehicle automatically began recording. The video tape also contains audio recording of some portions of the stop depending upon whether Officer Hatch had manually activated his microphone.
7. The video tape demonstrates that the vehicle pulled over without incident and in a timely manner.
8. During Officer Hatch's initial interaction with the defendants in their vehicle, he noticed an overpowering smell of both laundry detergent and cologne. In fact, the odor was so strong that Officer Hatch did not believe it was plausible that the defendants could drive for an extended distance with such an overpowering smell. The intense odor of cologne indicated that it was sprayed in the vehicle upon the officer initiating the traffic stop.
9. In addition to the overpowering smell, Officer Hatch noticed a single suitcase in the backseat of the car, a cardboard box container of laundry detergent on the floor, a plastic bottle of laundry detergent on the floor, and a dryer sheet laying between the driver's seat and the driver's door. The vehicle also contained several bottles of cologne.
10. Based upon his training and experience, Officer Hatch knew that laundry detergent, dryer sheets, and cologne are often used to mask and/or cover up the smell of illegal drugs.
11. Officer Hatch asked the driver, Mr. Zavala, for his license, registration, and insurance but Mr. Zavala was not able to communicate in English.
12. Officer Hatch then began to converse with Mr. Deleon — the passenger and registered owner of the vehicle. Mr. Deleon had sufficient familiarity with the English language to understand and respond to Officer Hatch's questions.
13. Mr. Deleon informed Officer Hatch that Mr. Zavala did not have a driving license but provided Officer Hatch with registration, proof of insurance, and his own driving license. Officer Hatch returned to his police vehicle to conduct a check of the license and registration. The check revealed that Mr. Deleon's driving license had been suspended and therefore neither of the defendants had a valid driving license to operate the vehicle. It took Officer Hatch approximately five to six minutes to complete the check of the license and registration. During the same time frame, Officer Hatch requested and received the assistance of two other law enforcement officers.
14. Officer Hatch then requested that the driver, Mr. Zavala, step out of the car so that Officer Hatch could question him outside the presence of Mr. Deleon. Once again, Officer Hatch was not able to communicate with Mr. Zavala because Mr. Zavala was not able to understand and speak English.
15. Officer Hatch then began to question Mr. Deleon while he was still seated in the vehicle. Officer Hatch informed Mr. Deleon that there was a problem because there was no one licensed to drive the vehicle and asked Mr. Deleon several questions about his travel plans. Officer Hatch also asked Mr. Deleon if there were any illegal drugs, weapons, contraband, or large amounts of cash in the car to which Mr. Deleon responded no and then stated to Officer Hatch "you wanna check?" At no time during the stop did Officer Hatch return Mr. Deleon's license and registration to either of the defendants.
16. Officer Hatch then requested that Mr. Deleon exit the vehicle so the officers could conduct a search of the vehicle. Upon exiting the vehicle Officer Hatch conducted a pat-down search of Mr. Deleon and the coat he was holding and wished to wear while waiting outside the vehicle. During the pat-down, Officer Hatch discovered a container of Super Glue in the pocket of Mr. Deleon's jacket. Based upon Officer Hatch's training and experience he knew that Super Glue was sometimes used by persons transporting illegal drugs to re-glue hidden compartments containing illegal drugs.
17. The officers began searching the car, including the trunk. Officer Hatch opened the trunk and smelled a very strong chemical odor that he believed may have resulted from the recent use of Super Glue. One of the officers assisting Officer Hatch with the search noticed that both the cooler in the trunk and the cooler located in the back of the car had indications of recent glueing around the edges of the coolers. Illegal narcotics were found hidden in the liners of both coolers and the defendants were arrested.
B. CONCLUSIONS OF LAW
1. The court concludes that the initial traffic stop was valid. "Whether a traffic stop is valid under the Fourth Amendment turns on 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.'" United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir. 2004) (quoting United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995). Officer Hatch had an objectively reasonable suspicion that Mr. Zavala had violated Utah Code Ann. § 41-6-69(1)(a) that provides "[a] person may not turn a vehicle or move right or left upon a roadway or change lanes until the movement can be made safely and an appropriate signal has been given." Officer Hatch observed that Mr. Zavala failed to appropriately signal or change lanes in a safe manner. See United States v. Manjarrez, 348 F.3d 881, 885 (10th Cir. 2003) (holding that an officer had an objectively reasonable suspicion to stop the defendant for failing to properly signal when exiting his lane). Whether Mr. Zavala actually violated the law or has a reasonable justification for his driving behavior is irrelevant. See Vercher, 358 F.3d at 1262-63 ("Thus we conclude that in some cases, an officer's observation of a vehicle traveling at a high speed and close distance from the preceding vehicle, while not necessarily sufficient to convict, is sufficient to provide a reasonable suspicion to effectuate a traffic stop.").
2. The court concludes that Mr. Deleon did not voluntarily consent to the search of his vehicle. At no point was the encounter between the defendants and the officers consensual because Officer Hatch did not return Mr. Deleon's driving license and registration. At the time Mr. Deleon was questioned regarding contraband, there were three officers present at the scene and Mr. Zavala had been removed from the car. Under the circumstances of this case, a reasonable person in the defendant's position would not believe he was free to leave or disregard the officer's request for further information. The Government argues that Mr. Deleon's "consent was unequivocal and specific, and was freely and intelligently given." (Pl.'s Brief at 10.) However, the only indication of a consent to search the vehicle contained in the video tape is an ambiguous statement by Mr. Deleon of "you wanna search?" Officer Hatch testified that he never directly asked Mr. Deleon if he could search the vehicle. Although the court finds that Mr. Deleon had a "working knowledge" of the English language sufficient to give consent, the court concludes that the Government has failed to meet its burden to prove Mr. Deleon voluntarily consented to the search of the vehicle.
3. The court concludes that Officer Hatch was justified in lengthening the detention of defendants for questioning unrelated to the initial stop. An "officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring." United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998) (noting that driving with a suspended license can justify further questioning). Defendants' inability to offer proof of a valid driving license, by itself, is sufficient justification to allow further questioning unrelated to the initial stop. Moreover, Officer Hatch detected numerous odors commonly used to mask illegal narcotics that would justify a reasonable and articulable suspicion that the defendants were involved in illegal activity.
4. The court concludes that Officer Hatch had probable cause to conduct a search of the vehicle and its trunk without a warrant.
Under the automobile exception, "police officers who have probable cause to believe there is contraband inside an automobile that has been stopped on the road may search it without obtaining a warrant." Moreover, if there is probable cause to believe that a container in a lawfully stopped vehicle contains contraband, the police may search the container without a warrant.United States v. Oliver, 363 F.3d 1061, 1068 (10th Cir. 2004) (quoting Florida v. Meyers, 466 U.S. 380, 381 (1984)). "The Supreme Court has stated that `[a]rticulating precisely what `reasonable suspicion' and `probable cause' mean is not possible' because `[t]hey are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" United States v. Mercado, 307 F.3d 1226, 1230 (10th Cir. 2002) (quoting Ornelas v. United States, 517 U.S. 690, 695 (1996). Furthermore, "[c]ourts should `defer to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions.'" Id. at 1231 (quoting United States v. McRae, 81 F.3d 1528, 1534 (10th Cir. 1996)).
The inability of the defendants to produce a valid driving license, the overwhelming smell of odors commonly used to mask illegal narcotics, the apparent spraying of cologne in the vehicle shortly before Officer Hatch approached the car, the presence of two containers of laundry detergent in the car, and the presence of a dryer sheet next to the driver's seat provided Officer Hatch with probable cause to believe there were illegal narcotics being transported in the vehicle. This is not a situation where there was simply a box of laundry detergent present in the vehicle with no other indication of illegal activity. Rather, there was a multitude of agents used to mask the smell of illegal narcotics and cologne was sprayed in the vehicle prior to Officer Hatch approaching the vehicle in such a strong concentration as to reasonably cause Officer Hatch to conclude that the cologne was being used to mask illegal narcotics.
The court did not consider the existence of Super Glue found in Mr. Deleon's coat pocket in determining whether probable cause existed to search the vehicle and trunk and therefore need not determine whether the pat-down violated Mr. Deleon's Fourth Amendment rights. The evidence of recent glueing around the edges of the coolers, irrespective of whether Officer Hatch had previously found a container of Super Glue in Mr. Deleon's coat, provided justification to search the coolers for narcotics.
CONCLUSION
Based upon the foregoing, it is hereby ordered that Defendants' Motion to Suppress is DENIED.