Opinion
No. 04-40078-01-SAC.
August 17, 2004
MEMORANDUM AND ORDER
The case comes before the court on the defendant Bruce Doll's Motion to Suppress Certain Items of Physical Evidence (Dk. 14). The government has filed its response opposing this motion. (Dk. 15). The parties presented evidence and argument in support of their positions on August 12, 2004, at 2:30 p.m., and received leave of the court to file supplemental memoranda on the inevitable discovery exception. Having reviewed all matters timely submitted and having researched the relevant law, the court is ready to rule on the pending suppression motion.
INDICTMENT
The defendant is charged in a two-count indictment with drug trafficking offenses. Count one charges that on June 16, 2004, the defendant possessed with the intent to distribute approximately 800 grams of a substance or mixture containing a detectable amount of 3,4 methylenedioxylmethamphetamine, commonly known as MDMA or Ecstasy, a schedule I controlled substance in violation of 21 U.S.C. § 841(a)(1). Count two charges that from on or about June 14, 2004, to on or about June 16, 2004, the defendant conspired with other person unknown to the grand jury to possess with the intent to distribute 800 grams of a substance or mixture containing a detectable amount of 3,4 methylenedioxylmethamphetamine, commonly known as MDMA or Ecstasy in violation of 21 U.S.C. § 846 and 841(b)(1)(C).
SUMMARY OF FACTS
Around 1:30 p.m. on June 16, 2004, Trooper Craig Phillips with the Kansas Highway Patrol was traveling eastbound on I-70 near milepost 360 when he noticed a beige Ford Taurus following another vehicle. From the passing lane, Trooper Phillips was able to see the distance between the two vehicles and determined that there were only twenty to twenty-five feet or one and one-half car lengths between them. The trooper's view was unobstructed by other traffic. Trooper Phillips estimated that less than a second following distance separated the vehicles. Trooper Phillips also estimated the Taurus to be traveling at approximately the same rate of 60 to 65 miles per hour as his patrol car. Trooper Phillips testified that a safe following distance under ideal road and weather conditions is four to six car lengths or at least two seconds. From his observations after following the Taurus for over one mile, Trooper Phillips determined that the Taurus was not following at a reasonably safe distance and at milepost 362 he activated his emergency lights and pulled over the Taurus.
Trooper Phillips approached the Taurus on the driver's side, identified himself, and explained the reason for the traffic stop. A driver's license was produced as requested. The license had been issued by the State of Florida and showed the driver to be Bruce M. Doll. There were no other occupants in the car. Trooper Phillips asked the driver about the ownership of the car and his travel plans. The driver answered that he and friend had gone to Denver, Colorado, where they saw a baseball game but that his friend had become ill and returned home to San Jose, California, by plane. The defendant was now driving the rental car to St. Louis, Missouri, where he would leave it and then fly back to San Jose. Trooper Phillips took the license and car rental agreement back to his patrol car for processing.
Trooper Phillips's patrol car is not equipped with a video camera.
Trooper Phillips testified to several circumstances making him suspicious of the defendant's involvement in criminal activity. First, when the defendant was explaining his travel plans, he handed the trooper what he represented to be a airline ticket confirming his eventual flight from St. Louis to San Jose. Trooper Phillips glanced at the purported ticket and observed that it was only a receipt showing the defendant had flown from Las Vegas, Nevada, just two days earlier. Second, the defendant exhibited various behavior indicative of excessive nervousness. The defendant was fidgety and moved around in his seat and even brought his leg up under himself onto the seat. The defendant's eye contact ended after the trooper began asking about travel plans. The defendant's words were not clear. Third, Trooper Phillips considered the defendant's travel plans to be unusual in that he chose to drive the car to St. Louis instead of turning in the car at Denver and flying back with his sick friend. Fourth, the car rental agreement with Budget did not list the defendant's name as an authorized driver and even prohibited additional persons from operating the car without the Budget's prior written approval. The only operator authorized by the agreement was a person named Ben Hoang, who was not present in the car.
In his patrol car, Trooper Phillips looked over the car rental agreement and prepared a warning citation. The trooper then returned to the Taurus and handed the defendant the license and paperwork and explained the warning to him. Trooper Phillips then requested permission to ask the defendant some additional questions. The defendant gave his permission. The trooper told the defendant that he found the defendant's described travel plans to be suspicious and asked if the defendant was involved in criminal activity. When the defendant denied any involvement, Trooper Phillips asked the defendant for consent to search the rental car. The defendant said he only had his travel bag and would not consent to a search. Trooper Phillips then asked why the defendant was not listed as an authorized operator on the car rental agreement. The defendant said his friend had given him permission. After asking to see the rental agreement again, Trooper Phillips told the defendant that he needed to confirm with Budget that the defendant could operate the car.
When the sole occupant of a rental car is not listed as an authorized operator on the rental agreement, Trooper Phillips testified that he becomes suspicious the occupant is involved in criminal activity. The Trooper said such circumstances could indicate that the rental car is stolen or that the lessee has been the victim of a crime. In this case, the defendant did not furnish Trooper Phillips with any written proof that he was authorized to operate this car.
Returning to his patrol car, Trooper Phillips radioed dispatch requesting that Budget be contacted to confirm whether the defendant was lawfully entitled to operate the rental car. Trooper Phillips also radioed a request to Trooper Scott Morris to bring a drug detection canine to the scene and walk around the exterior of the Taurus. During this same period, the defendant walked back to the patrol car and asked if he was under arrest. Trooper Phillips explained that the defendant was not under arrest but that the defendant could not drive the rental car until the trooper learned if Budget had authorized his use of the rental car. Trooper Phillips directed the defendant to return to the rental car as it was illegal to be a pedestrian on the interstate highway.
Within four to five minutes of making the radio request, Trooper Morris arrived on the scene. The troopers requested the defendant to exit the car and stand on the far shoulder for safety reasons. Trooper Morris walked his dog, Targo, around the car. Observing his dog alert at the left rear side of the Taurus and then indicate at the same spot by scratching, Morris told Phillips that the dog had alerted and the troopers then searched the car's trunk. On the left side of the trunk, they found a red bag stuffed into a void and inside the bag was a plastic ziplock bag containing pills that in the experience and training of Trooper Phillips appeared to be ecstasy.
The defendant was placed under arrest and put in Trooper Morris's patrol car and transported back to the patrol office. Another trooper came to the scene and drove the Ford Taurus back to the office. While they were leaving the scene, dispatch radioed Trooper Phillips that Budget had requested the seizure of the rental car as the defendant was not authorized to operate it. Trooper Phillips testified that the patrol's practice upon receiving such a message from the car rental company was to seize the car and return it to the office where an inventory search would be conducted prior to its impoundment and await its collection by the rental car company. Trooper Phillips also testified that the controlled substance would have been found during the inventory search.
ARGUMENTS AND ANALYSIS
In his written motion, the defendant Doll did not challenge the legality of the traffic stop but when the hearing commenced the defendant added an argument questioning whether the traffic stop was lawful. While it could treat this late argument as waived because the defendant does not offer any tenable reason for not briefing it, the court will decide the issue in the interest of finality. The defendant next contends that Trooper Phillips's questioning after the warning exceeded the lawful scope of the traffic stop and that he lacked reasonable suspicion to detain the defendant further. The defendant further denies he freely and intelligently consented to being detained for additional questions or to any search of the car.
A traffic stop is a seizure under the Fourth Amendment. United States v. Taverna, 348 F.3d 873, 877 (10th Cir. 2003). Akin to investigative detentions, routine traffic stops are analyzed under the investigative detention principles outlined in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). The reasonableness of a stop 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).
In deciding the validity of the initial stop, the court looks at whether it was "objectively justified." United States v. Botero-Ospina, 71 F.3d 783, 788 (10th Cir. 1995) (en banc), cert. denied, 518 U.S. 1007 (1996). To be valid, the officer must have either "`(1) probable cause to believe a traffic violation has occurred, or (2) a reasonable articulable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.'" United States v. Zubia-Melendez, 263 F.3d 1155, 1160 (10th Cir. 2001) (quoting United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999)). The constitutional reasonableness of a traffic stop does not depend on the officer's actual motive in conducting the stop. Whren v. United States, 517 U.S. 806, 812-13 (1996). In short, the initial traffic stop is reasonable if the officer observed a traffic violation or has reasonable articulable suspicion that a traffic or equipment violation occurred. United States v. Nichols, 374 F.3d 959, 964 (10th Cir. 2004).
Trooper Phillips testified that from his unobstructed view of the traffic, he saw that the defendant was not driving the Ford Taurus a reasonably safe distance behind the car in front of the Taurus. Trooper Phillips supported his observation with estimates of the visible and temporal distance between the cars and of the speeds of the cars. Trooper Phillips cogently explained the factual and legal basis for his opinion as a law enforcement officer that the defendant was following too closely the car in front of him. The court finds that Trooper Phillips observed the Taurus commit a traffic violation as to justify the initial traffic stop.
"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)). 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). But, "an officer conducting a traffic stop may request vehicle registration and a driver's license, run a computer check, ask about travel plans and vehicle ownership, and issue a citation. United States v. Zubia-Melendez, 263 F.3d 1155, 1161 (10th Cir. 2001). Upon issuing a 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. 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 if the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring, or the initial detention changes to a consensual encounter. United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998).
The burden rests with the government to prove the reasonableness of the officer's suspicion. United States v. Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998). "A variety of factors may contribute to the formation of an objectively reasonable suspicion of illegal activity." United States v. Hunnicutt, 135 F.3d at 1349. "The law does not specify a minimum of factors necessary to constitute reasonable suspicion." United States v. Gutierrez-Daniez, 131 F.3d at 942 (citation omitted). Arriving at reasonable suspicion is a process dealing with probabilities, not hard certainties, "`as understood by those versed in the field of law enforcement.'" United States v. Gutierrez-Daniez, 131 F.3d at 942 (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)). Instead of closing their eyes to suspicious circumstances, officers may call on their own experience and training to judge facts and even "perceive meaning in actions that appear innocuous to the untrained observer." United States v. Gutierrez-Daniez, 131 F.3d at 942 (citation omitted). On the other hand, "[i]nchoate suspicions and unparticularized hunches . . . do not provide reasonable suspicion." United States v. Salzano, 158 F.3d at 1111 (quotation omitted). "While the necessary level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence, the Fourth Amendment requires some minimal level of objective justification." United States v. Gutierrez-Daniez, 131 F.3d at 942 (quotation omitted).
Looking at the factors identified, individually and together, the court must determine whether they "give rise to a reasonable suspicion of criminal activity." United States v. Salzano, 158 F.3d at 1111 (citation omitted). The court "judge[s] the officer's conduct in light of common sense and ordinary human experience." United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997) (citation omitted). "This approach is intended to avoid unrealistic second-guessing of police officers' decisions and to accord appropriate deference to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions." United States v. Gutierrez-Daniez, 131 F.3d at 941 (quotation omitted). Rather than pigeonholing each fact as either innocuous or suspicious, we look at the totality of the circumstances in determining whether reasonable suspicion justified a longer detention. United States v. Mendez, 118 F.3d at 1431.
The factors identified here provided Trooper Phillips with reasonable suspicion to detain the defendant with additional questions beyond the purpose of the initial traffic stop. "[H]aving no proof of authority to operate the vehicle" is a factor that justifies further questioning and "has figured prominently in many of" the Tenth Circuit's decisions "upholding further questioning." United States v. Hunnicutt, 135 F.3d at 1345 (and cases cited therein); see also United States v. Nichols, 374 F.3d at 965; United States v. Garcia, 52 F. Supp. 2d 1239, 1245-46 (D. Kan. 1999). The defendant's extreme and unabated nervousness is a circumstance supporting reasonable suspicion. See United States v. Garcia, 52 F. Supp. 2d at 1251. The defendant's unusual travel plans and his effort to substantiate them with inconsistent receipts provide additional indicia of reasonable suspicion. See United States v. Garcia, 52 F. Supp. 2d at 1251. Based upon all these factors, Trooper Phillips had reasonable suspicion of criminal activity taking place as to detain the defendant for additional questioning, to detain the rental car while Budget was contacted to determine whether the defendant had Budget's authority to operate the car, and to arrange for a drug detection dog to check the car's exterior while waiting for a response from Budget. The court denies the defendant's motion to suppress based on the asserted unlawfulness of his detention.
The defendant does not have standing to challenge the search of the car, because it was rented in Ben Hoang's name and the defendant's name does not appear as an authorized driver of the vehicle. United States v. Edwards, 242 F.3d 928, 936 (10th Cir. 2001); United States v. Obregon, 748 F.2d 1371, 1374-75 (10th Cir. 1984) (holding that the defendant driver lacked a reasonable expectation of privacy in a rental car because it had been rented by a third party and there was no evidence of that the rental company had permitted defendant lawfully to drive the car). "To establish standing to challenge a car search, the defendant bears the burden of showing that he had a legitimate possessory interest in or a lawful control over the car." United States v. Valdez Hocker, 333 F.3d 1206, 1209 (10th Cir. 2003) (quotation and citation omitted). The defendant has not carried his burden of showing standing to challenge the car search. Nor has the defendant asserted or shown standing to challenge the seizure of any evidentiary items seized from the rental car. The defendant's motion also seeks to suppress items of physical evidence seized from his person, but his suggestions in support do not offer any argument for the illegality of this seizure other than a detention that exceeded the lawful scope of the traffic stop. As this issue has been fully addressed above, the court believes the order decides all arguments properly advanced in the defendant's motion to suppress.
IT IS THEREFORE ORDERED that the defendant's Motion to Suppress Certain Items of Physical Evidence (Dk. 14) is denied.