Opinion
Criminal No. SA-03-CR-0623 XR.
August 5, 2004
ORDER
On this day, the Court considered Defendant's Motion to Suppress. Defendant Mario Alberto Rodriguez argues that Trooper Hogue ("Hogue") from the Texas Department of Public Safety illegally stopped and unreasonably detained and searched his vehicle in violation of his Fourth Amendment rights. Defendant further seeks to suppress all items removed from his vehicle, including 36 pounds of cocaine hidden in the van's side support beams.
FINDINGS OF FACT
1. On December 3, 2003, at the intersection of U.S. 57 and Interstate Highway 35 ("IH-35"), Trooper Hogue positioned his patrol car on the interstate's median, oriented so that he could observe vehicles from U.S. 57 merging with northbound traffic on IH-35. Trooper Hogue witnessed a white minivan fail to yield to northbound traffic when it entered the interstate from the entrance ramp, causing a grey van in the outside lane to take evasive action to avoid a collision. Trooper Hogue entered IH-35 from the median and initiated a traffic stop of the minivan.
2. A camera mounted inside Trooper Hogue's patrol car recorded the traffic stop, which began approximately at 10:47:43 a.m.
Trooper Hogue testified at the hearing that he was driving his spare patrol car at the time of the stop. Since he rarely used that vehicle, Trooper Hogue failed to reset the camera's internal clock to coincide with current daylight savings time. Thus, the time on the videotape reads 11:47:43, when in actuality, it should read 10:47:43.
3. Defendant pulled his vehicle over to the improved right shoulder of the interstate and waited inside the van as Hogue approached the driver's side of the van from the rear. Hogue requested Defendant's driver's license and insurance and explained the reason for the stop. Defendant conveyed his driver's license, but failed to provide proof of insurance after multiple requests, choosing instead to give Hogue papers documenting the sale of the vehicle.
4. Trooper Hogue testified that his suspicion was aroused when he noticed that the car was extremely clean. For instance, when Defendant opened his glove box to look for his insurance papers, there was nothing inside. The papers documenting the alleged sale were in the passenger seat next to the Defendant and there were no items inside the van, on the floor boards, or in the back seat.
5. At 10:48:57, Hogue asked Defendant to exit the vehicle and follow him to the rear of the minivan because Hogue was having difficulty listening to and communicating with Defendant while Defendant remained in the vehicle.
The traffic noise remains a problem with the video tape and it is difficult to hear some of Defendant's responses.
6. Once the two were to the rear of the minivan and between the vehicles, Hogue asked Defendant if he had been drinking because he could smell alcohol. Defendant replied that he had not had a drink that morning, but had been drinking the night before.
7. At 10:49:58, Hogue informed Defendant that he would only issue him a warning for failure to yield. As he began to complete the warning citation, Hogue asked Defendant how long he has possessed the vehicle and for the year and model of the van.
8. Defendant did not know the year or model but seemed to take a guess. He also stated that he was in the process of purchasing the van and that he did not have insurance yet. Trooper Hogue then asked Defendant who he was buying the van from and how many miles the van had on it. Although Defendant knew who he was buying the van from, he did not know how many miles were on it. In addition, Defendant's name did not appear on the bill of sale.
9. Trooper Hogue's suspicions were further aroused because he would "certainly think that anybody that just purchased a vehicle would certainly know the year model of that vehicle" and the mileage of that vehicle.
10. Because of the lack of insurance and knowledge about the van, Trooper Hogue testified that he began to think the van had been stolen. If the van had not been stolen, Trooper Hogue believed that the van was transporting contraband.
11. Trooper Hogue proceeded to ask Defendant how much he paid for the van. Although Defendant stated that he paid approximately $5,500, the bill of sale, which Defendant had handed him, showed that the vehicle was bought for $3,000 six months ago.
12. At 10:52:28, Hogue reprimanded Defendant and reminded him that he needed to carry insurance on his vehicle. He then asked if everything was "ok" on Defendant's license. Defendant stated that everything was "ok." After asking him if he was spending the night at his destination, Trooper Hogue asked why Defendant did not have any overnight clothes with him.
13. At 10:54:09, Hogue asked Defendant if he had anything in his pockets and proceeded to pat him down. He asked Defendant again how much he paid the owner of the car and when he paid her. Because Trooper Hogue suspected that the car was stolen, he asked Defendant if he could call the person on the bill of sale. As he approached the patrol car, presumably to call, he put down his clipboard and returned to Defendant to ask him if there was anything illegal in the vehicle. At 10:54:58, Trooper Hogue asked Defendant if he would consent to a search of the vehicle.
14. Because Defendant agreed to a search, Trooper Hogue retrieved a flashlight and screwdriver from his patrol car and began the search.
CONCLUSIONS OF LAW
1. Any finding of fact herein above which also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law herein made which also constitutes a finding of fact is hereby adopted as a finding of fact.
The Initial Traffic Stop
2. The Fourth Amendment protects individuals from unreasonable search and seizure. U.S. CONST. amend. IV. Because a routine traffic stop, and subsequent detention, implicates the Fourth Amendment as a seizure, the stop must be limited. Terry v. Ohio, 392 U.S. 1 (1968). Thus, the police officer's action must be justified at its inception, and the seizure must be reasonably related in scope to those justifying circumstances. Id. at 20.
3. Once the purpose of the valid traffic stop has been completed, the detention or investigative stop must end unless there are additional reasonable suspicions supported by objective and articulated facts. U.S. v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003). Defendant disputes both that the traffic stop was justified at its inception and that his detention during the stop was reasonably related in scope to the reasons articulated for the initial stop.
4. Defendant argues that Trooper Hogue's initial stop was unlawful because he safely entered the highway. Defendant concludes that because there was no collision, he complied with the statute. Under the Texas Transportation Code, a driver must slow to a reasonable speed and yield the right-of-way to an approaching vehicle. TEX. TRANS. CODE § 545.153(c)(1-2). Although the statute provides that a collision acts as prima facie evidence that the operator failed to yield, it does not state that a collision must occur for a violation of the statute. TEX. TRANS. CODE § 545.153(d).
5. Defendant presented no evidence to rebut Trooper Hogue's testimony that an unknown vehicle took evasive action because Defendant did not yield the right-of-way. Because a "person commits an offense if the person performs an act prohibited or fails to perform an act required by" the Transportation Code, Trooper Hogue was justified in stopping Defendant for failing to yield. TEX. TRANS. CODE § 542.301.
6. Defendant also seems to have argued that he did not force the unknown vehicle to take evasive action. Because "an operator may drive on an improved shoulder . . . to accelerate before entering the main traveled lane of traffic," it appears Defendant argues that he merely accelerated on the shoulder and did not fail to yield the right-of-way. TEX. TRANS. CODE § 545.058(a)(2). He bases this argument on the video tape which begins with Defendant driving along the shoulder. However, because Defendant's right turn signal is blinking, it appears that he was previously driving in the outside lane of the four lane highway. Because he only pulled onto the shoulder after Trooper Hogue initiated the traffic stop, the video tape does not support Defendant's conclusory statement that he accelerated on the improved shoulder.
Questioning Reasonably Related in Scope to the Circumstances
7. Although Trooper Hogue asked for proof of insurance, Defendant offered his alleged bill of sale. Because the bill of sale did not match the name provided to the officer on the driver's license, questions concerning it and Defendant's lack of insurance were permissible. See U.S. v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999).
8. Questions about the purpose and itinerary of a trip are permissible during a legitimate traffic stop. Gonzalez, 328 F.3d at 758; U.S. v. Henry, 372 F.3d 714 (5th Cir. 2004). Thus, Defendant's argument that Trooper Hogue's questions concerning his address and journey exceeded the scope of the traffic stop is meritless. See also U.S. v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993) ("[D]etention, not questioning, is the evil at which Terry's second prong is aimed.").
Reasonable Suspicion of Criminal Wrongdoing
9. "Beginning with Terry v. Ohio, 466 U.S. 1 (1968), the [Supreme] Court has recognized that a law enforcement officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further." Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt City, 124 S.Ct. 2451, 2458 (2004). By examining the totality of the circumstances, the Court must determine "whether the detaining officer has a `particularized and objective basis' for suspecting legal wrongdoing." U.S. v. Arvizu, 534 U.S. 266, 273 (2002) (citation omitted).
10. Trooper Hogue testified that he suspected the vehicle had been stolen when Defendant did not know the year and model of the van (10:50:51), did not know the number of miles on the van (10:51:20), and allegedly paid more for it than the bill of sale showed (10:51:34). These questions all concerned the bill of sale which Defendant handed to Trooper Hogue and were asked while Trooper Hogue wrote out Defendant's citation. Defendant mistakenly argues that Trooper Hogue completed the reason for the initial stop when he began writing out the warning. The law however, provides that once the warning or citation has been completed, absent reasonable suspicion, the entire reason for the initial stop is met. See U.S. v. Valadez, 267 F.3d 395 (5th Cir. 2001); U.S. v. Grant, 349 F.3d 192 (5th Cir. 2003).
Defendant argues that Trooper Hogue only articulated that Defendant appeared nervous and that his car was abnormally clean, implicating in Hogue's mind, a reasonable suspicion of drug trafficking. While Trooper Hogue articulated these facts, which are discussed infra, he also emphasized that he began to suspect the car was stolen based on Defendant's lack of knowledge.
11. This is not a situation where Trooper Hogue unreasonably detained Defendant by continuing his questioning after he completed the warning. See U.S. v. Jones, 234 F.3d 234 (5th Cir. 2000); U.S. v. Dortch, 199 F.3d 193 (5th Cir. 1999). In that line of cases, the officer had completed the initial justification for the stop either by writing out and handing over a citation, or running a computer check on a driver's license. Because the purpose of the initial traffic stop had been completed, and the officer could not articulate a reasonable suspicion of criminal activity, the officer's continued detention and questioning of the individuals unreasonably prolonged the traffic stop. See also Valadez, 267 F.3d 395 (holding that when the officer stopped the vehicle because he suspected that the window tint was illegal and the registration sticker out of date, the officer should have allowed the vehicle to continue when he realized that both those items were proper).
Because the Fifth Circuit has recognized that consensual interrogation between an officer and citizen may follow the end of a valid traffic stop, Defendant mistakenly focuses on the fact that Trooper Hogue retained his license. The proper inquiry focuses on Trooper Hogue's questioning while writing out the citation and whether Trooper Hogue articulated a reasonable suspicion based on the totality of the circumstances. U.S. v. Sanchez-Pena, 336 F.3d 431, 443 (5th Cir. 2003); Arvizu, 534 U.S. at 273.
12. While officers must "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them," the suspicion required to justify a detention must arise from more than an unparticularized suspicion or hunch. Arvizu, 534 U.S. at 273; U.S. v. Sokolow, 490 U.S. 1, 7 (1989) (citations omitted). This is not a situation where Trooper Hogue merely articulated a "hunch" that Defendant was involved in illegal drug trafficking. Trooper Hogue stated that while he was filling out the warning citation, Defendant could not answer basic questions about a vehicle he supposedly just purchased.
13. Because Trooper Hogue believed the car may have been stolen, he asked Defendant if he was spending the night with his uncle. After Defendant purported to be spending the night in San Antonio, Texas, but did not have any personal belongings with him, coupled with the abnormal cleanliness of the car and alleged recent purchase of the vehicle, Trooper Hogue began to suspect illegal drug trafficking. A court making the assessment of whether the stop has exceeded the scope of its initial justification, "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." U.S. v. Sharpe, 470 U.S. 675, 686 (1985). Based upon Trooper Hogue's experience, the (1) lack of documentation for the vehicle, (2) story that the individual just bought it, (3) abnormal cleanliness of the vehicle, and (4) lack of personal items, indicated that the individual was transporting narcotics.
Consent to Search
14. Because Trooper Hogue's questioning was reasonably related in scope to the initial justification of the traffic stop, he did not unreasonably detain Defendant. At 10:54:55, approximately 6 minutes after the initial stop, Trooper Hogue reasonably suspected that Defendant had either stolen this vehicle or was transporting illegal narcotics.
15. Since Trooper Hogue's line of questioning did not violate the Fourth Amendment, the questioning and limited Terry stop detention did not taint Defendant's consent to search. Gonzalez, 328 F.3d at 759. Defendant presented no evidence to support the idea that his consent was not voluntary or an independent act of free will.
Although not briefed by either party, Defendant at his suppression hearing seemed to argue that Trooper Hogue intended to destroy the car by approaching it with a flashlight and screwdriver. But a flashlight may be used to check dark interiors, even during the day, and a screwdriver could be used for a number of reasons. See Texas v. Brown, 460 U.S. 730, 739-40 (1983); U.S. v. Ross, 456 U.S. 798 (1982).
16. Defendant's argument that he should have been "Mirandized" prior to his consent to search is unsupported in law. Likewise, there is no statutory or constitutional duty that he be informed of his right to refuse consent. Cf. Ohio v. Robinette, 519 U.S. 33 (1996); Sanchez-Pena, 336 F.3d 431, 442 (5th Cir. 2003).
Defendant's reliance on case law from the Tenth Circuit is misplaced since those cases stand for the unsurprising conclusion that when a driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, absent a reasonable and articulated suspicion of illegal activity. U.S. v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994); U.S. v. Lee, 73 F.3d 1034 (10th Cir. 1996) overruled by U.S. v. Holt, 264 F.3d 1215 (10th Cir. 2001). Here, Defendant offered no proof that he was entitled to operate the vehicle and Trooper Hogue articulated two distinct and reasonable suspicions of illegal activity.
CONCLUSION
Based on the totality of the circumstances, Trooper Hogue's questioning relating to the bill of sale and Defendant's travel plans was permissible, and created a reasonable suspicion that Defendant either stole the vehicle or was transporting illegal narcotics. Defendant's valid consent authorized Trooper Hogue to act on those reasonable suspicions and search the car for evidence of those two crimes. Defendant's Motion to Suppress is DENIED.