Opinion
Case No. 02-40137-02-JAR
October 8, 2003
Memorandum Order and Opinion Denying Motion to Suppress
This comes before the Court on Defendant Jason Smith's Motion to Suppress (Doc. 42) the evidence seized in a traffic stop of a vehicle driven by him. For the following reasons the motion is denied.
Facts
On March 16, 2002, Kansas Highway Patrol Trooper Mitchell Nollette was patrolling eastbound on Interstate 70 when he observed a west bound Ford Expedition that appeared to be speeding. Trooper Nollette turned his patrol car around in the median, followed the vehicle and checked its speed with his radar gun. The vehicle was traveling 76 miles per hour in a 70 mile per hour zone. Trooper Nollette observed a second traffic violation; the license plate was partially obscured by the border around it, obscuring the state of the licensing authority. Following standard procedure, Trooper Nollette tried to observe the driver's appearance; and he observed that the vehicle was driven by a "dark complected" male wearing a cap.
Government Exhibit 3, a photograph of the back end of the vehicle shows that the border also obscured the registration expiration date as well.
Trooper Nollette effected a traffic stop of the vehicle. Nollette made contact with the driver, defendant Jason Smith. Nollette explained to Smith that he stopped him for speeding and an obscured license plate. At Nollette's request, Smith produced his driver's license. Nollette asked Smith where he was going. After a four to five second hesitation, and without making eye contact with Nollette, Smith responded that he was going to Denver to see his cousins. Smith also advised that the vehicle belonged to his girlfriend, whom he did not identify by name. At Nollette's request, Smith produced the car registration, as well as an insurance card. The car was registered to Omayra Rivera.
Ms. Rivera is the codefendant in this case. She was not present during this traffic stop and has filed a separate motion to suppress the cocaine seized from a rental vehicle she was driving when stopped by a Kansas Highway Patrol Trooper in October 2002.
In this initial conversation with Smith, Trooper Nollette observed that Smith was acting extremely nervous, staring straight ahead and making no eye contact with Nollette. Smith's voice was shaky and his hands trembled. Nollette also observed two cellular phones laying on the front center console.
At this point, Nollette returned to his patrol car. At Nollette's request dispatch checked Smith's driver's license and criminal history. Dispatch advised that the driver's license was valid and that Smith had a criminal history. Nollette did not testify whether he ascertained the nature of the criminal history. Whether to write a ticket or warning citation is left to the patrol officer's discretion. Nollette wrote a warning citation. Nollette decided, based on Smith's demeanor, the fact that the vehicle was owned by someone who was not present, and Nollette's other observations, that he would ask Smith more questions upon returning to Smith's vehicle.
Nollette returned to Smith's vehicle and returned to Smith the driver's license, vehicle registration papers and insurance card. Nollette told Smith "thanks a lot then, we'll see you," stepped back from the vehicle, and watched as Smith put the vehicle's gear selector in "drive." Within one second lapse of time, Nollette asked Smith if he could ask him a few more questions; Smith responded yes. Nollette asked Smith if he was carrying anything illegal in the vehicle such as drugs or guns, or if he was carrying large amounts of cash; Smith responded no.
Nollette then asked "Is it ok with you if I do a search of the vehicle for that type of thing." Smith verbally assented. Nollette asked Smith to exit the vehicle and stand in front of the car. As Smith exited, at Nollette's request, Smith handed the keys to the vehicle to Nollette. Nollette testified that it is standard operating procedure to obtain the keys to gain access to all doors of the vehicle and to ensure that the driver does not drive off during the search and jeopardize the officer's safety. Smith did not object to exiting the vehicle or giving the keys to Nollette.
As Smith watched from an area about 20 feet to the front and right of the vehicle, Nollette searched the entire vehicle, inside and outside. At least three times, Nollette laid underneath the vehicle during the search. The first time Nollette looked at the vehicle's under carriage, he observed that the nuts and bolts that held the gas tank in place appeared to have fresh marks on them, and the bolts were not covered with paint or dirt. Nollette also observed that there were two separate "sending units" on the gas tank; gas tanks typically have only one sending unit, which pumps the gas from tank to engine. Based on his experience in patrol and narcotics interdiction, as well as his experience doing mechanical work on his family's farm, Nollette suspected that someone had recently dismantled the gas tank, perhaps to secrete drugs in the gas tank.
Smith was not able to observe every detail of Nollette's search; and in particular could not have seen Nollette's search of the interior of the back of the vehicle. But, Smith could have seen Nollette laying under the vehicle. And, Nollette specifically asked Smith if he or anyone had dismantled the gas tank. Smith responded no; and Nollette again laid under the vehicle again to confirm his suspicions that the gas tank had been recently dismantled.
At no time did Smith object, protest, or indicate a withdrawal or limitation of the scope of his consent to Nollette's search. In feet, after Nollette again checked the vehicle's undercarriage, he asked Smith if he would follow him to the Highway Patrol's garage in Colby. Smith agreed; Nollette returned the keys to Smith; and Smith drove the vehicle, following Nollette to Colby. At the garage, Nollette raised the vehicle on a hoist, and discovered a hidden compartment attached to the undercarriage of the vehicle. Nollette gained access to this compartment by lifting the carpet over a customized trap door behind the third row of seats in the vehicle. In the compartment, Nollette found several bundles of currency totaling about $100,000. Smith denied knowledge of the hidden compartment, knowledge or ownership of the money; and Smith signed forms disclaiming any ownership or interest in the money.
Discussion
Defendant Smith challenges the validity of the traffic stop, and further argues that Nollette's actions during the stop were not reasonably related in scope to the circumstances which justified the stop in the first place because there was no reasonable articulable suspicion that Smith was engaged in criminal activity. Smith also argues that he did not voluntarily consent to Nollette's search of the vehicle, and even if he consented, Nollette's search exceeded the scope of any consent he gave.
The traffic stop was clearly valid. Smith was stopped for speeding and for failure to properly display a license plate in violation of K.S.A. 8-133. Stopping the vehicle because it was speeding, and/or because the license plate was partially obscured satisfies the Fourth Amendment requirement of `some minimal level of objective justification' for making the stop.
K.S.A. 8-133 requires that "[e]very license plate shall at all times be securely fastened to the vehicle . . . in a place and position to be clearly visible, and shall be maintained free from foreign materials and in a condition to be clearly legible."
I.N.S. v. Delgado, 466 U.S. 210, 217 (1984); Terry v. Ohio, 392 U.S. 1, 22 (1968).
Although the initial stop of the Smith's vehicle was legitimate, any further detention must be "reasonably related in scope to the circumstances which justified the interference in the first place," as required under Terry. "Generally, an investigative detention must `last no longer than is necessary to effectuate the purpose of the stop.'" It must be temporary, and its scope must be carefully tailored to its underlying justification. 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.
United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)).
United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir. 1997), cert. denied, 523 U.S. 1035 (1998) (citing United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997)).
Patten, 183 F.3d at 1193 (citation omitted); United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997) (citations omitted).
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. After Nollette determined that Smith had a valid driver's license and after he decided to issue a warning citation, a further detention had to be supported by a reasonable and articulable suspicion, unless the encounter became consensual. Nollette testified that at this point in the traffic stop, he suspected that illegal activity might be involved, because Smith was driving a third party vehicle, that is a vehicle not owned by him and the owner is not present. Further, Smith displayed extreme nervousness, with shaky hands and voice and failure to make eye contact during his conversation with Nollette. Also, Smith hesitated for four to five seconds before answering Nollette's question about where Smith was going.
United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998) (citations omitted).
But the Court need not decide whether Nollette had a reasonable and articulable suspicion justifying further detention. If an encounter between a police officer and a motorist is consensual, the Fourth Amendment ban on unreasonable searches and seizures does not come into play. After Nollette returned to the vehicle, the encounter became consensual. Nollette returned all documentation to Smith, thanked him and wished him well, and watched as Smith put the vehicle into drive gear. At this point Nollette asked for permission to ask Smith questions and Smith agreed. And, merely asking questions does not constitute a seizure or implicate the Fourth Amendment.
See United States v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996); Patton, 183 F.3d at 1194 ("A consensual encounter is simply the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement official.") (quotation omitted).
A driver must be permitted to proceed after a routine traffic stop if a license and registration check reveal no reason to detain the driver, unless the officer has a reasonable articulable suspicion of other crimes or the driver voluntarily consents to further questioning. See United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996); United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999).
Royer, 460 U.S. at 497.
Smith not only agreed to answer Nollette's questions; when Nollette asked for permission to search the vehicle, Smith responded affirmatively. Smith contends that his consent was not voluntarily given. Although consent must be given voluntarily, there is no requirement that it be given knowingly and intelligently; and there is no requirement that the consenting party knows they have the right to refuse consent.
In Schneckloth v. Bustamonte, the Supreme Court noted that in determining voluntariness, courts should look to the totality of circumstances, including the age, education, experience, intelligence, and knowledge of the right to withhold consent, as well as whether the consenting party was advised of his or her constitutional right. The court should also consider whether officers gained permission to search by coercive means or under inherently coercive circumstances. Voluntariness is a question of fact to be determined by the totality of the circumstances. The government bears the burden of proving voluntary consent and must meet two standards: "the government must (1) `proffer clear and positive testimony that consent was unequivocal and specific and freely and intelligently given' and (2) `prove that this consent was given without implied or express duress or coercion.'"
412 U.S.218 (1973).
Ohio v. Robinette, 519 U.S. 33, 40 (1996).
United States v. Hernandez, 944 F. Supp. 847, 851 (D. Kan. 1996) (citing United States v. McRae, 81 F.3d 1528, 1537 (10th Cir. 1996)) (quotation omitted).
In this case, Smith obviously believed he was free to leave, because he had placed the car in drive gear and was preparing to leave when Nollette asked for permission to ask him some questions. And, there is no evidence that Nollette employed coercive means to obtain Smith's consent to search. From the Court's observations of the video taped encounter, Nollette was at all times soft spoken, pleasant, respectful and low key. Smith's behavior mirrored Nollette's. There were no harsh words, no show of force, or anything other than positive, and cooperative interaction between Nollette and Smith. Nollette was the only trooper present during the stop; the encounter occurred on a highway with moderate traffic and in public view. Nollette did not display or brandish his weapon, and did not touch Smith, nor lean on the vehicle.
See United States v. Patten, 183 F.3d 1190, 1194 (10th Cir. 1999) (A consensual encounter does not invoke the Fourth Amendment. Whether an encounter is consensual is based on the totality of the circumstances and whether the individual has an "objective reason to believe that he is not free to terminate his conversation with the officer and proceed on his way.")
Nor is there any evidence that Smith withdrew his consent during the course of the search, or limited the scope of Nollette's search, by either word or deed. Smith watched Nollette's search. Although he could not see the details of Nollette's entire search, he had to know that Nollette laid under the vehicle, particularly since Nollette laid under the vehicle three times, and asked Smith if anyone had recently dismantled the gas tank.
Finally, nothing suggests that the encounter did not remain consensual. Nollette asked Smith he if was willing to follow Nollette to the patrol's garage. Smith agreed and drove the vehicle, following Nollette's vehicle to the garage.
Based on the totality of the circumstances, the Court finds that Smith consented to answering Nollette's questions, consented to Nollette searching the vehicle, undercarriage and all, and consented to following Nollette to the garage so the vehicle's undercarriage could be searched more thoroughly. For these reasons, the Court concludes that Smith's motion to suppress evidence has no legal basis and should be denied as a matter of law.
IT IS THEREFORE ORDERED BY THE COURT that Defendant Smith's Motion to Suppress (Doc. 42) is DENIED.