Opinion
No. 02-10010-01-WEB
July 10, 2002
Memorandum and Order
This matter came before the court on July 2, 2002, for a hearing on the defendant's motion to suppress evidence. The court took the matter under advisement at the conclusion of the hearing. Having considered the evidence and the arguments of the parties, the court concludes that the motion to suppress should be denied. In sum, the court finds that the seizure of the defendant and the search of his car by a Kansas Highway Patrol Trooper on January 26, 2002, were lawful and did not violate the defendant's constitutional rights.
I. Findings of Fact.
The court finds the following facts from the evidence presented at the suppression hearing.
Sergeant Terry Kummer is a law enforcement officer with the Kansas Highway Patrol. His duties include patrolling roads in western Kansas, including Thomas County. Early in the afternoon of January 26, 2002, Kummer was in a marked patrol car traveling westbound on Interstate 70 near Colby, Kansas, in Thomas County. I-70 is a four-lane highway running east and west through Kansas. Kummer exited the highway somewhere near the Levant, Kansas, exit, and turned around and began traveling eastward. Kummer was going about seventy miles per hour when he came up behind a late model blue Mercury Marquis. The Marquis was in the right-hand lane and was traveling slower than Kummer, so Kummer moved to the left-hand lane. Kummer saw the Marquis stray over the right shoulder line of the highway by about two feet before crossing back inside its lane. Kummer slowed down and stayed behind the Marquis. Within about a quarter of a mile the Marquis strayed over the line again, this time about three feet, before returning to its lane. Kummer decided to stop the car for failing to maintain a single lane of traffic. Up to this point Kummer had not seen who was driving the car and could not tell the race of the driver or whether they were male or female. Nor did Kummer know at this point that the car was a rental vehicle.
There is no credible evidence that Kummer had taken notice of the defendant or his car while Kummer had been traveling westbound, nor is there any credible evidence that Kummer changed directions for the purpose of pursuing the defendant.
Kummer testified that he considers a car crossing out of its lane more than once within a short distance to be a possible indication of an impaired driver who may be drunk or sleepy. According to Kummer, the weather on this particular day was overcast and there was some wind, but in his judgment the weather would not have made it impractical for a driver to maintain a single lane of travel. Kummer had no difficulty maintaining a single lane and had not seen other drivers having difficulty. Section 8-1522 of the Kansas Statutes provides in 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. . . ."
Kummer activated his emergency lights to stop the Marquis. Turning on the emergency lights automatically started a video recorder in the patrol car and an audio recorder connected to a microphone on Kummer's uniform. The subsequent events were recorded on videotape. (Government's Exhibit 1). A written transcript reflecting a portion of the audio recording was presented at the suppression hearing. (Defendant's Exhibit A). The following findings of the court contains a summary of the conversation during the stop; it is not intended as an exhaustive statement.
Kummer approached the driver's side of the car and talked to the vehicle's only occupant, defendant Ygnacio Zabalza. Kummer said he was just checking to make sure Zabalza wasn't sleepy and asked to see Zabalza's license. Mr. Zabalza produced an Arizona driver's license. Kummer testified at the suppression hearing that when he began talking to Zabalza he could detect a moderate-to-strong odor of raw marijuana coming from the car, and he had no doubt there was marijuana in the car. Kummer asked Zabalza if the car was his, to which defendant said, "No, just — I'm going to um, uh, Albany," and he produced a rental agreement showing he had rented the car in Phoenix and was supposed to turn it in at Albany, New York. In the ensuing brief conversation, Zabalza told Kummer that he worked for the International Brotherhood of Electrical Workers and was dropping off the car in Albany before flying back to Phoenix. When Kummer asked why he had not flown to Albany, Zabalza said it was because he was transporting his tools. Kummer asked, "Oh is that what you've got in the trunk? It looks really weighted down." Zabalza responded, "No, I'm bringing all my stuff over, and then I come back home, and then the union calls me back [inaudible]." Zabalza said he had to take all of his tools to New York because he was going to get a job there. He said it usually took about a week for the union to call him back and that he would then fly back to Albany, and would later rent a car to take his tools back to Arizona. Kummer was suspicious of Zabalza's explanation but was polite and friendly in tone throughout the conversation. After conversing for about a minute, Kummer returned Zabalza's license and rental agreement. Kummer asked a few more questions, noting at one point with a laugh that the travel plans "don't make any sense to me, but ok." Kummer told Zabalza to "have a safe trip" and "take care," and began to walk back towards his patrol vehicle, but he quickly turned around and came back.
Kummer conceded at the suppression hearing that wishing Zabalza well and walking away was designed to make Zabalza think that he was free to go, and that in fact Kummer intended to detain Zabalza regardless of whether he agreed to answer more questions. Kummer said that if Zabalza had not consented he would have detained him based on the odor of marijuana in the car and would have radioed for a K-9 to perform a dog sniff on the car.
When Kummer returned to the driver's window he said, "Hey, you don't mind if I ask you a couple questions before you take off, do ya? You wouldn't mind if I looked — took a look at your tools real quick would ya?" Zabalza's precise response, like several of his comments, is indecipherable from the tape, although the evidence indicates he did not object to answering questions.
Kummer attempted to determine if Zabalza would consent to a search of the trunk. Kummer asked if Zabalza had anything illegal in the trunk, like guns or drugs, and Zabalza said he did not. When Kummer asked if he could take a quick look, Zabalza seemed to indicate that he would not object but for the fact the trunk was "locked back there." When Kummer asked, "Can we unlock it and look at it or," Zabalza said, "No," which left Kummer unsure of what Zabalza meant. Kummer said, "Is that ok?", and when Zabalza momentarily hesitated Kummer added, "You don't want me to look?" Zabalza responded, "You can look if you want to," but denied having anything illegal. Kummer asked if it was unlocked, at which point Zabalza asked Kummer if he was "prejudiced or something." Kummer said, "No, I'm asking to look at your tools," explaining with a laugh that he thought Zabalza's travel plans were "really strange" and concluding, "So that's why I just wanna look real quick. So would you mind?" Zabalza said, "Okay." Kummer asked for the key to open it, but Zabalza said the trunk was open. Kummer walked to the back of the car and attempted to open the trunk, but it was locked. Kummer told Zabalza it was still locked, and Zabalza activated a remote trunk latch in the car, which popped open the trunk lid. Kummer then looked in the trunk, and when he lifted up a blanket on top of the contents, he saw numerous large brick-shaped packages in brown paper wrapping. Kummer could smell a strong odor of marijuana upon opening the trunk.
As Kummer walked back to the driver's side, Zabalza got out of the car. Kummer got out his handcuffs and was reaching for Zabalza's arm when he noticed there was a fire was burning inside the passenger compartment of Zabalza's car. Zabalza suddenly resisted and backed away from Kummer. Kummer's attention was momentarily diverted by the fire, and Zabalza ran around the front of the vehicle. Kummer went around the other side of the car, drew his firearm, and ordered Zabalza to get on the ground. Zabalza initially got on his hands and knees a sort distance from the front passenger side of the car, but after a moment's hesitation he got up and began running away across an open field next to the highway. Kummer went back to his car and retrieved a cell phone to call a dispatcher. He made some efforts to extinguish the fire, but when he opened the doors to the Marquis the wind fanned the flames, spreading them quickly through the interior. Kummer did not pursue Zabalza because he intended to wait for backup and he did not believe Zabalza could escape in the open countryside. Kummer advised the dispatcher of his situation, asking for backup and the fire department. Some passing motorists stopped and assisted Kummer in unloading the marijuana from the car. By this time the interior of the car was engulfed in flames. After backup arrived, Kummer went to help search for Zabalza, but Zabalza could not be found. Zabalza was eventually captured around eleven o'clock that night at a rest stop about two miles away. He was suffering from exposure to the cold and was taken to a hospital before being taken to the Colby law enforcement center.
II. Arguments in Motion to Suppress.
The defendant argues his Fourth Amendment right to be free from unreasonable searches and seizures was violated because the initial stop of his vehicle was not supported by reasonable suspicion or probable cause; because the officer detained him and the vehicle beyond the permissible scope of a traffic stop in the absence of reasonable suspicion or probable cause; because he did not voluntarily consent to a detention or to a search of the vehicle; because any purported consent was tainted by an unlawful detention; and because any statements made by him must be suppressed as a product of an unlawful search or seizure.
The defendant also argued that his stop was part of a pattern by Sgt. Kummer of stopping vehicles in the absence of probable cause in order to conduct drug searches, that it was part of a pattern of stopping minority drivers for lane violations, and it was part of a pattern of stopping late model rental vehicles to search for drugs. In an attempt to prove these allegations, the defense offered statistical evidence of prior citations issued by Sgt. Kummer in Thomas County. The court also permitted the defense to present testimony from two drivers who had previously been stopped by Sgt. Kummer but who felt they had not committed any violation. In both of those instances, Sgt. Kummer asked for and was given consent to search their vehicles.
III. Discussion.
The Fourth Amendment protects individuals from unreasonable searches and seizures. A traffic stop is a seizure within the meaning of the Fourth Amendment. Courts have consistently applied the rule of Terry v. Ohio to routine traffic stops. Under Terry, the reasonableness of a search or seizure depends on whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.
United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998) (Quoting Delaware v. Prouse, 440 U.S. 648, 653 (1979) (internal quotation marks omitted)).
392 U.S. 1 (1968).
See, e.g., United States v. Botero-Ospina, 71 F.3d 783, 788 (10th Cir. 1995) (en banc).
Terry, 392 U.S. at 20.
A traffic stop is reasonable under the Fourth Amendment at its inception if the officer has probable cause to believe a traffic violation has occurred. In this case, the court finds credible the officer's testimony that he observed what appeared to be a traffic violation when the defendant's car twice crossed over the lane line and that he decided to stop the car for that reason. The court rejects as unsupported by any credible evidence the suggestion that Sgt. Kummer stopped the defendant in the absence of probable cause. Sgt. Kummer's testimony that he observed a violation was not only credible; it was essentially uncontradicted. The fact that a few individuals previously stopped by Sgt. Kummer do not believe they actually committed a violation, or the fact that Sgt. Kummer follows a routine in traffic stops (which may include asking for consent to search) does not show that this stop was unreasonable.
United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999); Whren v. United States, 517 U.S. 806, 810 (1996).
Similarly, the court finds no credible evidence that the defendant's race played any role in Sgt. Kummer's decision to stop the vehicle. The evidence shows that Kummer was unaware of the defendant's race when he stopped the car. Moreover, the suggestion that Sgt. Kummer's past record of issuing citations somehow implies that he subjects Hispanics — including the defendant — to unequal enforcement of the traffic laws is unavailing. Even setting aside numerous questions about the limited nature of the sample provided, the figures cited by the defense show that about sixteen percent of the warning citations issued by Sgt. Kummer for lane violations in the reported period went to Hispanic drivers.
This figure is only a few percentage points higher than the estimated percentage of the Hispanic population of the United States, and it, together with the other evidence, in no way suggests that this stop was based on race. In sum, the court finds that the initial stop of the vehicle in this case was reasonable and lawful.
When Sgt. Kummer first approached the car, he requested a driver's license and asked the defendant whether the car was his. Such questions are clearly within the permissible scope of a traffic stop. The court finds credible the officer's testimony that when he first began talking to Mr. Zabalza he detected a moderate-to-strong odor of raw marijuana coming from the car. At that point, Sgt. Kummer and the defendant engaged in a conversation about the defendant's travel plans. Numerous decisions have held that such questions are appropriate in the course of a routine traffic stop.
See e.g. United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir. 1989) (officer may request license and ask about ownership of the car).
See 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"); United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir. 1989); United States v. Hill, 195 F.3d 258, 268 (6th Cir. 1999). Cf. United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001) (en banc) (suggesting in dicta that questions about travel plans are germane and permissible where the motorist was weaving on the highway).
At any rate, given the smell of the marijuana coming from the car, the facts known to the officer gave rise to a reasonable suspicion of criminal activity (if not probable cause) sufficient to justify a detention of the defendant for questioning about his travel plans and what he had in the car. The court thus finds that insofar as Sgt. Kummer may have briefly detained the defendant to ask questions about travel, his actions did not violate the Fourth Amendment. This is true regardless of Sgt. Kummer's subjective motivations at the time and whether he intended to lead the defendant into thinking he was free to go and then ask for consent to search.
Law enforcement officers may search a vehicle without a warrant and in the absence of exigent circumstances if there is probable cause to believe the vehicle contains narcotics. Probable cause means a fair probability that contraband or evidence of a crime will be found. In this case, the court concludes that the facts known to the officer before the search were sufficient to establish probable cause to believe the trunk contained marijuana. Among other facts, the officer was aware of a moderate-to-strong odor of raw marijuana coming from the car such that he had no doubt it contained marijuana; that the trunk of the vehicle appeared to be heavily loaded; that the defendant was making a one-way cross-country trip to New York in a rental car before flying home; and that the defendant's claim that he was hauling his tools to drop them off in New York was highly unusual. Because the officer had probable cause, his search of the trunk did not violate the defendant's Fourth Amendment rights, regardless of whether the defendant actually consented to the search. Accordingly, the court need not address the parties' arguments regarding consent. Likewise irrelevant under the Fourth Amendment are the subjective thoughts of the officer during the traffic stop and his plan for gaining consent for the search.
Florida v. White, 526 U.S. 559, 563-64 (1999).
Alabama v. White, 496 U.S. 325, 330 (1990).
Cf. United States v. Morin, 949 F.2d 297, 300 (10th Cir. 1991) (because marijuana has a distinct smell, the odor of marijuana alone can satisfy the probable cause requirement to search a vehicle or baggage); United States v. West, 219 F.3d 1171, 1178 (10th Cir. 2000) (An officer's detection of the smell of drugs in a car is entitled to substantial weight in the probable cause analysis and can be an independently sufficient basis for probable cause); United States v. Ozbirn, 189 F.3d 1194, 1200 (10th Cir. 1999) (officer's detection of odor of marijuana, along with other suspicious conduct including vague travel plans constitutes probable cause); United States v. Downs, 151 F.3d 1301, 1303 (10th Cir. 1998) (overpowering smell of raw marijuana emanating from a vehicle provided probable cause to search the vehicle's trunk); United States v. Garza, 10 F.3d 1241, 1246 (6th Cir. 1993) (agent's smelling marijuana constituted probable cause to believe that there was marijuana in the vehicle; once probable cause existed, no search warrant was necessary).
United States v. Herrell, ___ F.3d ___ (Table, Text in Westlaw) Unpublished Disposition, 2002 WL 725433 (10th Cir., Apr. 25, 2002) (unnecessary to address validity of consent in view of the existence of probable cause for the search).
Whren v. United States, 517 U.S. 806, 813 (1996) (subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis)
IV. Conclusion.
The defendant's Motion to Suppress Evidence (Doc. 24) is hereby DENIED.IT IS SO ORDERED.