United States v. Ortiz

• Citation: 669 F.3d 439
• Decision Date: 27 February 2012
• Docket Number: No. 11–4193.,11–4193.
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Lenny Manuel ORTIZ, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

669 F.3d 439

UNITED STATES of America, Plaintiff–Appellant,

v.Lenny Manuel ORTIZ, Defendant–Appellee.

No. 11–4193.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 9, 2011.Decided: Feb. 27, 2012.

ARGUED: Jonathan Biran, Office of the United States Attorney, Baltimore, Maryland, for Appellant. Richard Winelander, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Christopher J. Romano, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellant.

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Reversed and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge KING and Judge DUNCAN joined.

OPINION

NIEMEYER, Circuit Judge:

After Lenny Ortiz was indicted for two drug trafficking crimes—conspiracy to distribute five kilograms or more of cocaine and possession with intent to distribute five kilograms or more of cocaine—in violation of 21 U.S.C. § 841(a)(1), he filed a motion to suppress the cocaine discovered in and taken from a secret compartment in his vehicle, alleging that the search of the vehicle violated his Fourth Amendment rights. The district court granted the motion on the ground that the search exceeded the scope of Ortiz's consent.

Because we conclude that the district court applied the wrong legal standards for determining whether law enforcement officers had consent to search Ortiz's vehicle and, in any event, whether they had probable cause to search it, we reverse and remand for further proceedings.

I

On August 7, 2009, the Maryland State Police received a tip from the New Jersey State Police that a white Mitsubishi automobile, which was believed to be connected with large volumes of drugs and money in the New York/New Jersey area, was heading southbound on I–95 and was approaching the Delaware Memorial Bridge. The New Jersey State Police described the vehicle, supplied its license plate number, and indicated that the vehicle was suspected of containing drugs and money, based on information given by an informant with whom the New Jersey State Police were working. The Maryland State Police circulated the information to its troopers and alerted them to look out for the vehicle.

Soon after receiving the dispatch, Trooper Richard Decker spotted the vehicle traveling southbound on I–95 in Baltimore County, Maryland, traveling 13 miles per hour over the speed limit. Trooper Decker pulled the vehicle over, which was occupied only by its driver, Lenny Ortiz, and notified the Maryland State Police that he had stopped the vehicle. Trooper Decker was instructed to drag out the traffic stop in order to enable a more experienced officer and a drug dog to arrive at the scene. He was also instructed not to tell Ortiz that he was being stopped for anything more than a routine traffic violation.

As Trooper Decker approached the vehicle, he detected a strong scent of air freshener coming from the vehicle, and as he began speaking with Ortiz, he saw several cans of freshener in the vehicle. This contributed to Decker's suspicion that drugs were indeed in the vehicle because he understood that air fresheners were often “used as a masking agent to cover up some types of illegal drugs.”

Upon Decker's request, Ortiz produced a New York driver's license, the vehicle's New Jersey registration card, and an expired insurance card. As these records revealed that Ortiz was not the owner of the vehicle, Ortiz explained that he had borrowed it from the owner. When asked for further information, however, Ortiz stumbled over the owner's name, saying that he only knew her last name. At a later point, he also could not supply the owner's telephone number. Ortiz appeared very nervous and was also unable to explain his destination.

Trooper Decker returned to his cruiser to check out Ortiz's license, warrant status, and criminal history, determining that Ortiz's driver's license was valid, that no warrants were outstanding against him, and that he had no criminal history. While Decker was writing a warning ticket, Trooper Jeremiah Gussoni arrived. On his way to the scene, Trooper Gussoni spoke directly with New Jersey State Police Trooper Larry Williams, who told Gussoni that the Mitsubishi had frequently been used to transport “contraband, drugs, and money” in the New Jersey and New York area; that the vehicle's course heading south on I–95 past the Delaware Memorial Bridge was “extremely unorthodox” for this vehicle; and that he suspected that “the vehicle would have drugs or large amounts of currency in it.”

Upon Trooper Gussoni's request, Ortiz stepped out of the vehicle so that Gussoni could pat him down and speak with him further. During the conversation, Ortiz acknowledged that his license might be suspended in Virginia. When asked whether there were any drugs or money inside the vehicle, Ortiz said no. Trooper Gussoni then requested permission to search the vehicle for drugs, and Ortiz responded, “Yes,” telling Gussoni that “he was in no rush, [they] could take [their] time, and [they] were free to search his vehicle.” During this conversation, Trooper Gussoni observed that Ortiz was “scared to death.” The officers did not, however, search the vehicle at that point because they had not yet completed the traffic stop. As they later explained at the suppression hearing, Maryland State Police policy requires the troopers to secure consent after completing the traffic stop and telling the suspect he is free to leave. Nonetheless, Decker and Gussoni determined that they would not let Ortiz leave before properly searching the vehicle, a determination that they did not share with Ortiz.

Trooper Decker completed writing a warning ticket and handed it to Ortiz, along with Ortiz's other papers, telling him he was free to leave and shaking his hand. Decker then expressed his concern to Ortiz that the vehicle might be stolen and asked whether he could “look around” for signs of “tampering or theft.” When Ortiz responded, “Sure, sure,” Trooper Decker asked further, “Are you sure you don't mind?” Ortiz replied, “I'll stand right here and wait.”

Troopers Decker and Gussoni then searched the vehicle while Ortiz stood a short distance away, speaking with a third officer from the Maryland Department of Transportation who had responded to the alert, and he never objected to any of the actions pursued by the troopers during the course of their search. The troopers later explained that in conducting their search they were looking for signs of tampering or theft such as a popped ignition, a shaved key, low-hanging wires, tools such as screwdrivers or bolts, broken windows, and damage to exterior locks. They were also looking for the concealed vehicle identification number (“VIN”), which is located in a different spot for each make, model, and year of vehicle, to compare it with the openly displayed VIN on the dash of the vehicle, because it was common for automobile thieves to alter or replace the openly displayed VIN. Two minutes into the search, Trooper Gussoni lifted up the back seat in his effort to locate the concealed VIN, and under the seat, he observed a hidden compartment. When the officers opened the compartment, they uncovered six kilograms of cocaine. Ortiz was then placed under arrest.

The time that elapsed between when Ortiz was first pulled over and when he was arrested was approximately 35 minutes.

After Ortiz was indicted for drug trafficking, he filed a motion to suppress the cocaine, arguing that the search of his vehicle violated his Fourth Amendment rights because: (1) whatever consent he gave was “tainted” by the unreasonable length of the traffic stop, and (2) the search exceeded the scope of the consent he gave and therefore violated the general rule that officers must acquire a warrant before conducting the search.

The district court concluded that the Maryland State troopers exceeded the scope of consent given to them by Ortiz and, for that reason, granted Ortiz's motion to suppress, entering its order on January 7, 2011. In reaching its decision, the court concluded: (1) that the length of the detention “was not unreasonable and therefore not violative of the Fourth Amendment”; (2) that the Maryland State Police had reasonable suspicion that drugs were in the vehicle, but not probable cause; (3) that Ortiz gave consent to search for drugs before the traffic stop was completed but that the troopers could not, under Maryland State Police policy, rely on that consent because it was given before completion of the traffic stop; (4) that Ortiz gave his consent a second time to search the vehicle, but this time “to make sure [the vehicle] was not stolen”; and (5) that because persons generally are not aware that a concealed VIN could be under the back seat of the vehicle, Ortiz did not authorize the troopers to lift up the back seat to search for the concealed VIN. Accordingly, the court concluded that in removing the back seat, Trooper Gussoni violated Ortiz's Fourth Amendment rights and that the subsequent seizure of the cocaine was therefore illegal.

The government filed this appeal from the district court's order.

II

To justify the Maryland State Police's search of Ortiz's vehicle and the seizure of the cocaine found there, the government contends (1) that Ortiz voluntarily gave his consent to search the vehicle for drugs, a consent that he never withdrew, and that nothing in the events following his consent justified an inference that this consent was withdrawn; (2) that Ortiz also voluntarily consented to a search of his vehicle for evidence of tampering or theft, which reasonably included authorization to search for the concealed VIN to confirm that the displayed VIN was not altered and for other evidence outside the vehicle's main compartment; and (3) that the troopers in any event had probable cause to believe that the vehicle contained contraband and therefore could be...