State v. Arceo-Rojas, No. 119,266

• Citation: 458 P.3d 272
• Decision Date: 07 February 2020
• Docket Number: No. 119,266
• Parties: STATE of Kansas, Appellee, v. Erika Yazmin ARCEO-ROJAS, Appellant.
• Court: Court of Appeals of Kansas

458 P.3d 272

STATE of Kansas, Appellee,

v.Erika Yazmin ARCEO-ROJAS, Appellant.

No. 119,266

Court of Appeals of Kansas.

Opinion filed February 7, 2020.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Green and Buser, JJ.

Green, J.:

Lieutenant Justin Stopper stopped Erika Yazmin Arceo-Rojas on I-70 for driving too long in the left lane and an unsafe lane change. During the traffic stop he began to suspect that Arceo-Rojas and her passenger were transporting illegal drugs. After completing the traffic stop, he detained Arceo-Rojas until a K-9 unit arrived and performed a dog sniff of her car. The dog signaled that he detected drugs in the car. When Lieutenant Stopper searched the car, he found a large quantity of marijuana. The State charged Arceo-Rojas with possession of marijuana with intent to distribute and with no drug tax stamp. Arceo-Rojas moved to suppress the drug evidence. The trial court denied her motion and convicted her on both counts after a bench trial. Arceo-Rojas appeals, arguing that Lieutenant Stopper lacked a legally recognized reasonable suspicion for both the initial traffic stop and the later extension of the stop while waiting for the K-9 unit. For the reasons stated later, we affirm.

On November 4, 2016, Lieutenant Justin Stopper of the Geary County Sheriff's Department stopped a car on I-70; the driver was later identified as Arceo-Rojas. Lieutenant Stopper is an eight-year veteran of the Geary County Sheriff's Department. Before that, he was employed for two years as an officer with the Junction City Police Department. In training for employment in law enforcement, Lieutenant Stopper attended three academies, including the Law Enforcement Training Center, where he successfully completed his course of study. Since his certification as a police officer, Lieutenant Stopper testified that he had completed about 400 hours of additional training which is required to maintain his certification as a police officer. Of particular relevance to this appeal, in addition to the 400 hours of general law enforcement training, Lieutenant Stopper testified that he had received over 300 hours in specialized training specifically related to criminal and drug interdiction.

Lieutenant Stopper stopped Arceo-Rojas for two alleged traffic offenses. But while conducting the traffic stop, he began to suspect Arceo-Rojas was trafficking drugs. After completing the traffic stop, Lieutenant Stopper detained Arceo-Rojas until a K-9 officer came to the scene and completed a dog sniff of Arceo-Rojas' car. When the dog signaled, Lieutenant Stopper searched the car and found marijuana in a large black duffel bag.

The State charged Arceo-Rojas with possession of marijuana with intent to distribute and no drug tax stamp. Arceo-Rojas moved to suppress the drugs and other evidence found as a result of the stop and search. The trial court held a hearing on the motion on May 22, 2017.

Lieutenant Stopper testified that on November 4, 2016, he stopped Arceo-Rojas for "lingering in the left lane" and an "unsafe lane change." He stated that when he first observed Arceo-Rojas' car, she was driving in the left lane on I-70 next to another car in the right lane; both cars were going 74 mph. He testified that Arceo-Rojas remained in the left lane without passing the other car—and in fact "fell back" behind the other car at one point—for at least 3 miles.

With respect to the "unsafe lane change," Lieutenant Stopper testified that his car, Arceo-Rojas' car, and the car in the right lane crested a hill where another police car sat stationary at the side of the road. The car in the right lane slowed down, and then Arceo-Rojas "overtook that vehicle, turned her turn signal on, and then cut over in front of that vehicle and left well less than a second following distance for the vehicle behind it."

Lieutenant Stopper testified that after he stopped Arceo-Rojas' car, he walked up to the passenger side of the car and asked Arceo-Rojas for her driver's license and car rental documents. As he approached the car, he noticed that Arceo-Rojas had not turned her right turn signal off and he attributed this to possible "auditory exclusion," when a person is so stressed out that they "block out" background sounds. Once at the car, he noticed that both Arceo-Rojas and her passenger appeared to be very stressed, evident by "breathing patterns and a visible heartbeat in their stomach area." He also noticed a "strong fragrance" coming from inside the car—which he perceived as either a type of perfume or an air freshener—that dissipated quickly. He noted a large black duffel bag in the back of the car, surrounded by scattered clothes and suitcases.

Lieutenant Stopper also testified that he read the rental agreement. It showed that the car was rented on November 2 in Washington state and was due back November 7 in the same location. He testified that based on his years of experience in law enforcement and "over 300 hours in specialized training," he knew that drug traffickers frequently make "really short, fast trips" to limit their exposure to law enforcement. Lieutenant Stopper stated that the rental agreement showed the car was rented to the passenger's husband, who was not present. According to Lieutenant Stopper, drug traffickers frequently use rental cars rented by third parties not actually traveling in the car. Lieutenant Stopper admitted that the passenger told him the car's rental period could be extended.

Lieutenant Stopper stated that he took Arceo-Rojas' driver's license and reviewed the rental agreement. He asked Arceo-Rojas to come back to his police car with him; she complied. In the police car, Lieutenant Stopper asked Arceo-Rojas about her travel plans. Arceo-Rojas told Lieutenant Stopper that she and the passenger were driving from Washington to Cleveland, Ohio, because she had a possible job transfer to Cleveland; she stated that they intended to stay in Cleveland for a couple days. Arceo-Rojas also told Lieutenant Stopper that she and the passenger rented the car. She also stated that she was in a dating relationship with the passenger.

After questioning Arceo-Rojas in the car and running a warrant and criminal history check on her, Lieutenant Stopper walked back to the rental car to question the passenger about the pair's travel plans. The passenger told him that "[o]riginally, they were going to go to Utah, but then they changed their mind and said they were going to Cleveland." Lieutenant Stopper testified that when he asked the passenger why they were going to Cleveland, she stated that they were going to buy some sports jerseys because Arceo-Rojas' favorite sports team was in Cleveland. Later, she mentioned that Arceo-Rojas might have a job possibility in Cleveland. The video, however, shows that the first reason the passenger gave for the trip was for Arceo-Rojas' job and that Arceo-Rojas wanted to move. She further stated that she did not know how long they would stay in Cleveland, but she had two weeks off work. The passenger also stated that her husband had rented the car because she did not have a credit card. Lieutenant Stopper testified that the longer he remained in contact with the passenger and Arceo-Rojas, the more stressed they appeared.

Next, Lieutenant Stopper walked back to his police car to write Arceo-Rojas a citation. He continued to question Arceo-Rojas about her travel plans. He asked why the pair was using I-70 to travel to Cleveland from Washington, as I-70 was significantly farther south than other available interstate routes, thus adding time to their trip. Arceo-Rojas responded that she was following her GPS. Lieutenant Stopper testified that a lot of times drug traffickers use nondirect routes to their destinations to avoid law enforcement. Then, Lieutenant Stopper issued Arceo-Rojas a notice to appear for "improper driving on a lane roadway" and returned her license and the rental documents. He asked if he could search her car; she refused. He asked if she would wait for a K-9 to come to the scene and sniff her car; she refused. At this point Lieutenant Stopper had already called a K-9 officer who was en route but had not yet arrived. Lieutenant Stopper decided to detain Arceo-Rojas until the K-9 unit arrived a short time later. Lieutenant Stopper stated that he decided to detain Arceo-Rojas because of the totality of the circumstances, including

"the heavy odor coming from the vehicle, the travel plans stated by the occupants, basically the disparity in travel plans, the large black duffel bag—that was part of it, not a whole lot of it, but that was [a part] of it—the extreme off route that they were in, the obvious signs of stress that they were exhibiting."

The State introduced into evidence Lieutenant Stopper's dashboard camera video showing his encounter with Arceo-Rojas' car and the eventual traffic stop of the car. The State also introduced into evidence the video footage from inside Lieutenant Stopper's car when he questioned Arceo-Rojas in the car. The State played the videos for the trial court.

Lieutenant Stopper testified that he detained Arceo-Rojas until an officer and his K-9, Barney, arrived about four to five minutes later. The officer had Barney sniff the perimeter of Arceo-Rojas' car and Barney signaled, indicating that he detected drugs. The officer told Arceo-Rojas that Barney had signaled, and he asked if she had marijuana in the car. She indicated there was marijuana in the car but she did not know how much because someone else had put it in the car. In a large black duffel bag, Lieutenant Stopper found 51 vacuum-sealed bags of marijuana. In total, the individually packaged bags weighed 54 pounds.

Arceo-Rojas, through counsel, cross-examined Lieutenant Stopper. He acknowledged that at no point during the stop did he smell marijuana. He admitted that h...