U.S. v. Alcaraz-Arellano

• Decision Date: 22 January 2004
• Docket Number: No. 03-40015-01-SAC.,03-40015-01-SAC.
• Citation: 302 F.Supp.2d 1217
• Parties: UNITED STATES of America, Plaintiff, v. Gerardo ALCARAZ-ARELLANO, Defendant.
• Court: U.S. District Court — District of Kansas

302 F.Supp.2d 1217

UNITED STATES of America, Plaintiff, v.Gerardo ALCARAZ-ARELLANO, Defendant.

No. 03-40015-01-SAC.

United States District Court, D. Kansas.

January 22, 2004.

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Marilyn M. Trubey, Office of Federal Public Defender, Topeka, KS, for Defendant.

Randy M. Hendershot, Office of United States Attorney — Topeka, Topeka, KS, for Plaintiff.

MEMORANDUM AND ORDER

CROW, District Senior Judge.

This case came before the court for evidentiary hearing on the defendant's motions to suppress evidence and to dismiss the indictment.The court, having heard the testimony and reviewed the exhibits and pleadings, rules as follows.

I.FACTS

On February 9, 2003, Russell County Sheriff's Deputy Kelly Schneider was on routine patrol, monitoring traffic.When westbound on I-70, he noticed a gold car traveling eastbound, and determined by radar that it was going 77 m.p.h. in a 70 m.p.h. zone.Deputy Schneider routinely stops cars going that speed in a 70 m.p.h. zone, and decided to stop this one as well.Deputy Schneider testified that at the time he decided to stop the gold car, he did not know who was in the car, and did not know the number or race of the occupants.

Deputy Schneider then turned his patrol car around and pursued the vehicle for approximately two miles before catching up to it.Upon approaching the vehicle, he noticed that it was registered in California.He then pulled alongside the vehicle to determine how many people were in the vehicle, where they were located, and whether they were wearing seatbelts, as he routinely does.He gathers this information for the purpose of protecting his own safety, and testified that his intent is not to determine the race of the occupants, as race is immaterial to him both personally and professionally.Deputy Schneider testified that when he pulled alongside the vehicle, he saw two men in it.Although he was unsure of their race, they appeared to be Hispanic.

Deputy Schneider stopped the vehicle, and motioned for defendant to exit the vehicle.Defendant produced his license and registration, as requested.Deputy Schneider saw that defendant's license was from New York and that defendant had purchased the vehicle in California three days earlier.When asked whether he owned the vehicle, defendant told the deputy that he had taken a short trip to California, had been there one and one-half days, had purchased the car, and was returning to New York where he lived.Deputy Schneider noticed that the registration showed defendant's address as Huntington Beach, California and not New York.He believed that defendant's statement that he had been in California only one and one half days contradicted the earlier date of purchase shown on the registration.He additionally found defendant to be "extremely nervous," as exhibited by lots of pacing, his hands shaking when he handed the deputy his license, and his shifting and moving around.Deputy Schneider testified that these acts of nervousness did not diminish throughout their contact, even after the deputy told the defendanthe would receive a warning instead of a ticket.

After Deputy Schneider returned defendant's documents to him and was writing him a warning, he asked what defendant did for a living.Defendant told him that he did landscaping, but had not worked the last two months.Deputy Schneider found it unusual that defendant had purchased a new car when he was unemployed, and that defendant had traveled from New York to California to purchase a car which was not distinctive or unique.

As defendant opened the door and began to leave the patrol car, Deputy Schneider asked if he could ask him some more questions.Defendant agreed, and the deputy then asked whether defendant had any contraband or illegal drugs in the car.After defendant replied "no," the deputy asked if defendant would consent for him to look in the car.Defendant replied, "yes," and the deputy asked him to open the trunk, then asked the passenger to exit the car.Both complied with the deputy's requests and were cooperative throughout the encounter.

In the trunk, Deputy Schneider saw some duffle bags, then inspected the wheel well and the spare tire for drugs.He noticed that the floor in the trunk area was green, instead of gold as the original undercoating on the car would ordinarily have been.He saw that the caulking around the floor was new, thick and white, and that the carpet padding in or near the spare tire compartment was glued to the floor, both of which he found unusual.Suspecting a concealed compartment, he did a "finger test" inside the trunk and determined that the three inch gap he detected was too large, confirming his suspicions of a concealed compartment.

Because of his training and experience, Deputy Schneider knew that the reason for concealed compartments in vehicles such as this is to hide illegal drugs or contraband.He then approached the defendant and advised that there was a false compartment in the trunk, to which defendant said, "yes."Deputy Schneider then asked, "You know there's a false compartment in the trunk?" and defendant again replied, "yes."When the deputy asked whether there was anything in the compartment, defendant said "nothing," and told the deputy he could look.The vehicle was then transported to the Sheriff's Department, where it was searched.At no time did defendant protest, object, attempt to limit the scope of the search, or revoke his consent to search.

The search of the vehicle uncovered a hidden compartment in the trunk which contained approximately three kilograms of cocaine and one kilogram of heroin.Defendant and his passenger were then arrested and subsequently charged with possession with the intent to distribute these substances.

II.MOTION TO SUPPRESS

Defendant's motion to suppress challenges the validity of the initial stop, the scope and duration of the detention, and the validity of defendant's consent to search the car.

A.Initial Stop

As the Tenth Circuit established in United States v. Botero-Ospina,71 F.3d 783, 787(10th Cir.1995), cert. denied,518 U.S. 1007, 116 S.Ct. 2529, 135 L.Ed.2d 1052(1996):

[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.

Thus this court's sole inquiry is whether this particular officer had a reasonable suspicion that this particular motorist violated "any one of the multitude of applicable traffic and equipment regulations" of the jurisdiction.SeeUnited States v. D'Armond,65 F.Supp.2d 1189(D.Kan.1999).

In the present case, Deputy Schneider's testimony that defendant's vehicle was speeding, and that he routinely stops cars traveling 77 m.p.h. in a 70 m.p.h. zone for a violation of the traffic laws is credible and uncontradicted.Although Deputy Schneider admitted that he does not stop all speeders, and that the defendant denied speeding, the court does not find this sufficient to defeat the government's showing that the deputy had reasonable suspicion to stop the defendant's vehicle.Accordingly, defendant's challenge to the initial stop fails.

B.Detention

Defendant next challenges the scope of the detention.An officer making an investigative detention or a Terry stop must possess articulate reasonable suspicion.United States v. Carhee,27 F.3d 1493, 1496 and n. 2(10th Cir.1994).Reasonable suspicion is one that would "warrant a man of reasonable caution in the belief that [a stop] was appropriate."Terry v. Ohio,392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968)(quotation and citation omitted).Police officers cannot rely upon an "unparticularized suspicion or hunch."Brown v. Texas,443 U.S. 47, 52 n. 2, 99 S.Ct. 2637, 61 L.Ed.2d 357(1979);United States v. Fernandez,18 F.3d 874, 878(10th Cir.1994)."While the necessary level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence, the Fourth Amendment requires some minimal level of objective justification."United States v. Gutierrez-Daniez,131 F.3d 939, 942(10th Cir.1997)(quotation and citation omitted), cert. denied,523 U.S. 1035, 118 S.Ct. 1334, 140 L.Ed.2d 494(1998).The court considers both the quantity and quality of the evidence when evaluating whether there is reasonable suspicion.

The court looks at the factors enumerated at the suppression hearing, "both individually and in the aggregate, and determine[s] whether, under the totality of the circumstances, those factors give rise to a reasonable suspicion of criminal activity."United States v. Salzano,158 F.3d 1107, 1111(10th Cir.1998)(citation omitted).The court"judge[s] the officer's conduct in light of common sense and ordinary human experience."United States v. Mendez,118 F.3d 1426, 1431(10th Cir.1997)(citation omitted)."This approach is intended to avoid unrealistic second-guessing of police officers' decisions and to accord appropriate deference to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions."Gutierrez-Daniez,131 F.3d at 941(quotation omitted).

Generally, an investigative detention must "last no longer than is necessary to effectuate the purpose of the stop."United States v. Patten,183 F.3d 1190, 1193(10th Cir.1999)(quotingFlorida v. Royer,460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229(1983)).It must be temporary, and its scope must be carefully tailored to its underlying justification.Gutierrez-Daniez,131 F.3d at 942.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.United States v. Hunnicutt,135 F.3d 1345,...