U.S. v. Alcarez-Mora

• Decision Date: 26 February 2003
• Docket Number: No. 02-40126-SAC.,02-40126-SAC.
• Citation: 246 F.Supp.2d 1146
• Parties: UNITED STATES of America, Plaintiff, v. Carlos ALCAREZ-MORA, Defendant.
• Court: U.S. District Court — District of Kansas

246 F.Supp.2d 1146

UNITED STATES of America, Plaintiff, v. Carlos ALCAREZ-MORA, Defendant.

No. 02-40126-SAC.

United States District Court, D. Kansas.

February 26, 2003.

Melody J. Evans, Topeka, KS, for Plaintiff.

Thomas G. Luedke, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

This case comes before the court on the following motions:

defendant's motion to suppress evidence (Dk.20); defendant's motion to suppress statements (Dk.19); defendant's motion for admission of additional exhibits (Dk.37); the government's motion for admission of transcript (Dk.43); and defendant's motion for Simmons immunity (Dk.)

In the motion to suppress evidence, defendant challenges the legality of the initial traffic stop, and the validity of his consent to search, contending he does not understand sufficient English to have rendered valid consent. In the motion to suppress statements, defendant alleges that all his incriminating statements made post-Miranda were coerced, and that some of his statements are protected by the marital privilege. The court, having held an evidentiary hearing on January 16, 2003, is now ready to rale.

FACTS

On October 17, 2002, at approximately 1:08 p.m., Junction City Police Officer James Oehm was patrolling 1-70 in Geary County, Kansas, when he saw a Chevy Suburban traveling eastbound. Officer Oehm followed the vehicle, then pulled alongside it and noticed sunlight reflecting off a crack and into the driver's line of sight. Officer Oehm was aware that Kansas law prohibits driving a vehicle with a damaged front windshield which substantially obstructs a clear view of the highway, see K.S.A. § 8-1741(b), and stopped the vehicle to determine whether a traffic violation had occurred. Defendant challenges the legality of this initial stop.

Officer Oehm then approached the passenger side of the vehicle, saw a passenger later determined to be defendant's wife, and noticed three children and two dogs in the vehicle. Officer Oehm advised the occupants of the purpose of the stop, and requested in English a driver's license and proof of insurance. Defendant produced his driver's license, and defendant's daughter, after some conversation in Spanish with defendant, stated in English that the insurance was not in the vehicle. Officer Oehm asked defendant in English where he was going, and defendant responded "Alabama." Officer Oehm then took defendant's driver's license and returned to his patrol car.

After writing a warning ticket and reviewing the documents, Officer Oehm returned to defendant's vehicle and asked defendant to step to the rear of the vehicle, which he did. Officer Oehm returned defendant's driver's license and gave defendant the warning citation, explaining that it was merely a warning. Officer Oehm then had a conversation with defendant during which he alleges and defendant denies that defendant consented to the officer's search of the vehicle.

The search uncovered a quantity of methamphetamine in the vehicle. Defendant was arrested, Mirandized, and taken to the police station along with his family. Defendant waived his Miranda rights, and he and his wife were interviewed by officers. Their interview was recorded by video camera in an interview room. At one point during the interview, officers left defendant alone with his wife, and incriminating statements were then made, which were audio recorded. Defendant alleges that all his statements and those of his wife were coerced, and that any statements made when the officers were not in the room are protected from disclosure by the marital privilege.

• Motion to Suppress Evidence

In this motion, defendant contends that the initial stop of his vehicle was illegal, and that his consent to the officer's search of the vehicle was not valid because defendant does not speak or understand sufficient English.

A. Legality of Initial Stop

A traffic stop is a seizure within the meaning of the Fourth Amendment. United States v. Zubia-Melendez, 263 F.3d 1155, 1160 (10th Cir.2001). For the stop to be constitutionally reasonable, the officer must have either "`(1) probable cause to believe a traffic violation has occurred, or (2) a reasonable articulable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.'" Id. (quoting United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999)). The constitutional reasonableness of a traffic stop does not depend on the officer's actual motive in conducting the stop. Whren v. United States, 517 U.S. 806, 812-13,116 S.Ct. 1769,135 L.Ed.2d 89 (1996). Here, defendant suggests that Officer Oehm could not have detected a crack in defendant's windshield while following defendant's vehicle because the vehicle's back windows were darkly tinted, the vehicle's two back doors had a middle frame on them, and the vehicle was carrying two adults, three children, two dogs, and a significant amount of luggage. Defendant alleges that because of Officer Oehm's distant and obscured view, he could not have seen the crack in the windshield. Defendant further contends that even if the officer could have seen the crack in the windshield, the size and placement of the crack failed to give rise to a reasonable suspicion that the crack substantially obstructed defendant's vision.

Officer Oehm testified to his knowledge of the Kansas statute providing:

(b) No person shall drive any motor vehicle with a damaged front windshield or side or rear windows which substantially obstructs the driver's clear view of the highway or any intersecting highway.

K.S.A. § 8-1741.

The Tenth Circuit recently examined this statute under similar facts. In affirming the court's refusal to suppress evidence, the Court stated Streeter's windshield had a crack about 12 inches across and 6 inches high, large enough that Officer Voigt could view it from behind the car. This gave Officer Voigt reasonable articulable suspicion— "a particularized and objective basis"— to believe that the crack substantially obstructed Streeter's view of the street. [U.S. v. ]Cortez, 449 U.S. at 417-18, 101 S.Ct. 690[, 66 L.Ed.2d 621 (1981)]. It is irrelevant whether the observed crack was, in fact, large enough to constitute a violation of the law. United States v. Cashman, 216 F.3d 582, 587 (7th Cir. 2000) (holding that a cracked windshield provided probable cause for a stop even if the crack was not actually large enough to violate the law). The traffic stop was therefore justified, and the district court did not err in denying Callarman's motion to suppress.

United States v. Callarman, 273 F.3d 1284,1287 (10th Cir.2001).

Officer Oehm's testimony at the evidentiary hearing was credible and undisputed. He testified not only that he followed defendant's vehicle, but also that he pulled alongside it. As he looked through his windshield and defendant's window, he saw a crack in defendant's windshield which he believed was reflecting the sunlight into the vehicle. Government's Exhibits 1 and 2 show that the crack extended the entire length of the driver's side of the windshield horizontally, angling toward the center of the windshield.

Defendant testified that the crack never interfered with his vision while driving, as it was below his line of sight, but the court finds this immaterial. The crack was not so small that it could not have been seen by the officer, but was of sufficient size and placement that it gave Officer Oehm reasonable articulable suspicion to believe that the crack substantially obstructed defendant's clear view of the highway. Accordingly, defendant's challenge to the initial traffic stop lacks merit.

• Validity of Consent to Search

Defendant next challenges his consent to search the car. Defendant alleges that because he failed to speak and understand English, he did not give consent at all, but that even if he did voice consent, such consent is invalid. Defendant notes that his failure to object to the search was nothing but acquiescence to a claim of lawful authority, which is insufficient to meet the government's burden.

A warrantless search is "per se unreasonable" unless one of specifically established exceptions, like consent, is present. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (quotations omitted). Here, both the government and the defendant agree that no probable cause existed to justify the search, and that in the absence of valid consent, the evidence seized from the vehicle should be suppressed.

Valid consent is that which is freely and voluntarily given. United States v. Patten, 183 F.3d 1190, 1194 (10th Cir.1999) (citation omitted). Voluntariness is a question of fact to be determined from the totality of all the circumstances. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041. A court makes this determination without presuming the consent was voluntary or involuntary. United States v. Hernandez, 93 F.3d 1493, 1500 (10th Cir.1996).

For this exception to apply, the government must prove by a preponderance of the evidence that consent was freely and voluntarily given. United States v. Soto, 988 F.2d 1548, 1557 (10th Cir.1993). The government does not discharge its burden "by showing no more than acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The government first "must present `clear and positive testimony that consent was unequivocal and specific and freely and intelligently given.'" United States v. Pena, 143 F.3d 1363, 1367 (10th Cir.) (quoting United States v. Angulo-Fernandez, 53 F.3d 1177, 1180 (10th Cir.1995)), cert. denied, 525 U.S. 903, 119 S.Ct. 236, 142 L.Ed.2d 194 (1998). The government also must prove that the officers used no implied or express duress or coercion in obtaining the consent. Id. This determination is made considering the totality of the circumstances. Schneckloth, 412...