U.S. v. Arreola-Delgado
| Decision Date | 08 February 2001 |
| Docket Number | No. 00-40092-01-SAC.,00-40092-01-SAC. |
| Citation | 137 F.Supp.2d 1240 |
| Parties | UNITED STATES of America, Plaintiff, v. Armando ARREOLA-DELGADO, Defendant. |
| Court | U.S. District Court — District of Kansas |
Melody J. Evans, Office of Federal Public Defender, Topeka, KS, for Armando Arreola-Delgado.
Armando Arreola-Delgado, pro se.
Gregory G. Hough, Office of U.S. Attorney, Topeka, KS, for U.S.
The case comes before the court on the defendant's motion and amended motion to suppress all evidence obtained in the search and seizure of the defendant's car on September 29, 2000. (Dks. 26 and 28). The government submits a memorandum opposing the motions. (Dk.31). The court heard the parties' arguments and evidence on January 3, 2001, at which time the defendant moved to withdraw his amended motion and the court granted the same. The court has reviewed all matters submitted, including the two videotapes and one audiotape admitted into evidence, and has researched the relevant law. This order addresses the following issues framed in the defendant's suppression motion: (1) Whether the scope and duration of the traffic stop was reasonably related to the initial justification for the traffic stop; (2) Whether the troopers had probable cause to search the car; and (3) Whether allegations of ethnic profiling warrant scrutinizing the trooper's subjective intent in conducting this traffic stop.
Armando Arreola-Delgado is the only named defendant in a single-count indictment charging possession with the intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1).
On September 29, 2000, around 11:25 a.m., Master Trooper Charles B. Crawford with the Kansas Highway Patrol was parked near milepost 122, approximately five miles south of the interchange for Emporia, Kansas. Using a stationary radar to check the speed of northbound traffic on the Kansas Turnpike, Trooper Crawford was alerted to a gold 1995 Honda traveling 75 miles per hour ("mph") in a posted 70 miles mph zone. Earlier that same morning, Master Trooper Jim Brockman had radioed Trooper Crawford with information that Trooper Riboudeax, an off-duty Kansas Highway Patrol Trooper stationed in Wichita, Kansas, had been driving to work in a private car wearing street clothes when he passed a gold Honda with two male occupants. He observed the two males behave suspiciously and furtively by changing lanes and otherwise trying to evade him. Riboudeax followed the Honda until it entered the turnpike headed north towards Emporia. Riboudeax radioed for information on the Honda learning that it was registered to a woman in Texas who had an Hispanic name. Riboudeax eventually telephoned Trooper Brockman telling him of his encounter with the gold Honda and advising that this "might be something worth looking" into if the car came Brockman's way.
After the radar alerted to a speeding vehicle, Trooper Crawford pulled out in pursuit of the gold Honda. While gaining on it, he noticed both tires on the Honda's right side cross the white line onto the right shoulder line by approximately two feet and then move back into the driving lane. Trooper Crawford pulled in behind the Honda which had now slowed to 60 mph. Instead of stopping the car immediately and risking his new emergency lights which had been emitting a hot burning smell, Trooper Crawford followed in the hope that the Honda would exit at the upcoming Emporia interchange. A tape recording of relevant radio dispatches shows that Trooper Crawford radioed ahead to Trooper Brockman, who was at the Emporia interchange, saying he had checked a gold Honda with Texas plates for speeding and he would wait until the toll plaza to stop it because he was unsure how long his lights would work.
When the Honda did stop at the Emporia toll plaza, Trooper Crawford walked up to the driver's window telling the driver that he had been speeding and that he should pull over to the parking area on the other side of the toll plaza. Trooper Crawford moved his patrol car to the same area pulling in behind the gold Honda and activating the video camera in his car. He approached the Honda and asked the driver for his driver's license and a proof of insurance on the vehicle. The driver said he did not have a license but provided a New Mexico State Identification Card which listed his name as Benjamin Vasquez. The front seat passenger produced insurance verification from the glove box. Trooper Crawford asked Vasquez to join him in the patrol car, as they checked out the license status. While they walked back to the patrol car, Vasquez explained that he did not have a license, because he had gone to take the driver's license test and was denied a license as he needed glasses and did not have any. When Trooper Crawford noted that Vasquez was not wearing glasses now, Vasquez appeared to explain that he was just helping out the other guy with some of the driving. Trooper Crawford asked Vasquez for the passenger's name, and Vasquez said it was "Armando" but he did not know the passenger's last name. Vasquez also said that the car belonged to the passenger.
Trooper Jim Brockman was already at the Emporia toll plaza conducting a canine search of a semi-trailer truck. Since 1994, Trooper Brockman has been assigned dogs trained to detect narcotics and is currently handling his second dog, Narco, which was trained in the Fall of 1999, first certified in October of 1999, and again certified in March or April of 2000. As of September 29, 2000, Narco was properly certified and was trained to detect four different drugs, including cocaine. While Trooper Crawford spoke with the driver and then escorted him back to the patrol car, Trooper Brockman walked Narco around the exterior of the Honda. Narco alerted to the right rear portion of the car. The videotape shows Narco jerk his head abruptly near the right rear taillight and then mark boundaries in an apparent effort to locate the source of a detected scent.
Trooper Brockman returned Narco to his patrol car and went back to the gold Honda. Kneeling on the ground, he spoke to the passenger through the open driver's door. Brockman asked for the driver's name and who owned the car. The passenger said that the car belonged to him and that the driver's name was Benjamin but that he did know the driver's last name. Because the driver did not have a driver's license, Brockman asked for the passenger's driver's license. The passenger had some difficulty understanding Brockman's request for a license, but he eventually did provide one. The license identified the passenger to be Armando Arreola-Delgado. The passenger also said they were headed to Chicago in response to Brockman's question about travel plans. Trooper Brockman then took the passenger's driver's license back to his patrol car and ran a Triple I check which revealed nothing. Despite some difficulty with smelling because of allergies, Trooper Brockman detected the smell of a masking agent/air freshner emanating from the Honda.
In the meantime, Trooper Crawford was in his patrol car and had radioed dispatch for a check on the state identification card provided by the driver. Vasquez volunteered that they were headed for Chicago, and Crawford followed up with an inquiry about the purpose for going to Chicago. Because Trooper Crawford's video camera was also recording signals sent by a microphone worn by another officer working a nearby stop, the audio portion of Crawford's tape contains segments difficult to understand, particularly the statements made by Vasquez. While waiting for dispatch and the written warning citations, Vasquez asked Crawford about estimated travel times and distances for the remaining part of their trip. The dispatcher informed Trooper Crawford that the identification check showed Vasquez to have a New Mexico driver's license expiring in 2001 and that there were no restrictions on the license. As he was completing the warning citations, Trooper Crawford asked Vasquez how long he had known the passenger. Vasquez answered "two months" or longer.
When he finished with the warning citations, Crawford handed them over to Vasquez with a brief explanation. Crawford then told Vasquez that he was free to go but that they were speaking with the passenger so he should "sit tight." At this point, Crawford exited his patrol car and exchanged information with Trooper Brockman who said he was going to ask for consent to search from the passenger and car owner, Arreola-Delgado.
Trooper Brockman returned the license and registration to Arreola-Delgado and told him that "you can go" and that he was "free to go." Trooper Brockman then asked Arreola-Delgado to read a consent to search form. Brockman inquired whether he had attended school and whether he could read Spanish. Arreola-Delgado answered that he had gone to high school in Mexico. Brockman explained that the form in Spanish and English sought his consent to search the car, as the narcotics dog had alerted to the rear of the car and a search for weapons or drugs was needed. Arreola-Delgado read the form, indicated he understood what it said, and then he signed it. As this was happening, Trooper Crawford asked Vasquez if he had any belongings in the car and if there were any weapons or narcotics in the car. Vasquez answered "no."
Trooper Brockman asked Arreola-Delgado to step out of the car so they could search it and to unlock the trunk and wait with the driver. Bags were removed from the trunk, and a canine search was conducted of the car and the bags removed from it. Narco gave an aggressive indication to one bag near the left rear door of the car. The dog pushed the bag several feet, then barked and scratched at it. Trooper Brockman searched the bag but found no contraband. The videotape captures the troopers discussing that Narco smelled something but was unable to locate the source and that Narco's...
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