U.S. v. Cervine, 00-40024-21-SAC.

• Decision Date: 04 September 2001
• Docket Number: No. 00-40024-21-SAC.,00-40024-21-SAC.
• Citation: 169 F.Supp.2d 1204
• Parties: UNITED STATES of America, Plaintiff, v. John J. CERVINE, a/k/a "Chief," Defendant.
• Court: U.S. District Court — District of Kansas

169 F.Supp.2d 1204

UNITED STATES of America, Plaintiff, v. John J. CERVINE, a/k/a "Chief," Defendant.

No. 00-40024-21-SAC.

United States District Court, D. Kansas.

September 4, 2001.

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MEMORANDUM AND ORDER

CROW, Senior District Judge.

This case comes before the court on defendant John J. Cervine's motion to suppress evidence derived from a traffic stop on March 11, 2000, and all statements he made on that date. The parties presented their positions in memoranda filed with the court and in oral arguments and evidence submitted in a hearing conducted on July 26, 2001.

FACTS

In the latter half of 1999, state and federal agents were investigating several individuals for their possible involvement in the production and trafficking of methamphetamine in southeast Kansas. Preliminary information identified Johnny Shane Wright as a methamphetamine manufacturer and Timothy Cline as a customer and a supplier of pseudoephedrine for Wright.

Based upon information including wiretaps of telephone calls on March 7th and 11th, 2001 between Cervine and Timothy Cline, DEA agents believed Cervine, a Kentucky resident, was involved with Cline in trafficking illegal drugs. On March 11, 2000, DEA agents observed Cervine's truck, which was hauling a motorcycle, arrive at Biker's Dream, Cline's shop in Baxter Springs, Kansas. Approximately five hours later Cervine left in his truck with the motorcycle, followed surreptitiously by DEA agents.

Thereafter, Cervine drove in a manner officers thought to be counter-surveillance. DEA agents contacted the Missouri Highway Patrol for assistance, told them there was a "very good chance that [Cervine's vehicle] would be transporting drugs," (Ryan testimony p. 126, and instructed them to stop Cervine for any traffic violation they observed and to try to obtain his consent to search the vehicle. The Highway Patrol called its canine unit, and placed it on stand by for a quick response time in the event it were needed.

Missouri State Highway Patrol officers stopped Cline while driving on a four lane highway divided by a median because they had observed his vehicle cross the line that separates the driving lane on the right from the passing lane on the left one time for approximately two seconds before returning to the right lane. This observation was made near Rogersville, Missouri, approximately two minutes after the Troopers had moved up into position to watch Cervine for a traffic violation.

At the evidentiary hearing, Cervine admitted the left tires of his vehicle could have crossed the center line, and that he does not dispute the testimony by Troopers that they did so. It was cold, windy, and dark at the time.

Trooper Mease approached the driver's side of the vehicle, and Trooper Stuart approached the passenger's side. Two female passengers were in the vehicle. Trooper Mease asked for Cervine's license and advised him that he had been pulled over for traveling over the center line. Cervine produced a Kentucky driver's license, and said that the trailer he was towing did not have enough tongue weight and was causing his truck to swerve.

Trooper Mease then asked Cervine to come with him to his patrol car, as is this trooper's habit. Cervine complied. In the patrol car, Trooper Mease asked Cervine if he had anything illegal in his truck. Cervine said he did not, asked if the troopers wanted to search it, and said that they could go ahead and search it. Trooper Mease asked if Cervine would mind if he searched his vehicle, and Cervine replied that he would not mind.

The two troopers then approached the vehicle, and saw that the vehicle was cluttered with clothes and other items. The troopers believed that it would not be safe to remove the females from the truck onto the highway in that weather for the length of time necessary to do a search, and believed it would be quicker and safer to call the canine unit.

Troopers then returned to the patrol car to call the canine unit which was off duty, but had been placed on stand by for purposes of this stop. The canine unit was approximately five miles from the location of the traffic stop. Defendant and his passenger testified that they were detained for approximately three hours before the drug dog arrived. The government says the dog arrived about thirty minutes after Cervine was stopped.

When the canine unit arrived, the handler prepared the dog, and within a few minutes of its arrival the drug dog alerted to the console area of the pickup where methamphetamine and marijuana were found packaged in vacuum sealed packages. Trooper Mease seized the contraband, walked back and placed Cervine under arrest, and read him his Miranda rights from a card he maintains for this purpose. Trooper Mease asked Cervine whether he understood those rights, and Cervine said that he did. When asked whether he wanted to talk to Trooper Mease, Cervine said that he had nothing to say at that time.

Cervine was then transported to Troop D headquarters, where he told Sergeant Banasik that he had already been advised of his rights. Sergeant Banasik again informed Cervine of his Miranda rights and Cervine stated that he understood them. Sergeant Banasik asked whether Cervine was willing to answer some questions, and he responded affirmatively. During his interrogation by Sergeant Dan Banasik, Cervine stated that the drugs may have been placed in the vehicle without his knowledge as some sort of a joke or in retribution for something, and admitted that he'd given troopers consent to search his vehicle. Cervine answered some questions and declined to answer others. Additional facts are included in the analysis below.

Initial Stop

Defendant contends that his single incident of drifting out of the right lane into the passing lane for traffic flowing in the same direction did not give the troopers probable cause to believe a traffic law had been violated.

Governing Law

The Fourth Amendment protects individuals from unreasonable searches and seizures. See U.S. Const. amend IV. An unconstitutional seizure may render an otherwise constitutional search invalid under the Fourth Amendment if the search resulted from the illegal seizure or detention. United States v. Miller, 84 F.3d 1244, 1250 (10th Cir.), cert. denied, 519 U.S. 985, 117 S.Ct. 443, 136 L.Ed.2d 339 (1996), overruled on other grounds, United States v. Holland, 116 F.3d 1353, 1357-59 (10th Cir.), cert. denied, 522 U.S. 902, 118 S.Ct. 253, 139 L.Ed.2d 181 (1997), overruled in part on other grounds, Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). As established by Supreme Court precedent, there are three general types of police-citizen encounters: "(1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity and (3) arrests, [which are] the most intrusive ... and [are] reasonable only if supported by probable cause." United States v. Davis, 94 F.3d 1465, 1467-68 (10th Cir.1996) (citations omitted).

A routine traffic stop is a seizure under the Fourth Amendment. United States v. West, 219 F.3d 1171, 1176 (10th Cir.2000). Analogous to investigative detentions, routine traffic stops are analyzed under the principles stated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.1998). The reasonableness of an investigative detention is a dual inquiry: (1) "whether the officer's action was justified at its inception," and (2) whether the officer's action "was reasonably related in scope to the circumstances that first justified the interference." United States v. Burch, 153 F.3d 1140, 1141 (10th Cir.1998) (quotation omitted); see Terry, 392 U .S. at 20, 88 S.Ct. 1868.

For purposes of the first prong, "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." United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995) (en banc), cert. denied, 518 U.S. 1007, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996); accord Whren v. United States, 517 U.S. 806, 818, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The officer's subjective motives for stopping the vehicle are irrelevant under Fourth Amendment analysis. See Whren, 517 U.S. at 813, 116 S.Ct. 1769; Botero-Ospina, 71 F.3d at 787. The "sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated `any one of the multitude of applicable traffic and equipment regulations' of the jurisdiction." Botero-Ospina, 71 F.3d at 787.

Shortly after the en banc decision in Botero-Ospina, a Tenth Circuit panel in United States v. Gregory, 79 F.3d 973 (10th Cir .1996), held under the facts presented that a single, isolated instance of veering into the emergency lane did not violate Utah law and did not create probable cause to make a traffic stop. The panel discussed that their interpretation of the Utah statute was consistent with Utah case law. The panel also noted that the motorist was driving a U-Haul truck on a winding road through mountainous terrain under windy weather conditions. "These facts lead us to conclude that the single occurrence of moving to the right shoulder of the roadway which was observed by Officer Barney could not constitute a violation of Utah law and therefore does not warrant the invasion of Fourth Amendment protection." 79 F.3d at 978.

On several subsequent occasions, the Tenth Circuit has had no difficulty distinguishing Gregory or limiting the decision to its unique facts. In United States v. Dunn, 133 F.3d 933, 1998 WL 8227 (10th Cir. Jan. 12, 1998) (Table), the panel was presented with the scenario where...