U.S. v. Garcia
| Decision Date | 27 April 1999 |
| Docket Number | No. 98-40113-01-SAC.,98-40113-01-SAC. |
| Citation | 52 F.Supp.2d 1239 |
| Parties | UNITED STATES of America, Plaintiff, v. Victor M. GARCIA, Defendant. |
| Court | U.S. District Court — District of Kansas |
Anthony W. Mattivi, Office of United States Attorney, Topeka, KS, for plaintiff.
David J. Phillips, Marilyn M. Trubey, Office of Federal Public Defender, Topeka, KS, for defendant.
On December 1, 1998, the grand jury returned a superceding indictment charging the defendant with two counts of violating federal drug trafficking laws. In count 1 the defendant is charged with possession with intent to distribute 214 grams of methamphetamine. In count 2 the defendant is charged with possession with intent to distribute 1766 grams of a mixture or substance of amphetamine. According to the government's proffer, the narcotics were seized during a search of the vehicle operated by the defendant — a vehicle which had been stopped for speeding.
On December 22, 1998, this court entered a memorandum and order denying the relief sought in Garcia's motion to review the order of detention. See (Dk.25). See United States v. Garcia, 1998 WL 1054231 (D.Kan. Dec. 22, 1998).1 On February 19, 1999, this court entered a memorandum and order denying the defendant's "Motion and Memorandum for Leave to Issue Subpoena Requiring Pretrial Production of Documents Pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure" (Dk.28). See United States v. Garcia, 1999 WL 318363 (D.Kan. Feb. 19, 1998) ().
This case comes before the court upon the following pretrial motions filed by the defendant:
1) Motion to Preserve Evidence (Dk.9).
2) Motion and Memorandum in Support of Motion to Suppress Evidence (Dk.30).
3) Motion to Suppress Statement (Dk.29).
4) Motion to Strike (Dk.36).2
The government filed a consolidated response opposing the defendant's motion to suppress but its response does not mention or respond to the defendant's "Motion to Preserve Evidence." See (Dk.31). The government subsequently filed a response to the defendant's motion to preserve evidence. See (Dk.35).
The defendant seeks an order compelling "the proper custodian as may be applicable, to preserve any and all tape recording of radio transmissions, dispatches and/or telephone calls in any way relating to the above-named accused who was stopped by law enforcement officers on October 3, 1998, in Lincoln County, Kansas." The defendant also seeks an order compelling Kansas Highway Patrol Troopers DeVore and Heim, and any other law enforcement officers involved in the stop and arrest of Mr. Garcia to preserve their field notes and any draft reports prepared in this matter, and to furnish defense counsel with copies of same.
The government's consolidated responses to the defendant's pretrial motions makes no reference to this motion. However, on February 22, 1999, the government filed a response to this motion. As to the tape recordings, the government indicates that it will provide those tapes if they still exist. If they do not still exist, they obviously cannot be preserved. In either event, the government contends that the defendant's request to preserve the tapes should be denied as moot. The government opposes an order requiring production of field notes and draft reports, arguing that those items are not discoverable under Fed.R.Crim.P. 16 or Jencks. The government also notes the defendant's failure to comply with the requirements imposed by this court's Criminal Procedural Guidelines for filing discovery requests.
In light of the government's response, this motion is denied as moot.
The court orders the government's counsel to direct the agents involved in this case not to destroy any field notes or draft reports compiled in this case. As for whether any of the field notes, draft reports or other documents possessed by the government constitute statements under the Jencks Act, 18 U.S.C. § 3500, the court expects the government will review the same and apply the tests as outlined in United States v. Jackson, 863 F.Supp. 1449, 1456-58 (D.Kan.1994), aff'd, 76 F.3d 1145 (10th Cir.1996), and United States v. Jackson, 850 F.Supp. 1481, 1507-08 (D.Kan.1994). Should the government have a serious question concerning whether any of the notes or reports have been adopted by the witness, the government will submit the same for in camera inspection.
Garcia seeks an order suppressing evidence seized from the vehicle that he was driving on October 3, 1998. The defendant's motion to suppress essentially has two components. First, the defendant contends that he was not unlawfully speeding and therefore the initial stop was unlawful. The defendant contends that the stop was racially motivated and therefore a violation of the Equal Protection Clause. Second, in the event that the court finds probable cause to stop the vehicle, the defendant contends that his consent to search his vehicle was not voluntary, primarily because he was unlawfully detained after receiving the verbal warning for speeding, that he was not told he was free to go on his way, and that Trooper DeVore wanted to check the vehicle first.
The government's responds, opposing the defendant's motion. The government contends that the initial stop of the vehicle for speeding and changing lanes without a turn signal was proper. The government contends that under the circumstances, the detention of the defendant was proper. As to the length of the stop, the government contends that given the facts and circumstances known to Trooper DeVore, the forty minutes between the initial stop and the search of the vehicle was reasonable.
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89, 95 (1996). There are three general types of citizenpolice encounters: (1) consensual encounters that are not Fourth Amendment seizures as they involve a person's voluntary cooperation with an officer's non-coercive questioning; (2) investigative detentions which are Fourth Amendment seizures justified only if there is reasonable suspicion that the person has committed or is committing a crime; and (3) arrests which are Fourth Amendment seizures characterized by highly intrusive or lengthy detention and justified only if there is probable cause to believe that the person has committed or is committing a crime. United States v. Seslar, 996 F.2d 1058, 1060 (10th Cir.1993). Because the temporary stop of an automobile is considered a seizure of "persons," it must not be "unreasonable." Whren, 116 S.Ct. 1769, 135 L.Ed.2d at 95. The stop is "reasonable" if the law enforcement officer has "probable cause to believe that a traffic violation has occurred." Whren, 116 S.Ct. 1769, 135 L.Ed.2d at 95 (citations omitted).3
The detention associated with the traffic stop also "must be `reasonably related in scope to the circumstances which justified the interference in the first place.'" United States v. Anderson, 114 F.3d 1059, 1063 (10th Cir.1997) (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Such a detention "usually must `last no longer than is necessary to effectuate the purpose of the stop,' and `[t]he scope of the detention must be carefully tailored to its underlying justification.'" United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). "An officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation." United States v. Hunnicutt, 135 F.3d at 1349; see United States v. Mendez, 118 F.3d 1426, 1429 (10th Cir.1997). "Once the officer has conducted such a check and `the driver has produced a valid license and proof that he is entitled to operate the car, [the driver] must be allowed to proceed on his way, without being subject to further delay by police for additional questioning.'" United States v. Anderson, 114 F.3d at 1064 (quoting United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.), cert. denied, 511 U.S. 1095, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994)).
There are two circumstances when detention can be lengthened by additional questioning. "First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring." United States v. Hunnicutt, 135 F.3d at 1349 (citation omitted); see also United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997). Second, further questioning unrelated to the initial stop is permissible if the initial detention is over and the encounter becomes consensual with the driver voluntarily consenting to additional questions. United States v. Mendez, 118 F.3d at 1429; see also United States v. Hunnicutt, 135 F.3d at 1349.
"An investigative detention may be expanded beyond its original purpose, however, if during the initial stop the detaining officer acquires "reasonable suspicion," of criminal activity, United States v. Jones, 44 F.3d 860, 862 (10th Cir.1995), that is to say the officer must acquire a United States v....
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