U.S. v. Harmon

• Decision Date: 06 May 2011
• Docket Number: No. CR 10–1760 JB.,CR 10–1760 JB.
• Citation: 785 F.Supp.2d 1146
• Parties: UNITED STATES of America, Plaintiff,v.Michael HARMON, Defendant.
• Court: U.S. District Court — District of New Mexico

785 F.Supp.2d 1146

UNITED STATES of America, Plaintiff,

v.Michael HARMON, Defendant.

No. CR 10–1760 JB.

United States District Court, D. New Mexico.

May 6, 2011.

Kenneth J. Gonzales, United States Attorney, James R.W. Braun, Assistant United States Attorney, Albuquerque, NM, for the Plaintiff.Charles E. Knoblauch, Assistant Federal Public Defender, Albuquerque, NM, for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Suppress and Memorandum in Support Thereof, filed January 14, 2011 (Doc. 40)(“Motion”). The Court held a hearing on March 28, 2011. The primary issues are: (i) whether Defendant Michael Harmon has standing to contest the search of the vehicle he was driving; (ii) whether the traffic stop that New Mexico Department of Public Safety Motor Transportation Division Officer Hermilo Lucero initiated was a legal stop; (iii) whether the Court should suppress evidence of the contraband Lucero discovered in the vehicle's spare tire, because Harmon—who is an African–American—alleges that race was the motivating, if not only, factor in Lucero's decision to stop him; (iv) whether Harmon voluntarily consented to the search of the vehicle; and (v) whether Lucero's search exceeded the scope of Harmon's consent. The Court will deny Harmon's motion. The Court finds that Harmon has standing to contest the search of the vehicle, because the registered owner gave him permission to drive the vehicle. The Court finds that the traffic stop was legal, because Lucero had reasonable suspicion that Harmon violated one of New Mexico's traffic regulations. The Court finds that Lucero did not stop Harmon because of his race. Even if one of Lucero's motives in stopping Harmon was Harmon's race, Lucero's subjective motives for conducting the stop are irrelevant to whether the stop was reasonable under the Fourth Amendment of the United States Constitution, and the Court is not convinced that suppression is an appropriate remedy for an Equal Protection Clause violation. Given the totality of the circumstances, the Court finds that Harmon voluntarily consented to the search of the vehicle. The Court finds that Lucero's search did not exceed the scope of Harmon's consent, because Lucero had probable cause to search the spare tire.

FACTUAL BACKGROUND

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed.R.Crim.P. 12(d)(“When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for purposes of rule 12(d). The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269–70 (10th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269.

1. On Friday, May 14, 2010, Lucero was patrolling Interstate 40 (“I–40”) east of Grants, New Mexico. See Transcript of Hearing at 4:10–17, 7:17–24 (taken March 28, 2011)(Braun, Lucero)(“Tr.”).¹

2. At approximately 8:59 a.m., at mile marker 90 on I–40, Lucero stopped a vehicle with Arizona license plate number 265JPZ. See Unit Log at 1, Defendant's Exhibit B; Tr. at 7:25–3 (Braun, Lucero).

3. A plate credit detail, which was run on November 21, 2010, revealed that the plate for the vehicle with the Arizona license plate 265JPZ expired on January 31, 2004. See Plate Credit Detail at 1, Defendant's Exhibit A; Tr. at 49:13–24 (Braun, Lucero).

4. The only way to know that a vehicle with license plate 265JPZ was being driven on I–40 on May 14, 2010 is from of Lucero's unit log, where he recorded his activities, and if Lucero incorrectly input the license plate into the unit log, the plate credit detail would not be accurate to the car that Lucero stopped. See Tr. at 49:25–50:8 (Braun, Moya).

5. Section 66–3–1 of the New Mexico Statutes Annotated states: “With the exception of vehicles identified in Subsection B of this section, every motor vehicle, trailer, semitrailer and pole trailer when driven or moved upon a highway is subject to the registration and certificate of title provisions of the Motor Vehicle Code.” NMSA 1978, § 66–3–1A.

6. The penalty for driving an unregistered vehicle is a misdemeanor with a potential penalty of a “fine of not more than three hundred dollars ($300) or by imprisonment for not more than ninety days or both.” NMSA 1978, § 66–8–7B.

7. At 9:02 a.m., Lucero released the driver of the vehicle with the license plate 265JPZ with a verbal warning. See Unit Log at 2; Tr. at 42:11–24 (Knoblauch, Lucero).

8. Lucero did not see or have an opportunity to see Harmon before he allowed the driver of the first vehicle with the license plate 265JPZ to leave. See Tr. at 99:3–12 (Court, Lucero).

9. Harmon is African–American. See id. at 99:3–5 (Court, Lucero).

10. Lucero testified that he did not terminate his stop of the vehicle with the license plate 265JPZ based on seeing the vehicle Harmon was driving. See Tr. at 8:15–17 (Braun, Lucero).

11. After Lucero concluded the stop of the vehicle with license plate 265JPZ, he continued on patrol operations. See Tr. at 8:18–19 (Braun, Lucero).

12. While on patrol, Lucero approached a silver-colored Dodge Intrepid. See id. at 8:21–22 (Lucero)

13. Lucero testified that he noticed that the vehicle was weaving in its lane. See Tr. at 8:22–23 (Lucero).

14. Lucero was not sure whether the driver was intoxicated or fatigued. See id. at 8:23–24 (Lucero).

15. Lucero testified that, in the past, he has conducted traffic stops on individuals who were driving while intoxicated at 9:00 a.m. and that it would not be unusual to stop a person who was driving while intoxicated at 9:00 a.m. See id. at 10:23–11:3 (Braun, Lucero).

16. Lucero continued to follow the driver, and immediately before the driver and Lucero entered into a construction zone, the vehicle, which was traveling in the right lane, swerved, causing its front and rear passenger tires to cross over the outer white line. See Tr. at 8:24–9:1 (Lucero); id. at 9:4–10 (Braun, Lucero).

17. Lucero described the road conditions as straight and levelly paved. See id. at 9:13 –14 (Braun, Lucero)(“Q. Can you describe the road conditions for us that morning? A. It was straight and levelly paved.”).

18. Lucero testified that there was not any wind that would cause a vehicle to swerve. See id. at 9:15–17 (Braun, Lucero).

19. When Lucero saw the vehicle swerve and cross the line, he thought that the driver was likely intoxicated or fatigued. See Tr. at 10:20–22 (Braun, Lucero).

20. Section 66–7–317 of the New Mexico Statutes Annotated states:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:

A. a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety;

B. upon a roadway which is divided into three lanes a vehicle shall not be driven in the center lane except when overtaking a[nd] passing another vehicle where the roadway is clearly visible and such center lane is clear of traffic within a safe distance, or in preparation for a left turn or where such center lane is at the time allocated exclusively to traffic moving in the direction the vehicle is proceeding and is signposted to give notice of such allocation; and

C. official signs may be erected directing slow-moving traffic to use a designated lane or designating those lanes to be used by traffic moving in a particular direction regardless of the center of the roadway and drivers of vehicles shall obey the directions of every such sign.

NMSA 1978, § 66–7–317 (alteration in original).

21. The only act that Harmon did which was not safe was that Harmon crossed over the fog line—the white line—and Lucero was not sure whether Harmon was intoxicated or fatigued. See Tr. at 62:7–10 (Knoblauch, Lucero).

22. Lucero saw Harmon weaving within his lane and crossing the fog line and was not sure if Harmon was intoxicated and/or fatigued, which would make it unsafe for the innocent motoring public traveling on our highways if he was tired or intoxicated. See Tr. at 62:18–22 (Lucero).

23. Crossing the line was not unsafe. See Tr. at 63:16 (Lucero).

24. Lucero followed Harmon for thirteen miles through the construction zone. See id. at 43:9–13 (Knoblauch, Lucero).

25. Lucero did not know that Harmon was driving the vehicle or that an African–American was driving this vehicle. See id. at 99:3–8 (Court, Lucero).

26. When the vehicle and Lucero's vehicle exited the construction zone, Lucero turned on his lights and initiated a traffic stop. See id. at 9:1–3 (Lucero); id. at 13:13–18 (Braun, Lucero).

27. Lucero initiated the stop at approximately 9:12 a.m. at mile marker 103 of I–40. See Unit Log at 2.

28. Lucero had a video recorder in his vehicle; when he turned on his lights, the video recorder started recording and captured the minute before the stop. See Tr. at 11:4–16 (Braun, Lucero).

29. There is not any noticeable weaving of the vehicle during the time on the video tape. See Tr. at 45:24–46:5 (Knoblauch, Moya); id. at...