U.S. v. Hbaiu
| Decision Date | 26 February 2002 |
| Docket Number | No. 01-40075-01-JAR.,01-40075-01-JAR. |
| Citation | 202 F.Supp.2d 1177 |
| Parties | UNITED STATES of America, Plaintiff, v. Ahed HBAIU, Defendant. |
| Court | U.S. District Court — District of Kansas |
Randy M. Hendershot, Office of United States Attorney, Topeka, KS, for Plaintiff.
Michael S. Holland, Holland & Holland, Russell, KS, for Defendant.
MEMORANDUM ORDER GRANTING IN PART AND DENYING IN PART MOTION TO SUPPRESS
On February 11, 2002, the Court held a hearing on defendant's motion to suppress all evidence seized from the search of a U-Haul trailer and all statements made subsequent to his request for a lawyer. Having reviewed the evidence and arguments presented by the parties, the Court is now prepared to rule.
On July 16, 2001, defendant Ahed Hbaiu and Kevan Kneuker were passengers in a sports utility vehicle driven by Phillip Esposito, traveling east on I-70 in Russell County, Kansas. The vehicle was a rental car and was towing a rental U-Haul trailer. The vehicle passed Trooper Lytton parked on the eastbound shoulder. Lytton pulled into the inside lane and overtook defendant's vehicle, then changed lanes to be in front of the vehicle. Lytton testified that he ran a check on the vehicle's license tag and learned it was a California rental vehicle. He then slowed down and pulled off onto the shoulder, allowing the vehicle to pass. Then Lytton pulled into the outside lane and followed the vehicle for approximately four miles.
Hbaiu testified that as they approached the Wilson Lake exit, the men decided to "go to the lake and rest." Trooper Lytton also exited and followed them approximately ten miles to Wilson Lake. He did not use his lights or siren. Lytton turned on the patrol car's videotape but not the audio portion of the tape. Esposito did not commit any traffic violations while Lytton followed the vehicle.
At approximately 5:15 p.m., Esposito pulled off the road and parked, near the place where the road dead ended at the lake front. As the men exited the vehicle, Trooper Lytton asked them to stay in the vehicle. At this time, Lytton turned on the audio portion of the videotape and approached the vehicle.
Trooper Lytton asked the men what they were doing. Hbaiu told Lytton that they had pulled off to rest. He told the trooper that they had vacationed in California for a week and were moving his sister from California to Kansas City. Lytton asked the men for their driver licenses and the rental agreements for the vehicle and the trailer. The rental agreements indicated that the vehicle and the trailer were to be returned to California on July 19, 2001, three days later. Lytton noticed that there was only one bag in the back of the vehicle, and no other luggage.
Lytton told the men to wait, and returned to the patrol car with the licenses and rental agreements. Neither of the rental agreements was in the name of any of the three men. Dispatch informed Lytton that Esposito's license was suspended and that he had a criminal record. Hbaiu gave Lytton a driver's license that Lytton suspected was not Hbaiu's. This license later proved to be the license of Hbaiu's brother.
After waiting approximately 20 minutes for backup to arrive, Trooper Lytton returned to the vehicle and asked permission to search the trailer, which was granted. Lytton did not return the driver's licenses or rental agreement. Hbaiu got out of the vehicle and spent over ten minutes searching for the key to the trailer; Hbaiu did not find or present the key. Lytton asked whether or not the men had any contraband, weapons or drugs in the car. Hbaiu accused Lytton of racial profiling, whereupon Lytton made statements about going to jail and ordered him back into the vehicle.
At the time of this incident, Trooper Lytton was a relatively new trooper, with only three months of experience patrolling alone. He contacted Trooper Rule, a more experienced trooper, and they conferred by cell phone. Trooper Rule told Trooper Lytton that he thought the circumstances were suspicious enough to justify temporary detention, until Rule could bring his drug dog to the scene. Trooper Lytton then asked the men if they would mind staying so a drug dog could sniff the trailer; the men responded he could bring "sixty dogs to sniff" since there was nothing in the trailer. At the time he made this request, Lytton still had custody of the men's driver's licenses and the rental agreements. Lytton denied the men's request to go down to the lake, but allowed them to play soccer while waiting for Trooper Rule and the dog to arrive.
By the time the Trooper Rule and the drug dog arrived, eighty minutes had elapsed since Esposito stopped the vehicle there at Wilson Lake. Rule testified that he drove directly to Wilson Lake from where he had been working on a search warrant, arriving at approximately 6:35 p.m. Trooper Lytton gave Rule driving directions to the scene. Lytton acknowledged that there was a shorter route, on gravel roads, but he believed Rule could arrive as quickly on the paved route that Lytton advised Rule to take. This area of western Kansas is not heavily inhabited and the troopers patrol a wide area. The nearest drug dog was the dog with Trooper Rule.
Trooper Rule and his drug dog, Budkis, are certified in drug detection and Rule is also a certified instructor in drug dog detection. Rule testified that Budkis had a 90% reliability rate in training and street utilization. Rule further testified that Budkis was a "passive" indicating dog, meaning it would sit when it detected drugs; in contrast, an "aggressive" indicating dog barks and scratches when it alerts. Rule testified and the videotape depicts, that Rule had Budkis walk around the trailer, and that Budkis alerted, by sitting at the rear corner of the trailer. The audio portion of the tape was off briefly, during this critical time. There were other short segments of the tape where the audio portion was off, or according to Trooper Lytton, was malfunctioning. Hbaiu contends that Rule ordered Budkis to "sit;" both Rule and Lytton deny this. Rule also denied Hbaiu's accusation that Rule had directed Budkis with a hand signal. The videotape does not depict Rule giving Budkis a hand signal.
The audio portion of the tape commenced again shortly after Budkis alerted to the trailer, but before the troopers opened the trailer. Review of the videotape reveals that Hbaiu told Trooper Lytton "we want a lawyer here." Lytton testified that if he had heard Hbaiu's request for a lawyer, he would have stopped any questioning. Although Lytton testified that he did not hear Hbaiu's request at that time, the videotape impeaches Lytton's testimony. Lytton clearly responded to Hbaiu's request, "we want a lawyer here," by stating, "I haven't arrested you yet." Lytton and Rule testified that they could not have heard Hbaiu's request for a lawyer, because all three men were yelling and creating a commotion at that time. But, the videotape reveals that when Hbaiu made the request, he was the only one speaking. There was no commotion and no yelling until later, when Kneuker became upset because he was having a diabetes-related episode.
The troopers waited approximately 15 minutes for someone to bring bolt-cutters to cut the lock on the trailer. When the men tried to sit in the vehicle, one of the troopers told them to get back in front of the car or "you're going to jail." While waiting, the men continued to argue with the troopers about whether Trooper Rule told the dog to sit. Trooper Lytton told the men that "you guys better get your stories straight before you go to court."
When the bolt-cutters arrived at approximately 7:00 p.m., the troopers opened the trailer and discovered ketamine. The troopers place Hbaiu under arrest after the trailer was opened, but Hbaiu was not Mirandized until approximately one hour later, after he was transported to the sheriff's office. Trooper Lytton read Hbaiu his rights; both Lytton and Trooper Rule were present for questioning. Hbaiu testified that he did not reiterate his request for a lawyer at that time. Lytton and Rule testified that Hbaiu did not request a lawyer after being read his rights, and that he waived his rights.
During the interrogation, Hbaiu told the troopers that he and the other men were paid $5,000 each to transport the trailer from California to New York, where they were to leave it parked on a street near Columbia University with the keys in the ignition. But at the suppression hearing, Hbaiu testified that he made up this story out of fear the other men would collaborate a false story against him. Hbaiu also testified that the story about moving his sister to Kansas City was not true; his sister lives in southern California.
Hbaiu is charged with possession with intent to distribute approximately 2100 lbs. of Ketamine in violation of 21 U.S.C. 841(1)(1).
The government contends that Hbaiu does not have standing to contest the search because he was not the driver, owner, nor the renter of the vehicle or trailer. In fact, none of the occupants were authorized drivers under the rental agreement.
It is well established that passengers have no reasonable expectation of privacy in a vehicle when the passenger neither asserts a proprietary or possessory interest in either the vehicle or its contents.1 However, it is recognized that persons do not shed their individual interests in being free from unlawful seizures merely because they are traveling as passengers in automobiles.2 Therefore, unlike a driver or owner of a vehicle, as a passenger, Hbaiu may not directly challenge the search of the vehicle.3 Instead, Hbaiu may only challenge his detention. Hence, the issue for the court is two-fold: (1) whether Hbaiu was unlawfully detained; and (2) whether the seized evidence and the statements obtained were the fruit of the unlawful detention.4
The Fourth Amendment protects individuals from unreasonable...
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