U.S. v. Mercado-Nava

• Decision Date: 12 April 2007
• Docket Number: No. 06-40154-01-SAC.,06-40154-01-SAC.
• Citation: 486 F.Supp.2d 1271
• Parties: UNITED STATES of America, Plaintiff, v. Rafael MERCADO-NAVA, Defendant.
• Court: U.S. District Court — District of Kansas

486 F.Supp.2d 1271

UNITED STATES of America, Plaintiff, v. Rafael MERCADO-NAVA, Defendant.

No. 06-40154-01-SAC.

United States District Court, D. Kansas.

April 12, 2007.

COPYRIGHT MATERIAL OMITTED

Randy M. Hendershot, Office of United States Attorney, Topeka, KS, for Plaintiff.

Marilyn M. Trubey, Office of Federal Public Defender, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

This case comes before the court on two suppression motions filed by the defendant, which the government opposes. An evidentiary hearing was held on March 14, 2007, at which the sole evidence offered was the testimony of Trooper Epperly, whom the court finds to be a credible witness.

Facts

On December 9, 2006, defendant was driving a tractor-trailer on Interstate 70 in Wabaunsee County, Kansas. Kansas Highway Patrol Trooper Clint Epperly had placed signs on the highway indicating a drug check lane was ahead and that drug dogs would be in use, thinking that commercial truckers hauling drugs might avoid the checklane. Defendant did not avoid the checklane, but pulled into the scale house a little after 12:00 a.m. Trooper. Epperly closed the scale house, had defendant pull to the side, and asked him to gather his paperwork and meet the trooper in the scale house. Defendant complied.

Trooper Epperly found defendant to be very talkative, overly friendly and sweating, all of which he found to be unusual in mid-winter and believed to be indicia of nervousness. He learned that defendant was from Phoenix and his truck was from California, which the trooper considered to be drug source areas. He noticed that defendant's trucking company was on a DEA watchlist of companies having prior drug involvement, and that it had a relatively high DOT number, which indicated a recently-formed company.

After reviewing defendant's paperwork and finding it in order, the trooper inspected the truck. He did so for the purpose of complying with his CVSA certification requirement to inspect 50 commercial vehicles a year, as well as for purposes of criminal interdiction. Trooper Epperly is aware of an increasing use of common carriers for drug trafficking, after September 11th.

When he entered defendant's cab, he noticed a "very strong" odor of bondo and paint, which he described as "overwhelming." Trooper Epperly knew that bondo, a putty filler, was commonly used to help create concealed compartments, and believed that some type of body work had recently been done on the cab for purposes of concealing or furthering illegal activity.

Trooper Epperly then inspected the outside of the cab. When he looked underneath the cab, he saw that the center of its floor had been lowered, forming an aftermarket concealed compartment in its undercarriage. He is able to distinguish between natural compartments manufactured on tractor trailers and concealed compartments added later, and knows of no legitimate, non-criminal reason for the latter. Trooper Epperly believed at that point that defendant was engaging in criminal activity, but desired to wait for a back-up officer. He called for back-up then finished his truck inspection to allow time for the back-up officer to arrive.

Upon completion of the inspection, Trooper Epperly returned defendant's paperwork to him, told him he was free to leave, then asked if he could ask defendant more questions, to which defendant agreed. When asked if there were any drugs in the vehicle, defendant gave a "typical response," stating, "Not that I know of." Trooper Epperly then asked for permission to search the truck, and defendant consented. In so doing, Trooper Epperly did not use a command voice, touch the defendant, put his hand on his gun, or otherwise attempt to coerce the defendant.

After Lieutenant Albers arrived, Trooper Epperly entered the cab and pulled back the carpet, revealing the aftermarket alterations and a concealed compartment. He then handcuffed defendant and retrieved and deployed his drug detection dog, Ranger, who gave a positive indication on the interior of the cab. Trooper Epperly then opened the concealed compartment under the truck cab and found approximately 18 kilograms of cocaine hidden therein.

Trooper Epperly immediately arrested the defendant, found two cell phones on defendant's person, and seized them contemporaneously with his arrest. Trooper Epperly downloaded the memory of one cell phone and someone else downloaded the memory of the other, also contemporaneously with defendant's arrest. DEA agents subsequently interviewed defendant and apparently obtained incriminating statements from him, which defendant seeks to suppress.

Motion to Suppress Drug Evidence and Statements

Counsel for defendant seeks to suppress all evidence of the cocaine found under the truck cab and defendant's statements, asserting that Trooper Epperly engaged in racial profiling and conducted an illegal, non-consensual search.

Racial profiling

Defendant asserts that Trooper Epperly "singled him out because he is Hispanic," Dk. 15, p. 3, apparently asserting that the initial stop and/or his detention was based on racial profiling. Defendant initially stopped his tractor-trailer on his own volition, but the trooper would have been fully justified in stopping him for no reason other than the trooper's desire to do a commercial truck check on the vehicle. See United States v. Rios-Pinela, 2006 WL 2710330, *4 (D.Kan. Sept. 20, 2006). The fact that the trooper asked defendant to exit his vehicle and enter the scale house with his papers is a de minimus request, which is a normal incident of a commercial truck check.

Defendant has the burden to show that the officer knew defendant's race or skin color before deciding to stop or detain him, and that his decision was motivated in part by defendant's race or skin color. See United States v. Aliperti, 2002 WL 1634440, *3 (D.Kan.2002); United States v. Villanueva, 157 F.Supp.2d 1184, 1190 (D.Kan.2001); Rios-Pinela, 2006 WL 2710330. No evidence was presented tending to show that defendant's race played any part in the trooper's decision to initially stop defendant or to detain him and question him about the truck. Accordingly, this theory fails.

Consent

Defense counsel contends that defendant never consented to a search of the truck, but that if he did, it was involuntary. No evidence was presented in support of this assertion. Instead, Trooper Epperly's testimony is sufficient to firmly convince the court that defendant freely and voluntarily consented to the search of his vehicle.

Additionally, inspections of commercial vehicles do not require consent and are not premised on an officer's reasonable suspicion that a specific individual is involved in a traffic offense or in criminal activity. Instead, "[a] regulatory search is justified if the state's interest in ensuring that a class of regulated persons is obeying the law outweighs the intrusiveness of a program of searches or seizures of those persons." United States v. Seslar, 996 F.2d 1058, 1061 (10th Cir.1993). See United States v. Herrera, 444 F.3d 1238, 1246 (10th Cir.2006); State v. Williams, 8 Kan.App.2d 14, 20, 648 P.2d 1156 (1982). This court has recently held that the Kansas regulatory scheme satisfies the applicable test, see United States v. Rios-Pinela, 2006 WL 2710330 (D.Kan. 2006). Accordingly, no Fourth Amendment violation can be shown by the trooper's regulatory search of defendant's commercial vehicle.

Even absent the regulatory justification for this search, Trooper Epperly had probable cause to believe that defendant was engaged in criminal activity, prior to the vehicle search. He knew defendant's trucking company was on a DEA watchlist of companies having prior drug involvement, and that it had a relatively high DOT number. He noticed that defendant was overly friendly, very talkative, and sweating. He saw that defendant was from Phoenix and his truck was from California, which he considered to be drug source areas. He smelled a strong odor of putty and paint inside the truck, and viewed an alteration to the undercarriage of the truck, which led him to believe that the floor of the cab had been dropped for purposes of concealing a compartment to be used for illegal activity. These factors collectively formed probable cause that defendant was engaged in criminal activity, sufficient to justify the search¹ of the hidden compartment in which drugs were found. See United States v. Orrego-Fernandez, 78 F.3d 1497, 1502 -1505 (10th Cir.1996).

In short, no valid basis appears from the record for suppressing the cocaine or defendant's statements, which are alleged to be the fruit of the illegal search of the truck.

Motion to Suppress Cellular Telephone Contents

Defense counsel contends that two of defendant's cellular telephones were illegally searched without a warrant, and that the search was remote in time or place from the arrest, citing United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). The government counters that the phones were legally searched incident to arrest.

The sole evidence regarding this issue is that two cellular telephones were seized from defendant's person, without a warrant and without consent, contemporaneously with defendant's arrest, and their memories were downloaded at that time, before defendant was processed or booked. No evidence suggests that the contents of the phones were protected by a password or that the information retrieved by the troopers consisted of anything other than stored numbers of outgoing and incoming calls.

Standing

The government has raised the issue of defendant's standing to contest the search of the cell phone. "It is the defendant's burden to establish standing to challenge a fourth amendment violation." United States v. Dewitt, 946 F.2d 1497, 1499-1500 (10th Cir.1991), "A defendant may not challenge an allegedly unlawful search or seizure unless he demonstrates that his own constitutional...