U.S. v. Olivas, 04-40119-SAC.
| Decision Date | 30 December 2004 |
| Docket Number | No. 04-40119-SAC.,04-40119-SAC. |
| Citation | 351 F.Supp.2d 1180 |
| Parties | UNITED STATES of America, Plaintiff, v. Juan Carlos OLIVAS, Defendant. |
| Court | U.S. District Court — District of Kansas |
Anthony W. Mattivi, Office of United States Attorney, Topeka, KS, for Plaintiff.
The case comes before the court on the defendant's motion to suppress (Dk.19) evidence seized during a search of the defendant's car following a traffic stop. The defendant has filed an affidavit in support of his motion. (Dk.20). The government's response (Dk.21) opposes the motion. The parties presented evidence and oral argument in support of their positions on December 14, 2004. Having reviewed all matters submitted and having researched the relevant law, the court is ready to rule on the motions.
The defendant is charged with a single count of possessing with the intent to distribute 41 kilograms of cocaine on September 14, 2004, in violation of 21 U.S.C. § 841(a)(1).
Around 2:19 p.m. on September 14, 2004, Sergeant Kelly Schneider with the Russell County Sheriff's Department, Russell, Kansas, was traveling westbound on I-70 interstate highway near milepost 195. While cresting an incline and slowing to turn around in the median, Sergeant Schneider observed a white Ford Focus traveling eastbound in the right lane. As it came over the top of the incline, the Ford Focus swerved into the left lane by one-half of its width and then moved back into the right lane. Though a stiff wind was blowing from the south, Sergeant Schneider had not seen other vehicles, not even semi-tractor trailers, swerve into different lanes, and he did not believe the wind had caused the Ford Focus to swerve to this degree. Sergeant Schneider completed his u-turn in the median and caught up with the Ford Focus. For officer safety reasons, he observed that the car had a driver and one passenger, but he could not determine the sex or race of either occupant because of the dark-tinted windows.
Sergeant Schneider activated his emergency lights and pulled over the Ford Focus for failure to maintain a single lane. He approached the stopped car on the passenger side and explained the reason for the stop. He observed that the driver appeared extremely nervous, as evidenced by fast and jumbled speech, shaking hands, squirming in the seat, short and rapid breathing, quivering voice, and avoiding eye contact. The driver provided a California driver's license and registration which identified him as Juan Carlos Olivas. Olivas said he was self-employed and owned a tree service. Olivas said they were traveling to Indianapolis, Indiana, for a wedding. Schneider recognized the defendant's stated travel plans as consistent with drug trafficking as California is a source state for illegal drugs and Indianapolis is a large destination city. Schneider also observed that Olivas remained excessively nervous even after being told that only a warning would be issued.
Schneider went to his patrol car to check the license and registration and write the warning. He telephoned Russell County Deputy Tim Bilbrey and requested his assistance at the scene. After learning the license and registration were valid, Schneider returned to the Focus just as Deputy Bilbrey was arriving. Schneider handed Olivas the license, registration and a copy of the written warning. Olivas' hands were still shaking badly. Schneider explained the warning, told the defendant to be careful, and wished them a safe trip. The break lights on the Ford Focus came on evidencing that Olivas had put the car into gear to drive away. Olivas then asked if he had to pay any money, and Schneider answered no and took a step away from and towards the rear of the car.
Based on defendant's extreme and unabated nervousness and stated travel plans, Sergeant Schneider decided to seek the defendant's consent to search the car. The video shows that Schneider moved forward but from a distance of two or three feet from the passenger window asked, "Mind if I ask you another question?" Hearing an affirmative response, Schneider leaned forward and explained that "lots of illegal contraband, like marijuana and cocaine," are transported on I-70 and then asked if the defendant was transporting any. When Olivas denied doing so, Schneider asked, "Mind if I take a look in your car?" Olivas consented, so Schneider requested Olivas to put the car into park and to exit the car with the passenger. At this point, Deputy Bilbrey stepped forward to assist with the search.
The defendant and his passenger stood in the ditch approximately ten feet from the front of the car, as Sergeant Schneider began his search. He leaned into the car and visually scanned the interior looking for a latch to open the trunk. Finding none, he took the keys and unlocked the trunk. The defendant saw the sergeant open the trunk and search it. The video does not show the defendant motioning or saying anything in objection to the search of his trunk.
Sergeant Schneider's search revealed a four-inch void in the floor of the trunk. Deputy Bilbrey who had recently purchased a Ford Focus commented that his trunk was much deeper. Sergeant Schneider knew from training and experience that secret compartments are frequently used to transport illegal contraband or money. Unable to gain immediate entry to the compartment, it was decided to arrest the defendant and passenger and transport the Ford Focus to the sheriff's department. The video shows Deputy Bilbrey standing at the rear of the Ford Focus and calling to the defendant who responded by joining the officers. Told that the car had a secret compartment, Olivas was placed under arrest and handcuffed. The passenger also was handcuffed. Both were transported to the Russell County Jail. Sergeant Schneider continued to search the trunk area. Seeking to confirm his belief that the compartment contained contraband, Schneider employed his drug detection dog who alerted to the trunk area.
The Ford Focus was driven to the Sheriff's office and a hole was drilled into the secret compartment. On the end of the drill bit was a white substance which field-tested positive for cocaine. The deputies eventually pried open the secret compartment and found 41 kilo-sized packages of white powder weighing a total of 107.1 pounds.
The defendant first contends that Sergeant Schneider did not have probable cause or reasonable suspicion for making the traffic stop. The defendant next argues that his consent was the product of an illegal detention based on an unlawful traffic stop and was not knowing and voluntary. The defendant challenges the search of the trunk as exceeding the scope of his consent. Finally, the defendant argues Sergeant Schneider lacked reasonable suspicion to employ his drug detection dog.
A traffic stop is a seizure under the Fourth Amendment. United States v. Taverna, 348 F.3d 873, 877 (10th Cir.2003). Akin to investigative detentions, routine traffic stops are analyzed under the investigative detention principles outlined 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 a stop 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).
In deciding the validity of the initial stop, the court looks at whether it was "objectively justified." United States v. Botero-Ospina, 71 F.3d 783, 788 (10th Cir.1995) (en banc), cert. denied, 518 U.S. 1007, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996). To be valid, the officer must have either "`(1) probable cause to believe a traffic violation has occurred, or (2) a reasonable articulable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.'" United States v. Zubia-Melendez, 263 F.3d 1155, 1160 (10th Cir.2001) (quoting United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir.1999)). The constitutional reasonableness of a traffic stop does not depend on the officer's actual motive in conducting the stop. Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In short, the initial traffic stop is reasonable if the officer observed a traffic violation or has reasonable articulable suspicion that a traffic or equipment violation occurred. United States v. Nichols, 374 F.3d 959, 964 (10th Cir.2004), petition for cert. filed, 73 U.S.L.W. 3297, ___ U.S. ___, 125 S.Ct. 509, 160 L.Ed.2d 381 (2004).
Sergeant Schneider's testimony that he observed the Ford Focus swerve across the centerline by almost one-half of its width before returning to the right lane1 was sufficient probable cause for a violation of K.S.A. § 8-1522, which requires a vehicle to be driven "as nearly as practicable entirely within a single lane." In United States v. Ozbirn, 189 F.3d 1194, 1198 (10th Cir.1999), the court held that "under the language of the Kansas statute, when an officer merely observes someone drive a vehicle outside the marked lane, he does not automatically have probable cause to stop that person for a traffic violation." Rather, "the court must conduct a fact-specific inquiry into `all the surrounding facts and circumstances to determine whether the officer had the probable cause necessary to justify the stop.'" United States v. Zubia-Melendez, 263 F.3d 1155, 1161 (10th Cir.2001) (quoting Ozbirn, 189 F.3d at 1198). While the testimony and video establish there was a stiff wind, Sergeant Schneider testified that other vehicles were not weaving outside their lanes and that the wind could not account for the defendant's degree of swerving. The video does not...
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