U.S. v. Triska, Criminal Action No. 07-40018-01-KHV.
| Decision Date | 28 August 2008 |
| Docket Number | Criminal Action No. 07-40018-01-KHV. |
| Citation | 574 F.Supp.2d 1208 |
| Parties | UNITED STATES of America, Plaintiff, v. David L. TRISKA, Defendant. |
| Court | U.S. District Court — District of Kansas |
Jason R. Coody, Office of United States Attorney, Topeka, KS, for Plaintiff.
On March 21, 2007, a grand jury indicted David L. Triska with possession with intent to distribute some 616 kilograms of a mixture and substance containing marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). This matter is before the Court on defendant's Motion To Suppress All Evidence Derived From An Unlawful Search And Seizure (Doc. # 17) filed July 18, 2007. On March 25, 2008, the Court held an evidentiary hearing. The parties have submitted supplemental briefing. For reasons stated below, the Court overrules defendant's motion.
Based on testimony and exhibits received at the hearing, the Court finds the following facts:
On March 6, 2007 at approximately 8:25 a.m., Trooper Christopher Nicholas of the Kansas Highway Patrol observed a 2004 Ford F250 pickup truck on Interstate 70 near Maple Hill, Kansas. The truck, which had an Arizona license plate, was pulling a homemade two-axle flatbed trailer with an Idaho license plate. Trooper Nicholas is authorized to perform commercial vehicle safety inspections. He understood that the F250 truck had a gross vehicle weight rating of 8,800 pounds and he thought that the flatbed trailer had a gross weight of at least 1,500 pounds so that the total gross weight rating of the vehicle and trailer was 10,001 pounds or more.1 Trooper Nicholas noticed three large square objects on the trailer which were marked as ocean or lake buoys. He believed that defendant's vehicle was subject to the commercial vehicle regulations and that he could stop the vehicle for a safety inspection. Tr. 29, 32. Trooper Nicholas followed the vehicle in his patrol car and observed that the license plate bracket on the truck covered the state of issue on the license plate. Trooper Nicholas also saw the trailer travel over the white fog line by at least one tire width. Tr. 29, 32. Trooper Nicholas did not observe any obstruction in the roadway or other condition which would explain why the trailer had crossed the fog line. Tr. 31, 95. Trooper Nicholas activated his emergency lights and conducted a traffic stop of the vehicle.
Because the trailer had driven over the fog line, Trooper Nicholas asked defendant, the driver, whether he was tired. Tr. 34-36. Defendant stated that he was not tired, but that he felt sick. Id. When Trooper Nicholas asked for defendant's license and insurance, he noted that defendant's hands were shaking and his eyes appeared to be bloodshot. Defendant produced an Arizona commercial driver's license. Tr. 36. Defendant explained that the trailer belonged to a friend and that he was being paid $200 and fuel money to deliver the buoys to a location in Columbus, Ohio. Tr. 36. Defendant told Trooper Nicholas that he was going to Ohio anyway to get a car. Trooper Nicholas asked for the bill of lading and defendant's log book, but defendant could not provide them.
Lt. Richard Jimerson of the Kansas Highway Patrol arrived and spoke with Trooper Nicholas. Defendant told Lt. Jimerson that he had picked up the buoys from a company in San Diego, California and was transporting them to Columbus, Ohio. Tr. 113. Lt. Jimerson asked defendant for shipping papers, but defendant could not produce them. Id. Lt. Jimerson and Trooper Nicholas determined that the vehicle and trailer were in excess of the 10,001 pound threshold for a commercial vehicle and should be inspected. Trooper Nicholas noticed that the corners of the buoys were taped with white tape and did not appear to be water repellant. Tr. 97-98. In addition, the strobe lights attached to the buoys had no switches or apparent power source. Tr. 42-43, 110-11. When Trooper Nicholas checked the straps, he noticed that the buoys were extremely heavy. Based on defendant's nervous behavior, his failure to produce a log book or shipping documents, the origin and destination of the load, the shape of the buoys, the poor construction of the buoys (including outer mylar finish with tape holding the seams and lettering which was peeling off), and the fact that the "buoys" did not appear to be at all seaworthy,2 Lt. Jimerson concluded that defendant was probably involved in drug trafficking. Tr. 116-17, 124-26. Trooper Nicholas asked defendant to follow him to the Maple Hill truck stop for a commercial vehicle inspection, and contacted Trooper Craig Phillips to bring his narcotics detection canine.
When Trooper Phillips arrived at the truck stop, a certified narcotics detection dog (Canine Cliff) conducted a sniff of the vehicle and its contents. Canine Cliff showed a strong alert to the trailer and jumped up onto the trailer to sniff the middle of its cargo. Canine Cliff then jumped to the ground and went to the front of the trailer, jumped up and sniffed the cargo at the front. Canine Cliff then returned to the middle of the trailer and gave a positive alert for narcotics by sitting.
The officers opened the "buoys" and discovered black trash bags which contained 616 kilograms of marijuana.
Defendant seeks to suppress the marijuana which officers found in the "buoys" and his statements to officers. Defendant's motion raises two issues: (1) whether Trooper Nicholas had reasonable suspicion to stop defendant's vehicle; and (2) whether officers had probable cause to search defendant's vehicle and the contents of the trailer.
Defendant argues that Trooper Nicholas did not have reasonable suspicion to stop his vehicle. A traffic stop constitutes a seizure for purposes of the Fourth Amendment "even though the purpose of the stop is limited and the resulting detention quite brief." Brendlin v. California, ___ U.S. ___, 127 S.Ct. 2400, 2406, 168 L.Ed.2d 132 (2007) (quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). The Court analyzes the legality of a traffic stop under the investigative detention principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In cases of investigatory stops, the Fourth Amendment is satisfied if the officer's action is supported by "reasonable suspicion to believe that criminal activity may be afoot." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotation omitted). Reasonable suspicion requires a "particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Although an officer's reliance on a mere hunch is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard. Arvizu, 534 U.S. at 274, 122 S.Ct. 744. In determining whether reasonable suspicion existed, the Court considers the totality of the circumstances, United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), including the collective knowledge of those officers involved in the investigation, United States v. Hinojos, 107 F.3d 765, 768 (10th Cir.1997). The government bears the burden of proving the reasonableness of the officers' suspicion. United States v. Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998); see also United States v. Lutz, 207 F.Supp.2d 1247, 1255 (D.Kan.2002) ().
Trooper Nicholas testified that he stopped defendant's vehicle because (1) the trailer crossed the white fog line in violation of K.S.A. § 8-1522(a); (2) the vehicle license plate bracket covered the name of the issuing state in violation of K.S.A. § 8-133; and (3) he intended to conduct a commercial vehicle safety inspection under K.S.A. § 74-2108 in light of the apparent weight of the vehicle and trailer and the nature of its cargo. For reasons explained below, the Court finds that the traffic stop was valid on the latter two grounds. In addition, the traffic stop could be upheld on the first ground in conjunction with an alternative ground, i.e. that Trooper Nicholas had reasonable suspicion that defendant was falling asleep or was otherwise impaired.3
The government argues that Trooper Nicholas had reasonable suspicion that defendant had violated K.S.A. § 8-1522(a). Trooper Nicholas saw defendant's trailer drift out of its lane and cross the fog line by at least one tire width. Trooper Nicholas thought that defendant had violated K.S.A. § 8-1522(a) which provides that whenever any roadway has been divided into two or more clearly marked lanes for traffic, "[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." The Court need not address whether a single violation of K.S.A. § 8-1522 would establish reasonable suspicion under that statute because the traffic stop is valid on another ground: Trooper Nicholas reasonably suspected that defendant was either falling asleep or driving while impaired. Trooper Nicholas had some concern in this regard. In fact, his first question to defendant was whether he was tired. Tr. 34-36.
A vehicle may be stopped when the officer has a reasonable suspicion that the driver may be falling asleep or is driving while impaired. See State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511, 514 (1992) () (agreeing with State v....
To continue reading
Request your trial
-
United States v. Mansaw
...illegal parking. The court is mindful that this omission isn't fatal to the government's parking argument. See United States v. Triska, 574 F. Supp. 2d 1208, 1213 (D. Kan. 2008) (holding traffic stop valid for an alternative reason that the officer never articulated); United States v. Pounc......
-
United States v. Whitaker
...considered in connection with other driving activity to establish suspicion that Defendant was impaired. See United States v. Triska, 574 F.Supp.2d 1208, 1213-14 (D. Kan. 2008). Officer Baker also testified that he observed Defendant fail to stop behind the white line when he was exiting th......
-
Search and seizure
...cause to stop the defendant’s vehicle for such violation. SEARCH AND SEIZURE 4-57 Search and Seizure §4:141 United States v. Triska 574 F. Supp. 2d 1208 (D. Kan. 2008). On suspicion that Triska was either impaired or overly fatigued, the o൶cer lawfully stopped his vehicle after observing ......