U.S. v. Villota-Gomez

• Decision Date: 21 January 1998
• Docket Number: No. 97-40084-01-SAC.,No. 97-40084-02-SAC.,97-40084-01-SAC.,97-40084-02-SAC.
• Citation: 994 F.Supp. 1322
• Parties: UNITED STATES of America, Plaintiff, v. Asceneth VILLOTA-GOMEZ aka Asceneth Villota Gomez, and Luis Armando Perea-Vivas, aka Jorge Colon Perez, Defendants.
• Court: U.S. District Court — District of Kansas

994 F.Supp. 1322

UNITED STATES of America, Plaintiff, v. Asceneth VILLOTA-GOMEZ aka Asceneth Villota Gomez, and Luis Armando Perea-Vivas, aka Jorge Colon Perez, Defendants.

No. 97-40084-01-SAC.

No. 97-40084-02-SAC.

United States District Court, D. Kansas.

January 21, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Marilyn M. Trubey, David J. Phillips, Office of Federal Public Defender, Topeka, KS, for Asceneth Villota-Gomez aka Asceneth Villota Gomez, defendants.

Thomas G. Luedke, Office of U.S. Atty., Topeka, KS, for U.S.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

On October 7, 1997, the grand jury returned a two count indictment charging the defendants, Asceneth Villota-Gomez and Luis Armando Perea-Vivas, with one count of possession with the intent to distribute in excess of five kilograms of cocaine (21 U.S.C. § 841) and one count of conspiracy to possess with the intent to distribute approximately five kilograms of cocaine hydrochloride (21 U.S.C. § 846).

This case comes before the court upon the following pretrial motions filed by the defendants:

MOTIONS FILED BY VILLOTA-GOMEZ (Represented by Marilyn M. Trubey)

1. Motion and Memorandum in support of Motion to Suppress Evidence (Dk.33).

2. Motion for a Bill of Particulars (Dk.32).

3. Motion for Disclosure of 404(b) Evidence (Dk.31).

MOTIONS FILED BY PEREA-VIVAS (Represented by F.G. Manzanares):

1. Motion to Suppress Evidence (Dk.29).

2. Motion for Trial Severance (Dk.23); Memorandum in Support of Motion for Trial Severance (Dk.24).

3. Motion to Compel Disclosure of Existence and Substance of Promises of Immunity, Leniency or Preferential Treatment (Dk.25); Memorandum in Support of Defendant Perea-Vivas' Motion to Compel Disclosure of Preferential Treatment (Dk.26).

4. Motion by Defendant Luis Armando Perea-Vivas For an Order Directing the Government to Disclose Whether it Intends to Offer into Evidence Proof of Other Crimes, Wrongs or Acts Under Rule 404(b) of the Federal Rules of Evidence (Dk.27).

5. Motion of (Sic) Disclosure of Plea Agreement (Dk.28).

The government has filed responses to the defendants' motions.

See (Dk.__ and __).

Motion and Memorandum in support of Motion to Suppress Evidence (Dk.33).

Villota-Gomez contends that her Fourth Amendment rights were violated when she was unlawfully stopped by Trooper Smith of the Kansas Highway Patrol. In her brief, Villota-Gomez denies that she was speeding. However, Villota-Gomez did not testify at the hearing. Villota-Gomez proffers that she only sped up by two or three miles per hour as Trooper Smith approached from behind "in order to allow Trooper Smith's vehicle to pass her." Villota-Gomez contends that she was unlawfully detained following the unlawful stop and that her subsequent consent is invalid.¹

The government responds, indicating that Villota-Gomez was stopped for speeding, that all of the facts known to Trooper Smith gave him a reasonable suspicion to ask additional questions following the completion of the traffic stop and that Villota-Gomez' consent to search was voluntary.

Legal Standards

In general, there are three types of citizen-police encounters:

(1) consensual encounters, which involve a citizen's voluntary cooperation with an official's non-coercive questioning and which are not seizures within the meaning of the Fourth Amendment; (2) investigative detentions or "Terry stops," which are seizures that are justified only if articulable facts and reasonable inferences drawn from those facts support a reasonable suspicion that a person has committed or is committing a crime; and (3) arrests, which are seizures characterized by highly intrusive or lengthy detention and which require probable cause to believe that the arrestee has committed or is committing a crime.

United States v. Seslar, 996 F.2d 1058, 1060 (10th Cir.1993).

"[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring." United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995). "Our sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction." Id. (quoting Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). For purposes of Fourth Amendment analysis, it does not matter whether: (1) "the stop in question is sufficiently ordinary or routine according to the general practice of the police department or the particular officer making the stop," quoting United States v. Ferguson, 8 F.3d 385, 391 (6th Cir.1993), cert. denied, 513 U.S. 828, 115 S.Ct. 97, 130 L.Ed.2d 47 (1994); and (2) "the officer may have had other subjective motives for stopping the vehicle." Botero-Ospina, 71 F.3d at 787.

The law governing the conduct of an officer during a traffic stop is well-settled in the Tenth Circuit:

An officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning.

[quoting United States v. Fernandez, 18 F.3d 874, 878 (10th Cir.1994).] United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.1994) teaches that further questioning and the concomitant detention of a driver are permissible in either of two circumstances: (1) during the course of the traffic stop the officer acquires an objectively reasonable and articulable suspicion that the driver is engaged in illegal activity (see, e.g., United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993); United States v. Horn, 970 F.2d 728, 732 (10th Cir.1992)) or (2) the driver voluntarily consents to the officer's additional questioning. In the first situation a Fourth Amendment seizure has taken place, but it is reasonable and consequently constitutional. In the second there is no seizure, and hence the Fourth Amendment's strictures are not implicated. But if neither of those factors is present, evidence derived from further questioning (or, a fortiori, from an ensuing search) is impermissibly tainted in Fourth Amendment terms.

United States v. Sandoval, 29 F.3d 537, 539-540 (10th Cir.1994); see United States v. Lee, 73 F.3d 1034-1039 (10th Cir.1996).

Voluntariness of Continued Encounter

Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389 (1991) has reconfirmed the Supreme Court's adherence:

to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.

That totality-of-the-circumstances approach means that "[n]o single factor dictates whether a seizure has occurred" (United States v. Houston, 21 F.3d 1035, 1037 (10th Cir.1994)). In the context of traffic stops this Circuit has adopted as an indicium of a seizure the officer's taking of necessary documentation (driver's license and vehicle registration) from a driver, and we have also considered as a necessary (but not always sufficient) condition of the termination of that seizure the officer's return of such documentation — both of those rulings being based on the premise that the requisite consent is impossible because no "reasonable person" would feel free to leave without such documentation (United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir.1993)).

After the point at which the driver has his or her other documentation back, the touchstone of our analysis is simply whether — adapting the language of Bostick to the circumstances of a traffic stop — the driver (United States v. Werking, 915 F.2d 1404, 1408 (10th Cir.1990)):

has an objective reason to believe that he was not free to end his conversation with the law enforcement officer and proceed on his way.

Where such a belief is present based on the "objective" facts of the situation, a voluntary police-citizen encounter is said to arise (see, e.g., McKneely, 6 F.3d at 1451-53; Werking, 915 F.2d at 1409).

Sandoval, 29 F.3d at 540; see Lee, 73 F.3d at 1040 (The Tenth Circuit has "consistently held `that an encounter initiated by a traffic stop may not be deemed consensual unless the driver's documents have been returned to him.'") (quoting United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.), cert. denied, 511 U.S. 1095, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994)). "A limited number of routine questions about travel plans and relationship to passengers, followed by a question about possession of contraband and a request to search, are not sufficient to render an otherwise consensual encounter coercive." United States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir.1996).

Reasonable Suspicion

Detention "can only be justified if specific and articulable facts and rational inferences drawn from those facts gave rise to a reasonable suspicion of criminal activity." Sandoval, 29 F.3d at 542.

Consensual Searches

Under the Fourth and Fourteenth Amendments a search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). A search authorized by consent is wholly valid and is a well-recognized exception to the prohibition against warrantless searches. 412 U.S. at 219. Voluntariness is a question of fact to be determined from the totality of all the circumstances....