United States v. Abarza

• Court: U.S. District Court — District of Oregon
• Writing for the Court: McSHANE, United States District Judge
• Citation: United States v. Abarza, 143 F.Supp.3d 1082 (D. Or. 2015)
• Decision Date: 06 November 2015
• Docket Number: No. 1:14–cr–179–MC,1:14–cr–179–MC
• Parties: United States of America, Plaintiff, v. Giovani Francisco Abarza, Joseph Santino Dibrito, Lisa Renee Abarza, Defendants.

143 F.Supp.3d 1082

United States of America, Plaintiff,

v.Giovani Francisco Abarza, Joseph Santino Dibrito, Lisa Renee Abarza, Defendants.

No. 1:14–cr–179–MC

United States District Court, D. Oregon, Medford Division.

Signed November 6, 2015

Judith Rose Harper, U.S. Attorney's Office, Medford, OR, for Plaintiff.

ORDER

McSHANE, United States District Judge

Defendant Giovani Abarza (Abarza) moves to suppress evidence seized as a result of a traffic stop in Klamath Falls, Oregon. At issue is whether Oregon State Police troopers unreasonably prolonged the traffic stop. Because the troopers lacked reasonable suspicion to continue the traffic stop, and because Abarza did not voluntarily consent to the searches of his person or his vehicle, I grant the motion to suppress.

BACKGROUND

ABARZA IS STOPPED FOR FAILURE TO SIGNAL A LANE CHANGE

The night of Thursday, March 6, 2014, Oregon State Police Trooper (now Detective) David Chambers was patrolling Klamath Falls, Oregon, in a marked police vehicle. At about 11:45 p.m., Chambers noticed a maroon Acura Integra pull into a closed Chevron gas station on Washburn Way, a five-lane street. Chambers could see two people in the Acura. Abarza was driving the Acura, and co-defendant Joseph Dibrito was in the front passenger seat.

Chambers watched for a few moments as the Acura parked and turned off its headlights, while no one left or entered the car. The Acura's headlights then turned back on and the car moved towards the parking lot driveway, preparing to turn left onto Washburn Way. Chambers decided to follow the Acura to investigate why it was parked late at night in a closed gas station.

Chambers drove south on Washburn Way, past the Chevron station where the Acura was waiting to exit. After Chambers passed the gas station, the Acura, turned left onto Washburn Way and went into the far right lane. Chambers turned into the Chevron station and then turned left to follow the Acura southbound on Washburn Way. Chambers determined he had reasonable suspicion to pull over the Acura for failure to signal a lane change on Washburn Way when the Acura drove from the left lane to the far right lane.

In evidence is Chambers's dash-cam video of the traffic stop. The dash cam was not pointed toward the Acura while Chambers was turning around in the Chevron parking lot, so it did not record the lane-change violation. The dash-cam video shows the Acura signaling a right turn from Washburn Way to Onyx Avenue. Chambers asked another Oregon State Police Trooper on patrol, Sergeant Cliff Barden, to provide back-up. After the Acura completed the turn onto Onyx Avenue, Chambers turned on his overhead lights to initiate a stop. Barden's police vehicle was driving directly behind Chambers's vehicle.

At the suppression hearing, Chambers testified that he often observed similar lane-change violations, but admitted he rarely stops drivers for such minor infractions. Because he believed the Acura's occupants were acting suspiciously, he used the minor traffic violation to seek evidence of a more serious offense. Pretextual stops are legitimate tools for law enforcement so long as the officer has an objectively reasonable suspicion that a traffic violation occurred. United States v. Choudhry, 461 F.3d 1097, 1102 (9th Cir.2006) (citing Whren v. United States, 517 U.S. 806, 819, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ).

The dash-cam video has been very useful to my findings on the circumstances of this traffic stop. The dash-cam video includes audio (some of which is from Chambers's body microphone) starting the moment Chambers turned on his overhead lights until the end of the traffic stop more than an hour later. The video starts, without sound, about a minute before Chambers turns on his overhead lights.

Onyx Avenue is a narrow street with no shoulder and high curbs. To stop safely, a car must turn off of the road into one of the parking lots that open out onto Onyx Avenue. The first available parking lot is on the right-hand side of the road and is situated very close to Washburn Way. That parking lot services a Taco Bell restaurant. Although the government contends Abarza should have pulled over into the Taco Bell parking lot, I conclude that Abarza did not have sufficient time to safely turn into that parking lot after Chambers turned on his lights. Onyx Avenue then continues for a short distance before opening up on two large parking areas, one to the right, which also services the Taco Bell, while the left-hand parking lot services a small complex of other shops.

After Chambers turned on his lights, Abarza proceeded slowly down Onyx Avenue before turning into the left-hand parking lot and coming to a stop in a parking space. Chambers stopped his patrol vehicle behind and to the right of the Acura. Because of the angle of Chambers's patrol car, the dash cam is pointed away from the Acura and towards a nearby Wal–Mart. Barden drove his patrol car around Chambers and brought his car to a halt at a perpendicular angle to the Acura. The front end of Barden's patrol car is visible in Chambers's dash-cam video. Although Barden's patrol car was better positioned to capture video of the stop, Barden did not turn on his lights and so no dash-cam video was preserved from his patrol car.

After hearing the testimony and viewing the dash-cam video, I find that Chambers and Barden overstated the circumstances of this traffic stop. Specifically, Chambers described the location of the traffic stop as a high-crime area; the troopers described Abarza's conduct in pulling over as a "slow elude"; Chambers described Abarza as very nervous and fidgety; and the troopers testified that they detected the odor of marijuana emanating from the Acura.

High–Crime Area: The Ninth Circuit warns courts that "the citing of an area as ‘high-crime’ requires careful examination by the court." United States v. Montero–Carmargo, 208 F.3d 1122, 1138 (9th Cir.2000) (en banc). This court "must be particularly careful to ensure that a ‘high crime’ area factor ... is limited to specific, circumscribed locations where particular crimes occur with unusual regularity." Id. (high-crime designation has been used as a proxy for race or ethnicity).

Here, Chambers testified that the Acura was parked in "an area where a lot of drug transactions have taken place." He testified that "all of the businesses are closed" and that "this entire block is closed." Chambers mentioned a house where drug deals occurred in a nearby residential neighborhood. The government did not, however, present evidence connecting Abarza or Dibrito to the alleged "drug house." Nor did the government present evidence on the number of arrests in the area or other objective evidence of unusually frequent criminal activity. "A lot of drug transactions" by itself does not define the regularity, the number, or the time in which the criminal activity occurred.

Given the lack of objective evidence provided by the government, and based on my viewing of the dash-cam video and other evidence, I find that the traffic stop occurred in a mixed commercial and industrial area on a reasonably busy, well-lit street. At 11:50 p.m. on a weeknight, several businesses were in fact open within a block of where Chambers first noticed the Acura. These businesses include an alcohol-free video gambling establishment, a Taco Bell, and a 24–hour Wal–Mart. The dash-cam video shows customers at the Taco Bell and dozens of vehicles entering and exiting the Wal–Mart parking lot. There do not appear to be taverns or bars in the immediate area. I find the government has not shown that the encounter took place in a high-crime area.

Abarza's Slow Pull–Over: Chambers described Abarza as being "very slow" to pull over after Chambers turned on his overhead lights. He testified that Abarza did not avail himself of the first opportunity to pull over. Barden described Abarza's conduct as a "slow elude." Considering the dash-cam video and the testimony of defense witness Holly Lidey, a former Oregon State Police Trooper, I find that Abarza pulled over promptly under the circumstances at the first reasonably available parking spot. The video shows that Abarza parked no more than 25 seconds after Chambers turned on the overhead lights, about 340 feet from intersection of Washburn and Onyx Avenue. Contrary to the testimony of Chambers, Abarza did not have an opportunity to pull into the Taco Bell parking lot. When Chambers activated the overhead lights, Abarza was in a narrow lane with no shoulders, in which all witnesses agree Abarza was unable to do anything other than move forward. Abarza took the first opportunity to stop when he emerged from the narrow lane by pulling directly into one of the closest parking stalls in the parking lot that was now available to him.

Given the overstatement of the Acura's "slow elude" in pulling over, I am hesitant to accept the contemporary observations made by the troopers that the occupants of the car were making "a lot of furtive movements." While it is hard to see on the dash-cam video what the occupants are doing as the car is being pulled over, I will accept that some furtive movement took place.

Abarza Acting Nervous: Chambers testified that Abarza seemed to be very nervous and fidgety during the traffic stop. Although a person's nervousness is relevant to reasonable suspicion, " ‘standing alone’ " it carries "little weight because many citizens become nervous during a traffic stop, even when they have nothing to hide.' " United States v. Evans, No. 3:13–cr–00079–LRH–WGC, 2015 WL 4711148, at *6 (D.Nev. Aug. 7, 2015) (Evans II ) (quoting State v. Beckman, 305 P.3d 912, 918 (Nev.2013) (citing United States v. Arvizu, 534 U.S. 266, 275, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ).

Based on the dash-cam audio and the testimony of Oregon State Police Trooper Patrick Irish, I find that Abarza was not so remarkably nervous as to give rise to reasonable suspicion. Trooper Irish, who stood next to Abarza during...