United States v. Diaz, No. 2:16-cr-00055-DCN

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Docket NumberNo. 2:16-cr-00055-DCN
Decision Date06 April 2018


No. 2:16-cr-00055-DCN


April 6, 2018


This matter is before the court on a motion to suppress filed by defendants Erik Diaz ("Diaz") and Alexander George Bozzetti ("Bozzetti") (collectively, "defendants"). After consideration of the testimony presented during multiple lengthy suppression hearings, a thorough analysis of the relevant caselaw, and a careful review of the dashcam video of the traffic stop, the court grants the motion to suppress. The court finds that there was no reasonable suspicion to prolong the traffic stop to conduct the free-air dog sniff as required under Rodriguez v. United States, 135 S. Ct. 1609 (2015). Furthermore, even if the officers did have reasonable suspicion to prolong the traffic stop, the drug dog Rao ("Rao") did not "alert." And finally, even if Rao did "alert," the court finds that Rao was unreliable under Florida v. Harris, 568 U.S. 237 (2013) such that its "alert" did not establish probable cause to search the vehicle.


On June 4, 2015, Lance Corporal K.L. Byrd ("Byrd") of the South Carolina Highway Patrol ("SCHP") visually observed a black Nissan with Florida license plates traveling at 77 miles per hour in a 70 miles per hour zone on Interstate 95 and

Page 2

swerving multiple times across the white fog line. Byrd decided to pull the car over for the traffic infraction. See S.C. Code §§ 56-5-1810, 1900. Byrd stopped the car travelling southbound on I-95 at mile marker 68, roughly 9-10 hours from Pennsylvania. Tr. 21:1-16. Equipped with a dashboard video camera, Byrd's vehicle recorded the ensuing traffic stop.

Once the car stopped, Byrd approached the passenger side of the vehicle to find Diaz in the driver's seat, and Bozzetti and Juan Rodriguez ("Rodriguez") as passengers. Byrd asked Diaz for his license and registration and to step outside the vehicle. At this point, Byrd observed an "overwhelming" odor of air freshener from the five air fresheners visible, three clip-in air fresheners in the front air conditioning vents, one on the rear view mirror, and one hanging in the back passenger area. Byrd also noticed that the passenger in the front seat was breathing rapidly. Byrd explained to Diaz the reason for the traffic stop, and began to ask a series of questions about where the car was coming from, to which Diaz responded that the car was coming from Pennsylvania from his brother's wedding. Byrd appeared to have difficulties understanding Diaz, as evidenced by Byrd asking where the car was coming from and Diaz repeating "Pennsylvania" multiple times before Byrd seems to understand the answer.

Byrd then called for backup from his superior in the SCHP "Aggressive Criminal Enforcement" ("ACE") team, Corporal Avery Stephen English ("English"). While Diaz was waiting outside his car, Byrd then went back to his police car to call Lance Corporal James Franklin Sweatman III ("Sweatman") of the SCHP to come to the scene and bring his police dog Rao. After calling Sweatman, Byrd left the police

Page 3

car and informed Diaz that the stop would take longer because he was checking the vehicle identification number ("VIN"). At this point, English had arrived. English then went to talk to the remaining two passengers in the car, Bozzetti and Rodriguez, and asked them questions including: "How long have you been on the road," "How long were you all up in Pennsylvania," and "Are you all related? Are you friends?" The passengers answered while Diaz was standing outside the car. English also asked the passengers questions about the wedding in Pennsylvania that Diaz had told Byrd they all attended on Sunday. When asked, Bozzetti told English that they were in Pennsylvania for the wedding of Diaz's brother and that it was on Saturday. Upon running the VIN number back in the police car, Byrd determined that the rental car that Diaz was driving was due back in Miami the day before.1 Byrd asked Diaz about the rental car being overdue under the rental agreement, to which Diaz responded that he called the rental company that day to extend the rental period for the car.

Within fifteen minutes of first making contact with Diaz, Byrd handed Diaz's documents back and explained the warning to him. After giving the warning, Byrd asked Diaz if he could search the vehicle. Diaz refused, and said that he would like to get back on the road to Miami. Byrd then said that Rao would run the exterior of the car and if it did not alert to narcotics, Diaz would be free to go. Diaz responded "Okay." Sweatman then deployed Rao to conduct a free-air sniff of the vehicle to determine if there were narcotics in the vehicle. After being run around the car, Rao "alerted" to the driver's door of the vehicle. The troopers asked the passengers if they

Page 4

were "smoking a little marijuana, to tell us and we will let you be on your way." The passengers all once again denied that there were any drugs in the car. Upon searching the car after Rao "alerted," the officers found no narcotics but did find 171 credit and gift cards contained inside luggage and empty cigarette packs.

Defendants Diaz and Bozzetti were indicted on one count of possession of counterfeit access devices, a violation of Title 18, United States Code § 1029(a)(3) and (2), and one count of aggravated identity theft, a violation of 18 U.S.C. § 1028(a)(1). On January 13, 2017, Bozzetti filed a motion to suppress the evidence found in the car after the traffic stop. On April 12, 2017, Diaz joined the motion. The government responded on May 1, 2017. The court held a hearing on October 27, 2017, during which it heard the testimony of English and Sweatman. Because Byrd could not be present at the first suppression hearing, the court continued the hearing until February 1, 2018, during which Byrd testified. The motion has been fully briefed and is now ripe for the court's review.


Defendants challenge the seizure of the evidence in the case on three separate grounds: (1) that the initial traffic stop was not supported by reasonable suspicion; (2) there was not reasonable suspicion to warrant the additional detention after the traffic stop had been completed; (3) neither the drug dog nor the alert were reliable enough to establish probable cause. The court analyzes each argument in turn.2

Page 5

A. Bozetti's Standing to Challenge Search

The government first argues that Bozetti, as a passenger of the rental car whose name was not on the rental car agreement,3 has no legitimate expectation of privacy in the contraband found under the front passenger side floor mats. Contraband was found in three locations: in the defendants' luggage, in several empty cigarette packets, and under the front passenger side floor mats. It is the contraband found in this last category that the government challenges Bozetti's standing to contest.4

Page 6

The government relies on a rule about reasonable expectations of privacy that does not control in this case. Specifically, it relies on circumstances similar to that of United States v. Avagyan, 164 F. Supp. 3d 864, 880 (E.D. Va. 2016), aff'd sub nom. United States v. Ghazaryan, 2017 WL 1382027 (4th Cir. Apr. 18, 2017), where the court held that under Rakas v. Illinois, 439 U.S. 128 (1978), non-owner passengers who have the owner's permission to use the car5 have standing to challenge a search only of the "particular areas of the automobile in which he has a legitimate and reasonable expectation of privacy." The Avagyan court went on to say that "[n]on-owner passengers who have the owner's permission to be in the vehicle enjoy standing only as to items over which they have control; passengers, therefore, have no interest in the space under the driver's seat, in the trunk, or in a locked glovebox to which only the owner has a key." The government argues that under the current state of the law Bozetti cannot challenge the search of the front passenger side floor mats because he has no reasonable expectation of privacy in that part of the rental car. Certainly, while the contraband was not found in the trunk, the fact that the cards were found underneath the passenger side floor mats, and that a slit had been cut on the vertical portion of the floorboard below the glove compartment into which the cards appeared to have been hidden, indicates that Bozetti would not have had a legitimate expectation of privacy in that portion of the car and thus has no standing to contest the contraband that was found in that specific location.6

Page 7

But that is not the correct rule. Here, Bozzetti was a passenger of the car who was seized as soon as Byrd impermissibly extended the traffic stop without reasonable suspicion. As soon as a defendant is illegally seized, that defendant is entitled to suppress any evidence that is derived from the unlawful seizure. In United States v. Rodriguez-Escalera, 2018 WL 1178359, at *7 (7th Cir. Mar. 7, 2018), the government pursued the exact same argument that is currently before the court. There, the government argued that the passenger in a car that was subjected to a free-air dog sniff had no standing to challenge the methamphetamine that was found in the subsequent search of that car once the drug dog alerted, even if the traffic stop had been unconstitutionally prolonged without reasonable suspicion. The Seventh Circuit rejected this argument out of hand, reasoning that because the passenger of the car had been detained without reasonable cause, "[t]he drug evidence was therefore derived from the unlawful seizure, and Rodriguez, as a subject of that seizure, is entitled to have suppressed any evidence which is the fruit of that violation." Id. Here, there is a clear causal connection between Bozzetti's seizure and the officers finding the contraband in the floorboard. Bozzetti was detained in the Nissan while...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT