United States v. Ramos, CR 15-3940 JB

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Citation: 194 F.Supp.3d 1134
• Docket Number: No. CR 15-3940 JB,CR 15-3940 JB
• Parties: UNITED STATES of America, Plaintiff, v. Everett RAMOS, Defendant.
• Decision Date: 11 July 2016

194 F.Supp.3d 1134

UNITED STATES of America, Plaintiff,
v.
Everett RAMOS, Defendant.

No. CR 15-3940 JB

United States District Court, D. New Mexico.

Filed July 11, 2016

194 F.Supp.3d 1139

Damon P. Martinez, United States Attorney, Paul Mysliwiec, Assistant United State Attorney, Albuquerque, New Mexico, Attorneys for the Plaintiff

Thomas B. Jameson, Brian A. Pori, Assistant Federal Public Defenders, Albuquerque, New Mexico, Attorneys for the Defendant

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT COURT

THIS MATTER comes before the Court on the Defendant's Motion to Suppress Evidence, filed March 21, 2016 (Doc. 26)("Motion"). The Court held an evidentiary

194 F.Supp.3d 1140

hearing on May 25, 2016. The primary issues are: (i) whether New Mexico State Police Officer Joshua Campos unreasonably delayed Defendant Everett Ramos during his traffic stop without reasonable suspicion; (ii) whether Ramos' consent to allow Campos to search his vehicle was voluntary; and (iii) if Campos unlawfully detained Ramos, whether the unlawful actions were too attenuated from Ramos' voluntary consent to be suppressed. First, Campos did not unlawfully extend the traffic stop when he questioned Ramos and Perez and inspected the vehicle's VIN. Second, after the traffic stop had ended, Ramos voluntarily consented to answer further questions. Although this questioning evolved into a lawful detention justified by reasonable suspicion, Ramos nonetheless freely and voluntarily consented to a vehicle search during the detention. Accordingly, Campos' vehicle inspection was lawful. Third, even if Campos had unlawfully extended the traffic stop, Ramos' consent was too attenuated from any unlawful actions to suppress the evidence. The Court therefore denies the Motion and will not suppress the evidence.

FACTUAL BACKGROUND

Rule 12(d) of the Federal Rules of Criminal Procedure requires that the Court state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) ("When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record."). This Memorandum Opinion and Order's findings of fact shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269–70 (10th Cir.1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed. R. Evid. 104(a) ("The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege."). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (noting that "the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself"); United States v. Ramirez, 388 Fed.Appx. 807, 810 (10th Cir.2010) ("The Supreme Court has not yet indicated whether the Confrontation Clause applies to hearsay statements made in suppression hearings."); United States v. Garcia, 324 Fed.Appx. 705, 708 (10th Cir.2009) (unpublished)¹ ("We need not resolve

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whether Crawford[ v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ]'s² protection of an accused's Sixth Amendment confrontation right applies to suppression hearings, because even if we were to assume this protection does apply, we would conclude that the district court's error cannot be adjudged ‘plain.’ "), cert. denied, 558 U.S. 890, 130 S. Ct. 223, 175 L.Ed.2d 154 (2009) ; United States v. Merritt, 695 F.2d at 1269 ("The purpose of the suppression hearing was, of course, to determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments. In this type of hearing the judge had latitude to receive it, notwithstanding the hearsay rule."); United States v. Ramirez, 388 Fed.Appx. at 810 ("It is beyond reasonable debate that Ramirez's counsel were not ineffective in failing to make a Confrontation Clause challenge to the use of the confidential informant. The Supreme Court has not yet indicated whether the Confrontation Clause applies to hearsay statements made in suppression hearings."); United States v. Gonzalez, 121 F.Supp.3d 1094, 1103 (D.N.M.2015) (Browning, J.)("Thus, the Court may consider hearsay in ruling on a motion to suppress."); United States v. Christy, 810 F.Supp.2d 1219, 1224 (D.N.M.2011) (Browning, J.)(concluding the that the Court "may consider hearsay in ruling on a motion to suppress"). The Court has previously held that Crawford v. Washington does not apply to pre-trial hearings, because "the Sixth Amendment is a trial right and does not apply to pretrial proceedings." United States v. Hernandez, 778 F.Supp.2d 1211, 1226 (D.N.M.2011) (Browning, J.)(concluding "that Crawford v. Washington does not apply to detention hearings").³

I. CAMPOS IS TRAINED IN PERFORMING HIGHWAY INTERDICTIONS.

1. Campos currently serves on the New Mexico State Police's Criminal Enforcement Unit. See Transcript of Hearing at 4:9-12 (Campos)(taken May 25, 2016)("Tr.").⁴

194 F.Supp.3d 1142

2. The Criminal Enforcement Unit is a "K-9 unit," meaning that Campos is trained to use a dog. Tr. at 4:15-16 (Campos).

3. As part of this unit, Campos received additional training, including a specialty course on highway interdiction. See Tr. at 5:15-21 (Campos).

4. He tries to attend various highway interdiction trainings "at least once a year." Tr. at 6:5-6 (Campos).

5. At those classes, he learns traffic stop techniques, different trends for smuggling narcotics, tools that traffickers use to avoid detection, and recent federal case law regarding traffic stops. See Tr. at 6:9-22 (Campos, Mysliwiec).

6. Campos has also been trained as a Vehicle Identification Number ("VIN") Inspector, so he can better determine whether vehicles have been tampered with, and whether a car is stolen. See Tr. at 107:22-25 (Campos).

7. At the VIN training, Campos learned about a VIN's characteristics, how to identify when a certain car make or model should have a longer VIN, where "hidden VINs can be located" if an officer is unable to verify a VIN from the dashboard or the doorjamb, and how to identify if a VIN has been replaced. Tr. at 108:5-110:11 (Campos, Mysliwiec).

8. As part of Campos's normal citation writing and traffic stop process, Campos checks a vehicle's VIN so he can ensure that the vehicle was not stolen. See Tr. at 20:19-21:2 (Campos, Mysliwiec).

9. State police officers are not trained to check VINs and a vehicle's VIN is not on the citation form. See Tr. at 106:12-107:2 (Campos, Pori).

10. Even though state police officers do not always check the VIN, the Criminal Enforcement Unit officers, who perform highway drug interdictions, routinely compare both of a vehicle's VINs during traffic stops because either or both VINs might reveal tampering or other evidence of crime. See Tr. at 18:13-19:18 (Campos, Mysliwiec); id. at 112:2-5 (Campos).

11. Checking the VIN ensures that the officer writes the correct ticket for the correct driver and the correct car in every traffic stop. See Tr. at 104:24-105:2 (Campos, Mysliwiec).

12. Although the Court does not have extensive evidence of how long an individual VIN inspection usually takes, the Court does not believe that Campos needed one minute and twenty-six seconds to inspect this particular VIN, when it took him only six to eight seconds to inspect the dashboard VIN and he did not write down any numbers to use as comparison. See Tr. at 23:5-10 (Campos, Mysliwiec); id. 65:4-8 (Campos)(explaining that, to adequately check that the VIN has not been tampered with, Campos needed to check each of the rivets on the dash and the stamp on the door, as well as all of the letters and numbers in the VIN); id. at 67:15-22 (Campos)(noting that he did not write anything down and he did not remember how he compared the two VINs, but maintaining that he did actually compare the VINs).

13. The Court acknowledges, however, that Campos may have spent some time trying to locate the VIN on the rental agreement so he "could compare it to their contract to make sure that vehicle actually belonged to the contract that they had." Tr. at 73:7-21 (Campos, Pori).

II. THE INITIAL TRAFFIC STOP WAS LAWFUL.

14. On October 14, 2015, Ramos rented a Mercedes G-300 Sedan in Southern California. See Tr. at 14:18 (Campos).

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