United States v. Wendfeldt

• Decision Date: 07 November 2014
• Docket Number: No. 3:11–CR–00094–LRH–VPC.,3:11–CR–00094–LRH–VPC.
• Citation: 58 F.Supp.3d 1124
• Court: U.S. District Court — District of Nevada
• Parties: UNITED STATES of America, Plaintiff, v. Albert Thomas WENDFELDT, Defendant.

58 F.Supp.3d 1124

UNITED STATES of America, Plaintiff

v.Albert Thomas WENDFELDT, Defendant.

No. 3:11–CR–00094–LRH–VPC.

United States District Court, D. Nevada.

Signed Nov. 7, 2014.

William R. Reed, U.S. Attorney's Office, Reno, NV, for Plaintiff.

ORDER

LARRY R. HICKS, District Judge.

Before the Court is Defendant Albert Thomas Wendfeldt's (“Wendfeldt”) Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255. Doc. # 36.¹ The United States filed a Response (Doc. # 40), to which Wendfeldt did not reply. After the Court ordered an evidentiary hearing (Doc. # 41), Wendfeldt filed a Memorandum in Support of his Motion to Vacate (Doc. # 44), to which the United States replied (Doc. # 45). The Court held an evidentiary hearing on October 27, 2014, during which the Court viewed the video of Wendfeldt's driving and the traffic stop at issue and heard testimony from the arresting officer and an expert witness called by the defense.

I. Factual Background

Shortly before 10:40 p.m. on July 11, 2011, Nevada Highway Patrol (“NHP”) Trooper Eric Lee (“Trooper Lee”) observed Wendfeldt's vehicle, which was traveling westbound in the outside lane of Interstate 80 near Reno, drive onto the north fog line several times within one mile. In his report, Officer Lee noted that the driver of the vehicle had violated Nevada Revised Statute (“NRS”) 484.305,² which provides that “[i]f a highway has two or more clearly marked lanes for traffic traveling in one direction, vehicles must: (a) Be driven as nearly as practicable entirely within a single lane.” Trooper Lee activated his emergency lights and effected a traffic stop at approximately 10:40 p.m. Upon making contact with Wendfeldt, Trooper Lee informed Wendfeldt that he stopped him because he was concerned that he may have been drinking and driving or possibly falling asleep behind the wheel. Wendfeldt explained that he had been driving all day and was only trying to get to Reno. Trooper Lee then asked “did you notice that you were having a hard time staying in the lane?” Wendfeldt responded “no.” Wendfeldt added that he was driving toward the right side of his lane because Trooper Lee was immediately behind him in the inside lane to the left.

While Wendfeldt was retrieving his license and registration, Trooper Lee observed that the interior of the vehicle had a “lived-in” appearance, with trash, clothing, and other items scattered about the vehicle. After Wendfeldt located the requested documentation, Trooper Lee conducted a weapons frisk. In response to Trooper Lee's inquiry about previous trouble with law enforcement, Wendfeldt responded that his only trouble had been for driving under the influence.

Trooper Lee requested a records check on Wendfeldt at approximately 10:44 p.m. While waiting for the records check to return, Trooper Lee asked Wendfeldt a number of questions—primarily concerning his travels and occupation. At 10:53 p.m., Wendfeldt asked if they were done yet. Thereafter, Trooper Lee indicated that Wendfeldt's driver's license check had come back and Trooper Lee told Wendfeldt that he was free to leave. As Wendfeldt was walking back to his car, Trooper Lee reinitiated questioning and asked “do you have anything illegal inside the car?” Wendfeldt responded “no sir.” Trooper Lee then asked Wendfeldt if he had any marijuana, heroin, cocaine, ecstacy, methamphetamines, or large sums of money. Wendfeldt responded “no sir” to each of these questions. At approximately 10:55 p.m., Trooper Lee asked “can I search your vehicle?” Wendfeldt responded “no sir.” Trooper Lee then said “why don't you stand right over there,” referring to a location away from his vehicle and near the police vehicle. Next, Trooper Lee returned to his patrol car and took out his canine “Petey.” He then walked the dog to Wendfeldt's vehicle, circled the vehicle, and the dog positively alerted in the area of a passenger door. Trooper Lee then detained Wendfeldt and obtained a search warrant. A search of locked containers in the trunk of the vehicle yielded discovery of sixty-five grams of methamphetamine, plastic bags, a digital scale, two handguns, and a shotgun.

On August 10, 2011, Wendfeldt was indicted by a federal grand jury on one count of Possession with Intent to Distribute a Controlled Substance in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(viii). Doc. # 1. On August 30, 2011, federal public defender Cynthia S. Hahn (“Hahn”) was appointed counsel for Wendfeldt. Doc. # 11. On February 2, 2012, Wendfeldt withdrew his previous plea of not guilty and entered a plea of guilty. Doc. # 20. In the Plea Agreement, Wendfeldt stipulated to the following:

A Nevada Highway Patrol officer conducted a traffic stop of the defendant's vehicle on Interstate 80 on July 11, 2011. After a drug detection dog alerted on the defendant's vehicle, a search warrant was obtained for the vehicle. During a search of the vehicle trunk, the officer found approximately 65 grams of actual methamphetamine and three firearms. These items were found in locked containers.

Doc. # 21 at 5. On May 11, 2012, the Court entered judgment against Wendfeldt and sentenced him to a mandatory minimum of 120 months imprisonment to be followed by five years' supervised release. Doc. # 26.

II. Legal Standard

Nevada law states that in a highway with two or more lanes, vehicles must “[b]e driven as nearly as practicable entirely within a single lane.” NRS 484B.223(1). An infraction involving a minor cross over a fog lane does not by itself create reasonable suspicion to justify a traffic stop. United States v. Delgado–Hernandez, 283 Fed.Appx. 493, 498–99 (9th Cir.2008) (holding that the stop was unreasonable where the defendant crossed over the fog line twelve to fourteen inches and did not endanger other motorists).

It is well settled that a traffic stop is a seizure within the meaning of the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ; see also Whren v. United States, 517 U.S. 806, 809–10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The Ninth Circuit has held, in the context of an investigatory traffic stop, that an officer need only have reasonable suspicion to justify the seizure. See United States v. Lopez–Soto, 205 F.3d 1101, 1104–05 (9th Cir.2000) (concluding that Whren did not alter the law that reasonable suspicion is enough to support an investigatory traffic stop under the Fourth Amendment); see also Brendlin v. California, 551 U.S. 249, 263, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (concluding that a seizure begins at the moment the car comes to a halt on the side of the road). Reasonable suspicion requires “specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.” United States v. Michael R., 90 F.3d 340, 346 (9th Cir.1996) (quoting United States v. Garcia–Camacho, 53 F.3d 244, 246 (9th Cir.1995) ). In assessing the legality of an investigative stop, courts must consider the “totality of the circumstances.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or correct a sentence if “the sentence was imposed in violation of the Constitution or laws of the United States, or ... the court was without jurisdiction to impose such sentence, or ... the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. A petitioner can base a § 2255 motion on the ineffective assistance of counsel prior to conviction or a plea deal. Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If the Court determines that a motion to suppress would have been meritorious, the Court must then consider whether failure to file such a motion constituted ineffective assistance of counsel. See Strickland, 466 U.S. at 686, 104 S.Ct. 2052. In order to prevail on an ineffective assistance of counsel claim, the petitioner has the burden of proving two elements. “First, the defendant must show that counsel's performance was deficient,” meaning that counsel was not functioning as a competent advocate. Id. at 687, 104 S.Ct. 2052. “Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial.” Id. The Court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052.

III. Discussion

A. Likelihood of Success

At issue first is whether the investigatory traffic stop ran afoul of the Fourth Amendment such that Wendfeldt would have succeeded had his counsel filed a motion to suppress. Wendfeldt contends that (1) the initial investigative traffic stop was not supported by reasonable suspicion, (2) the police questioning during the initial seizure was unreasonable, and (3) the subsequent external canine search of his vehicle was not supported by reasonable suspicion.

1. Initial Traffic Stop

Trooper Lee articulated one observed traffic violation—failure to maintain a travel lane—to justify the investigatory traffic stop. Doc. # 45–1, Ex. A. Specifically, the trooper observed Wendfeldt's vehicle “drive onto the north fog line multiple times within one mile, as it traveled in the # 2 westbound travel lane, which was contrary [to] and in violation of [NRS 484B.223 ].” Id. Although the Nevada Supreme Court has not interpreted NRS 484B.223 on this issue,³ other courts have held that a minor, isolated crossing of a lane line does not violate a statute requiring a driver to safely maintain his or her travel lane. In Delgado–Hernandez, the Ninth Circuit concluded that the defendant did not violate NRS 484B.223(1) by briefly crossing over the fog line...