US v. Hernandez, 95-40024-01-SAC.

• Decision Date: 18 May 1995
• Docket Number: No. 95-40024-01-SAC.,95-40024-01-SAC.
• Citation: 893 F. Supp. 952
• Parties: UNITED STATES of America, Plaintiff, v. Robert HERNANDEZ, Defendant.
• Court: U.S. District Court — District of Kansas

893 F. Supp. 952

UNITED STATES of America, Plaintiff, v. Robert HERNANDEZ, Defendant.

No. 95-40024-01-SAC.

United States District Court, D. Kansas.

May 18, 1995.

COPYRIGHT MATERIAL OMITTED

John J. Ambrosio, Topeka, KS, F.G. Manzanares, Topeka, KS, Tony Chavez, Odessa, TX, for defendant.

James E. Flory, Office of U.S. Atty., Topeka, KS, for the U.S.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the defendant's motions to suppress statements (Dk. 20) and to suppress evidence (Dk. 21). The government filed a written response in opposition.¹ (Dk. 27). The court heard argument and evidence on these motions on May 16, 1995. After reviewing the parties' briefs and the controlling law, the court is ready to rule.

FACTS

Around 10:40 a.m. on March 26, 1995, Trooper B.K. Smith with the Kansas Highway Patrol was patrolling I-35 highway in Osage County, Kansas. Trooper Smith was travelling northbound on I-35 and checking the speed of southbound traffic with his radar. Ahead of him in the northbound lane of traffic, Trooper Smith saw a blue car in the passing lane pull in front of a U-Haul truck and apply its brakes. When the U-Haul truck braked in response to the blue car's brake lights, Trooper Smith saw that the U-Haul truck's right brake light did not operate. As he sped up to stop the U-Haul truck, Trooper Smith saw the U-Haul truck cross the solid white line separating the driving lane and the right shoulder.

Without seeing the driver or knowing the driver's gender or race or that of any occupants, Trooper Smith drove up behind the U-Haul truck and signaled with his lights for it to pull over. Trooper Smith testified he stopped the truck for the stop lamp violation and for the lane violation. As he walked toward the truck cab, Trooper Smith saw that the driver was the only occupant. Smith detected the strong smell of "soap" coming from the cab. From his training and experience, Smith knew that various strong odor-producing items are often used to mask the odor of drugs.

Trooper Smith asked in English for the driver to produce his driver's license and the truck rental agreement. The driver provided a Minnesota driver's license that identified him as Robert Hernandez of St. Paul, Minnesota. Smith noticed that Hernandez's address in St. Paul was similar to or in proximity to the address of another individual who was carrying a large amount of cash when Smith stopped him in February of 1995. Trooper Smith asked Hernandez in English to step from the truck and accompany him to the patrol car. Smith testified it was his routine and that of other troopers to escort the drivers to the patrol car during the license check and citation process. Smith noticed that Hernandez appeared nervous as his hands were shaking and his breathing was rapid and shallow.

During the license check and the citation writing, Smith conversed in English with Hernandez about his travel plans. Hernandez told Smith he was travelling from Odessa, Texas to St. Paul, Minnesota. Hernandez said he was a roofer and was moving his roofing supplies and other items like clothes and furniture to St. Paul, Minnesota. Hernandez was able to communicate with Smith using his limited English skills and hand gestures.

Trooper Smith issued a written warning citation for the brake light and the lane violations and returned to Hernandez his license and rental agreement. Smith told Hernandez: "That is all I have for you." As Hernandez turned in his seat towards the patrol car door, Smith asked if he could ask Hernandez a few more questions. Hernandez answered "yes."

Smith inquired in English if Hernandez was hauling anything illegal. Hernandez answered "no." Trooper Smith then asked Hernandez in English if he could search the truck. Upon receiving a "yes" from Hernandez, Smith repeated the question in Spanish and pointed to the question in his "Street Officers' Complete Spanish Guide." Smith had Hernandez read the question aloud. This question asks, "Puedo registrar su carro?"² Hernandez answered this question "yes" in Spanish.³

After receiving Hernandez's consent, Trooper Smith asked Hernandez to unlock the cargo doors on the U-Haul truck. Hernandez retrieved the keys from the truck cab and returned to the rear of the truck. Smith told him to unlock the padlock. Hernandez looked upward and exhaled before unlocking the padlock and opening the cargo doors. With the doors opened, Trooper Smith was immediately struck by the strong smell of what he knew by training and experience was "raw" or non-burning marijuana. Smith looked over the cargo area and saw several taped new packing boxes towards the front. Smith climbed into the cargo area and opened one of the boxes. He saw what appeared to be blocks of marijuana wrapped in gray duct tape. Smith drew his weapon and arrested Hernandez. Trooper Smith received a positive reading for marijuana on his field test of one of the taped blocks. After the arrest, Smith handed his Spanish guidebook to Hernandez and asked him to read aloud the Miranda warnings written in Spanish. Hernandez said he understood his rights and would cooperate.

After he was taken to the Osage County Sheriff's Office, Hernandez was interviewed by Special Agent Thomas Walsh with the United States Drug Enforcement Administration. Walsh, who speaks Spanish, read Hernandez his Miranda rights in Spanish and had Hernandez follow along the reading on a Miranda card written in Spanish. Hernandez signed the card. When asked by Walsh, Hernandez said that he had no questions about those rights and that he would talk with Walsh. Hernandez told Walsh about his transportation of the marijuana. During the interview, Hernandez invoked his right to an attorney and the right to remain silent. At that point, Walsh ceased the interview.

ISSUES

The defendant's motions break down into the following issues:

1. Did Trooper Smith have reasonable suspicion to stop Hernandez for traffic violations?

2. Did Trooper Smith make a pretextual stop?

3. Did Trooper Smith unreasonably detain Hernandez?

4. Was Hernandez's consent to search voluntary?

5. Were Hernandez's statements voluntary?

"Although `the proponent of a motion to suppress bears the burden of proof in general terms, ..., whenever the government relies on the consent of the defendant to validate a search the government bears the burden of proving that the consent `was freely and voluntarily given.'" United States v. Sandoval, 29 F.3d 537, 539 (10th Cir.1994) (citations omitted).

REASONABLE SUSPICION TO STOP

The Fourth Amendment protects against unreasonable search and seizures. United States v. McSwain, 29 F.3d 558, 561 (10th Cir.1994); United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990), cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991). "The stopping of a vehicle and the detention of its occupants constitute a `seizure' within the means of the Fourth Amendment. An ordinary traffic stop is a limited seizure, however, and is more like an investigative detention than a custodial arrest." United States v. Walker, 933 F.2d 812, 815 (10th Cir.), reh'g denied, 941 F.2d 1086 (10th Cir.1991), cert. denied, 502 U.S. 1093, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992); see United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.) ("A traffic stop is an investigative detention analogous to a Terry-stop.") (citing United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993)), cert. denied, ___ U.S. ___, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994); United States v. Sanchez, 866 F.Supp. 1542, 1550 (D.Kan.1994).

"A brief investigative stop only requires `some objective manifestation that the person stopped is ... engaged in criminal activity.'" United States v. Eylicio-Montoya, 18 F.3d 845, 848 (10th Cir.1994) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). "In light of the totality of the circumstances, the officers must have a `particularized and objective basis for suspecting the particular person stopped of criminal activity.'" Id. In short, only an articulable and reasonable suspicion of criminal conduct is necessary for an investigative stop of an automobile. United States v. Arzaga, 9 F.3d 91, 93 (10th Cir.1993). Having seen the brake light fail to work and the truck fail to maintain a single lane of traffic, Trooper Smith had a particularized and reasonable suspicion to stop Hernandez for the traffic infractions. The government has introduced a photograph taken on March 26, 1995, shortly after the stop that shows the left rear brake light glowing but not the right one.

PRETEXTUAL STOP

"A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop." Arzaga, 9 F.3d at 93 (quoting United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988)). Simply put, a pretextual stop is one that is ostensibly made for a lawful reason but this reason is really a pretext for another reason that is impermissible. United States v. Maestas, 2 F.3d 1485, 1489 (10th Cir.1993). "`The classic example, presented in this case, occurs when an officer stops a driver for a minor traffic violation in order to investigate a hunch that the driver is engaged in illegal drug activity.'" United States v. Castillo, 864 F.Supp. 1090, 1094 (D.Utah 1994) (quoting Guzman, 864 F.2d at 1515). Because the government has offered a justification for the stop, Hernandez must now carry the burden of proving that the asserted justification is pretextual. United States v. Maestas, 2 F.3d at 1491-92.

The presence of an improper motive, by itself, does not compel a finding that the stop was pretextual. United States v. Maestas, 2 F.3d at 1489. At the same time, the presence of a valid reason does not preclude a finding that the stop was pretextual. United States v....