US v. Morales, Cr. No. 89-66-JC.

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Writing for the Court: CONWAY
• Citation: 714 F. Supp. 1146
• Decision Date: 02 June 1989
• Docket Number: Cr. No. 89-66-JC.
• Parties: UNITED STATES of America, Plaintiff, v. Adela MORALES, Defendant.

714 F. Supp. 1146

UNITED STATES of America, Plaintiff,
v.
Adela MORALES, Defendant.

Cr. No. 89-66-JC.

United States District Court, D. New Mexico.

June 2, 1989.

714 F. Supp. 1147

Larry Gomez, Asst. U.S. Atty., Albuquerque, N.M., for plaintiff.

Nancy Hollander, Albuquerque, N.M., for defendant.

MEMORANDUM OPINION

CONWAY, District Judge.

THIS MATTER came on for consideration of defendant's Motion to Suppress Evidence Obtained By Unlawful Search and Seizure, filed February 28, 1989. The Court held a hearing on March 31, 1989 at which time counsel for both parties presented the testimony of witnesses and made oral argument to the Court. Having taken the motion under advisement at the conclusion of the hearing, the Court is now ready to rule.

The fundamental issue before the Court is whether a law enforcement officer, in the course of a roadblock properly established for the purpose of checking driver's license, registration and proof of insurance, may walk a narcotics-trained dog around the exterior of a vehicle stopped at the roadblock when the canine sniff occurs before the driver's document check has been completed and when the officer has no reasonable, articulable suspicion that a crime is being committed.¹ I find that such action is violative of the Fourth Amendment to the United States' Constitution and that the evidence discovered as the result of the canine sniff must be suppressed.

I. RELEVANT FACTS

On February 10, 1989, Adela Morales and her seven-year old son were traveling north on Interstate 25 near milemarker 147 when Ms. Morales was stopped at a roadblock conducted by the Socorro Police Department. The principal purpose of the roadblock was to check for driver's license, vehicle registration and proof of insurance. Pursuant to a request from Officer Presilio Vaiza, Ms. Morales produced her driver's license, automobile registration and proof of insurance. While Officer Vaiza was checking her documents, Officer Edward Britt walked a narcotics-trained dog around the exterior of the vehicle. The dog alerted on Ms. Morales' car before Officer Vaiza had finished the document check. The dog used by Officer Britt was trained only to alert on narcotics. It had no other skilled training of any kind. Its only purpose at the roadblock was to ferret out narcotics.

Once the dog alerted, Officer Britt radioed Officer Johnnie Trujillo, the assistant Chief of Police for the Socorro Police Department. Officer Trujillo responded to the radio call by walking down the roadblock to Ms. Morales' car. After conferring with Officers Vaiza and Britt, Officer Trujillo took Ms. Morales' paperwork from Officer Vaiza and asked her to pull her car over to the side of the road. Officer Trujillo explained to Ms. Morales that the officers wanted to see what was inside the trunk of her car, read her her Miranda rights and asked her for consent to search. Officer Trujillo then asked Ms. Morales to get out of her car so she could sign a consent-to-search form. Officer Trujillo directed Detective Joel Haley to assist Ms. Morales in signing the form. Detective

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Haley filled out those portions of the form having to do with vehicle identification, had Ms. Morales read the form and asked her to sign it if she was willing to give her consent. At this point, Ms. Morales asked Detective Haley what would happen if she refused to sign. He testified that he replied: "Our policy would be to detain the vehicle and obtain a search warrant for the vehicle." Ms. Morales then agreed to sign the consent-to-search form. The search resulted in the seizure of 126 pounds of marijuana which had been hidden in luggage located in the trunk of the vehicle

It is important to note that two critical facts are undisputed. The first is that prior to the canine sniff, none of the officers at the scene had any suspicion, even an unarticulable or unreasonable one, that Ms. Morales was committing a crime. The second is that when Ms. Morales asked what would happen if she refused to sign the consent-to-search form, she was told that her car would be detained and a search warrant would be procured.

II. THE ROADBLOCK

Officers operating a valid roadblock² may also investigate possible criminal activity outside the scope of the roadblock provided the officers, while making inquiries within the scope of the purpose for which the roadblock was established, develop a reasonable and articulable suspicion that a crime of another nature is being committed. United States v. Lopez, 777 F.2d 543, 547 (10th Cir.1985). Stated another way, if, in the process of checking driver's license, registration and proof of insurance, the officers see evidence of other crimes, they have the right to take reasonable investigative steps and are not required to close their eyes to suspicious circumstances. United States v. Prichard, 645 F.2d 854, 857 (10th Cir.) (citations omitted) (emphasis added), cert. denied, 454 U.S. 832, 102 S.Ct. 130, 70 L.Ed.2d 110, reh'g denied, 454 U.S. 1069, 102 S.Ct. 620, 70 L.Ed.2d 605 (1981). It is undisputable that a canine sniff would be a reasonable investigative step if the officers had some suspicion, some evidence, that another crime was being committed. But grave constitutional questions arise when the canine sniff is routinely performed with no individualized suspicion of wrongdoing at a roadblock established to check driver's license, registration and proof of insurance.

III. CANINE SNIFFS AND THE FOURTH AMENDMENT

The government argues (1) that a canine sniff is not a search and hence is excluded from judicial control of any kind and (2) even if a canine sniff does implicate the Fourth Amendment, the sniff in this case was legal because Ms. Morales had no reasonable expectation of privacy in the airspace surrounding her car. The Court will address each of these arguments separately.

A. Applicability of the Fourth Amendment to Canine Sniffs

The government argues that under United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the Supreme Court held that a canine sniff is not a search and hence not subject to limitation under the Fourth Amendment. If the canine sniff is not a search under the Fourth Amendment, the government reasons that it is entitled to a virtual carte blanche in its use.

Such a broad reading of the Place holding would lead to the conclusion that canine sniffs conducted any place an officer has a lawful right to be, be they sniffs of property or of persons, are not subject to the Fourth Amendment. This argument is not supported by Place or the Tenth Circuit's understanding of Place³. It is one that

714 F. Supp. 1149

this Court and others will not countenance. See, e.g. United States v. Thomas, 757 F.2d 1359 (2nd Cir.), cert. denied sub nom. Fisher v. United States 474 U.S. 819, 106 S.Ct. 66, 88 L.Ed.2d 54 (1985) (canine sniff conducted at the door of a person's dwelling was search requiring warrant based on probable cause); Horton v. Goose Creek Indep. School Dist., 690 F.2d 470 (5th Cir.1982), cert. denied 463 U.S. 1207, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983) (canine sniff of high school student violative of Fourth Amendment when sniff performed without individualized suspicion of criminal activity)

What the Supreme Court did hold in Place was that exposure of an individual's luggage to a trained canine when the luggage was located in a public place and when the authorities had specific and articulable facts warranting a reasonable belief that the individual's luggage contained narcotics was not a search within the meaning of the Fourth Amendment. Place, 462 U.S. at 703, 707, 103 S.Ct. at 2642, 2644. The language which is generally accepted as the holding in Place is:

... we conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent's luggage, which was located in a public place, to a trained canine — did not constitute a "search" within the meaning of the Fourth Amendment.

462 U.S. at 707, 103 S.Ct. at 2645 (emphasis added).⁴ Neither Place nor any other court of which this Court is aware has held that a canine sniff is never subject to the Fourth Amendment. Rather, a court must determine on the facts of the case before it whether or not a canine sniff intruded on an individual's reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

B. Application of the Fourth Amendment to a Canine Sniff Performed at a Roadblock When Officers Have No Individualized Suspicion of Criminal Activity

It is an undisputed fact that, prior to the canine sniff, the officers at the roadblock had no individualized suspicion that Ms. Morales was committing a crime. The government argues that Ms. Morales had no reasonable expectation of privacy in the airspace surrounding her car, hence the canine sniff was not a search under the Fourth Amendment. The Court disagrees.

In arguing that Ms. Morales had no reasonable expectation of privacy, the government contends that the holding in Place is controlling, suggesting that the relevant facts in this case are on all fours with those in Place. This is not the case as "`... an apparently small difference in the factual situation frequently is viewed as a controlling difference in determining Fourth Amendment rights.'" United States v. Rengifo-Castro, 620 F.2d 230, 232 (10th Cir.1980) quoting Arkansas v. Sanders, 442 U.S. 753, 757, 99 S.Ct. 2586, 2589, 61 L.Ed.2d 235 (1979). Given that small differences can be determinative in the Fourth Amendment context, differences of a more significant nature are even more critical. The Court today is faced with facts which differ significantly from those in Place and which significantly affect the relationship between law enforcement officers and the public at large.

The Supreme Court recognizes that "the intrusion on possessory interests occasioned by a seizure of one's personal effects can vary...