US v. Wood
| Decision Date | 10 January 1996 |
| Docket Number | No. 95-40025-01-SAC.,95-40025-01-SAC. |
| Citation | 915 F. Supp. 1126 |
| Parties | UNITED STATES of America, Plaintiff, v. Terry L. WOOD, Defendant. |
| Court | U.S. District Court — District of Kansas |
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Pedro L. Irigonegaray, Irigonegaray & Associates, Topeka, KS, Jerold E. Berger, Topeka, KS, for defendant.
James E. Flory, Office of United States Attorney, Topeka, KS, for plaintiff.
The case comes before the court on the defendant's following pretrial motions: motion for discovery of canine records (Dk. 17); motion for discovery, inspection, and disclosure of radio transmission tapes or transcripts of the tapes (Dk. 25); motion for discovery of policy statements and guidelines (Dk. 27); motion to suppress (Dk. 29); motion for discovery of laboratory reports and canine maintenance records (Dk. 31); motion for discovery of canine records of daily field activities (Dk. 39); and motion for evidentiary hearing (Dk. 41). The parties presented arguments and evidence at the hearing held on the afternoon of November 30, 1995, and the parties completed their presentations on the afternoon of December 4, 1995.
The defendant asked for and was granted leave to supplement his memoranda on the issue of a pretextual stop no later than December 15, 1995. By minute order filed December 14, 1995, the court alerted the parties to a recent Tenth Circuit decision, United States v. Botero-Ospina, 71 F.3d 783 (10th Cir.1995), and extended their deadlines for filing supplemental briefs in order that they could address the impact of Botero-Ospina on the pretextual stop issues here. Having received and reviewed all matters submitted to the court as evidence or memoranda and having conducted independently its own research of the legal issues, the court is ready to rule.
The defendant is charged with one count of possession with the intent to distribute in excess of 100 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1). The superseding indictment charges specifically:
(Dk. 3) (footnoted omitted).
Based on the testimony, videotape and documents submitted at the hearing, the court finds the following facts relevant in its decision on the pending motions. On March 31, 1995, around 5:40 p.m., the defendant, Terry L. Wood, was driving a white 1995 Mercury Marquis in the eastbound lane of I-70 in Trego County, Kansas. Richard L. Jimerson, a trooper with the Kansas Highway Patrol for the last eight years, had just started his shift and had entered I-70 on the westbound lane. The first vehicle seen by Trooper Jimerson was the defendant's car. It was travelling in the eastbound lane approximately two miles west of a construction zone, and it was the only car in the vicinity. Trooper Jimerson observed that the car appeared to be speeding. He attempted to check its speed by radar, but the large concrete overpass nearby prevented the radar from registering a speed. Trooper Jimerson noticed that the car was white and newer and was being operated by a clean-cut white male.
Trooper Jimerson continued driving westbound into a curve for approximately one-half mile. Sure that the defendant now could not see him, Trooper Jimerson slowed, turned around in the median, and proceeded on the eastbound lane. Unable to check the defendant's speed with his radar, Trooper Jimerson accelerated to catch up with the defendant's car so that he could check its speed by stopwatch and by pacing. The defendant's car had entered a construction zone with a posted speed limit of 55 miles per hour by the time Trooper Jimerson was close enough to start the stopwatch. Trooper Jimerson estimated he was approximately a quarter of a mile behind the defendant when he started the stopwatch at mile marker 127. Trooper Jimerson paced the defendant's car for approximately one-half mile. Both the stopwatch and the pacing indicated that the defendant was travelling 67 miles per hour in the construction zone or twelve miles per hour over the posted speed limit. Trooper Jimerson then signalled the car to stop using his patrol car's wigwag headlights and red rotating light. The defendant pulled his car over around six-tenths of a mile past mile marker 128.
The videotape taken by Trooper Jimerson shows him approaching the defendant's car and returning to his car approximately one minute later. The videotape does not record what was said during this initial conversation. Trooper Jimerson testified that he asked for the driver's license and registration papers, and told Wood that he had been stopped for driving 67 miles per hour in a 55 miles per hour construction zone. Trooper Jimerson said he immediately noticed that the defendant appeared "extremely nervous," as his hands were trembling, his breathing was rapid, and he cleared his throat several times. Trooper Jimerson further testified that he observed sacks from fast food restaurants and a couple of opened maps strewn on the rear floorboard. When he saw a cellular phone with a credit card function attached to the car, Trooper Jimerson said he surmised it was a rental car and asked for the rental papers. Trooper Jimerson also testified that he asked Wood about his travel plans and where he had rented the car. According to Jimerson, Wood said the car had been rented in San Francisco and that he was driving it home to Topeka. The videotape shows that Trooper Jimerson's request for the license and rental agreement and brief questions took less than a minute.
The videotape records the following events and conversations. Trooper Jimerson returned to his patrol car and called dispatch for a computer check on Wood and specifically requested a criminal history or triple I (Interstate Identification Index) check. After calling dispatch, Trooper Jimerson asked Wood to come back to the patrol car. Inside the patrol car, Trooper Jimerson confronted Wood with the rental papers that showed he had rented the car in Sacramento and not San Francisco and that he was to return the car to the Sacramento airport tomorrow. When Wood said he was returning the car to Topeka tomorrow, Jimerson asked if the rental company knew of Wood's plans, and Wood said that the company had a one-way trip policy and that the company knew what his intentions were.
Trooper Jimerson followed up with a question whether Wood had flown into Sacramento. Wood responded affirmatively and then volunteered some of the sights visited on his vacation. Jimerson next laughingly asked Wood about the rental agreement's restriction against travel to Mexico. Jimerson next commented that Wood had received a favorable rental rate and then asked Wood if the car was a 1995 model with low mileage. Wood again answered affirmatively. Jimerson next asked Wood what kind of work he did in Topeka. When Wood said he was a painter, Jimerson asked if this was a vacation time or just a slow season for painting. Wood told him that it was a slow period, that he was drawing unemployment compensation, and that he would start working again in six weeks. Wood then volunteered that his father was a contractor and that he worked for his father. Jimerson next asked Wood if he was "originally from" San Francisco, and Wood told him "no," that he was from Topeka. Jimerson then asked if Wood's sister lived in California, and Wood answered that his sister also lived in Topeka and had accompanied him on the vacation and then returned by plane while he drove back to see the scenery. Wood and Jimerson exchanged some comments about the sights, and then Wood asked Jimerson how his "day was going." After Jimerson answered Wood's question, Wood then talked more about his drive back to Kansas. Jimerson asked Wood about the route he took.
After taking dispatch's call and learning that the triple I check on Wood showed a "5D" or a narcotics arrest, Trooper Jimerson asked Wood if he had ever been arrested. Wood said "yes" in 1984 for drugs. Jimerson asked him if the arrest was for a misdemeanor, and Wood told him it was a felony conviction in Kansas. Jimerson then asked if he had been arrested anywhere else besides Kansas, and Wood said "no." Jimerson then presented Wood with the warning citation and other papers and explained the reason for the lower speed limit in the immediate area. Jimerson told Wood that he was free to go and that he would like to ask him some questions. Before Wood answered Jimerson's request to ask questions, Jimerson inquired if there were drugs in Wood's car. Wood denied that there were any drugs in the car, and then refused Jimerson's subsequent request to search the car. Jimerson told Wood that he believed there might be something in the car and that he was going to get a canine to check the car. Jimerson told Wood that while he was free to go the car would stay at the scene until the canine search was completed. The videotape shows that less than eight minutes elapsed between the stop and Trooper Jimerson's announcement that he would detain the car for a canine search.
Trooper Jimerson radioed in his request for a canine unit to search the car. Wood repeatedly asked if he could take his contents and leave. Jimerson explained that the car and its contents would stay until sniffed by the canine and that the defendant could wait in his car or in the patrol car or that he could make arrangements to wait at the exit. Trooper Stithem arrived on the scene about this time, and Trooper Jimerson explained the circumstances of the stop and his suspicion for detaining the car for a canine search. The videotape ends here.
Trooper Jimerson testified that Wood sat in his car for about ten or...
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