The opinion of the court was delivered by: Julie A. Robinson United States District Judge
Defendant Felipe J. Perales is charged with possession with intent to distribute seven pounds of methamphetamine inviolation of 21 U.S.C. § 841(a)(1). Before the Court are defendant's Motion to Preserve Evidence (Doc. 9), Motion to Suppress (Doc. 14) and Motion to Suppress Statements (Doc. 15). On October 20, 2008, the Court heard testimony and received evidence, after which the Court took the matters under advisement. For the reasons detailed below, defendant's motion to preserve evidence is granted and defendant's suppression motions are denied.
After reviewing the testimony and the videotape of the traffic stop, the Court finds the following facts relevant to the determination of the issues before the Court.*fn1
On June 4, 2008, at approximately 6:58 p.m., Kansas Highway Patrol Troopers Luka Henderson and Andrew Dean were turning their patrol car around in the median to travel east on Interstate 70, when Trooper Henderson noticed a Toyota Echo traveling eastbound at about 65 miles per hour on a flat, straight section of Interstate 70. Though it was nearly 7:00 p.m., it was still sunny, with clear skies. Trooper Henderson observed that the Toyota Echo crossed over the "fog line," that is the line demarcating the right lane of traffic from the right shoulder. The vehicle did not just barely cross over the fog line; rather about half of the width of the vehicle crossed over the fog line onto the shoulder. The vehicle continued to travel in this position over the fog line for about 75 to 100 feet. After returning to its lane, the vehicle noticeably continued to weave within the lane. Trooper Henderson immediately wondered whether the driver had fallen asleep or was impaired in some manner; and Trooper Henderson thought that the vehicle was endangering the roadway. Trooper Henderson turned on his emergency lights and pulled the vehicle to the side of the road for failure to maintain a single lane.
Trooper Henderson approached the vehicle on the passenger side and requested defendant's driver's license and insurance documentation. Trooper Henderson explained that he did not intend to give defendant a citation; rather he wanted assurance that defendant was not impaired, as the Toyota drifted over the fog line "real quick." While searching for his insurance papers and driver's license, defendant told Trooper Henderson that he had been stopped earlier that day by another officer. Trooper Henderson asked defendant where he was traveling from and where he was heading. Defendant stated that he was traveling from California and headed to Kansas City to meet a friend and obtain employment. After receiving defendant's insurance and driver's license, Trooper Henderson returned to his patrol car and ran a driver's license and insurance check. The check revealed that the Toyota was a salvaged vehicle owned by Rosa Arellano, who was not present in the vehicle. Trooper Henderson also noticed that the Toyota had just been insured within the past month and had just been registered within the past six months. Based on his experience and training, Trooper Henderson knew that drug couriers sometimes use salvaged vehicles for transportation of illegal narcotics. After checking defendant's driver's license, which listed defendant's name as Gonzalez Acosta, Trooper Henderson returned to the Toyota and returned defendant's driver's license and insurance document to defendant.
After returning defendant's documents, Trooper Henderson asked defendant where exactly in Kansas City he was going and defendant responded that he was going to the "center" where he would call a friend to pick him up. Trooper Henderson walked to the rear of the Toyota before returning to ask defendant if he had any illegal drugs in the vehicle. Defendant, without difficulty communicating, stated that he did not. Trooper Henderson then asked defendant if he could search the vehicle, to which defendant responded "yes."
When Trooper Henderson obtained permission to search the vehicle, Trooper Dean, who stayed in the patrol car during the initial contacts with defendant, approached to help Trooper Henderson search the vehicle. Defendant exited the Toyota and was told to stand in front of the vehicle while the officers searched it. Defendant was wearing a baggy white shirt that did not move in the wind when he stepped out of the vehicle.
Trooper Dean approached the driver's side of the vehicle to begin his search. He looked at the steering panel and noticed that the dash and steering panel looked out of place. Using his pocket knife, Trooper Dean probed at the crack between the steering panel and the dash until the steering panel fell, revealing gaps in the dash. Trooper Dean shone his flashlight into the gaps and noticed what he believed to be illegal contraband. The items were subsequently removed and found to be methamphetamine. Defendant was placed under arrest and read his Miranda rights. On the way to Topeka, in the course of questioning the defendant, the troopers learned that defendant's real name was Felipe Perales and that he had an outstanding warrant in Oregon. The officers also learned that defendant was an illegal immigrant.
The troopers arrived in Topeka and met with Drug Enforcement Agent James Morgan in the Topeka Police Department parking lot. Morgan read defendant his Miranda rights and asked him if he was willing to cooperate in a controlled delivery. During the interview, Agent Stanchitis, who is fluent in Spanish, was available to interpret, but was not utilized because defendant did not have trouble understanding English. Defendant was initially agreeable, but did not cooperate to the agents' satisfaction. Defendant told Morgan that he was to call someone once he arrived in Kansas City, but did not give agents the name of the individual, although he provided a phone number for the individual, from memory. Defendant told agents that he had the Toyota for two months and that he had borrowed it from a person whom he refused to identify. After the interview, agents decided that defendant was not sufficiently cooperative to conduct a controlled delivery.
Defendant's first claim is that Troopers Henderson and Dean did not have reasonable suspicion to stop the Toyota. Defendant claims that a quick drift over the fog line in windy conditions was not enough to give officers reasonable suspicion that defendant violated K.S.A. § 8-1522.*fn2
"Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the detention quite brief."*fn3 The reasonableness of a stop is analyzed under Terry v. Ohio;*fn4 the test is whether the stop was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the stop in the first place.*fn5 "[A] traffic stop'is reasonable under the Fourth Amendment at its inception if the officer has either (1) probable cause to believe a traffic violation has occurred or (2) a reasonable articulable suspicion that'this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.""*fn6 Thus, the question before the Court is whether, under the circumstances, Troopers Henderson and Dean had probable cause to stop the Toyota or at the least, reasonable suspicion that defendant was impaired in some way.
The relevant Kansas statute provides that "[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety."*fn7 In United States v. Gregory,*fn8 the Tenth Circuit found that a single incident of drifting over the fog line did not give officers probable cause to stop a U-haul truck that was driving on Interstate 70.*fn9 The Court reasoned that a single drift of two feet over the fog line was not a violation of Utah's traffic laws, for the windy weather and winding, mountainous road conditions made it difficult for the defendant to keep the vehicle and trailer within a single lane.*fn10 But in United States v. Ozbirn,*fn11 the Tenth Circuit concluded that the officers had probable cause to stop defendant for violation of K.S.A. § 8-1522 when his motor home ...