The opinion of the court was delivered by: Sam A. Crow, U.S. District Senior Judge
This case arises from a traffic stop of a motor home which gave rise to a search which revealed several suitcases and other bags containing approximately 323 pounds of marijuana. Each defendant is charged with one count of possession of marijuana with intent to deliver. The case comes before the court on the following motions: Motion to Sever by defendant Meraz; Motion to Suppress by defendant Meraz; Motion to Suppress by defendant Ramirez; and Motion for Joinder by defendant Ramirez. The government has filed a joint response. An evidentiary hearing was held on March 22nd, and the Court permitted the parties to file supplemental briefs. All parties have done so. Having reviewed the supplemental briefs, the Court is ready to rule.
Defendant Meraz challenges the scope of the traffic detention, the search of the motor home, and the voluntariness of any statements he made, but does not challenge the initial stop. Defendant Ramirez additionally challenges the initial stop.
On September 17, 2010, Trooper Nicholas of the Kansas Highway Patrol observed a motor home traveling eastbound on Interstate 70 in Wabaunsee County, Kansas. He could not see the vehicle's tag, so decided to follow it. The Trooper pulled behind the motor vehicle and observed that defendant's vehicle had a license tag on it, but it stated the expiration date of July of 2010. Trooper Nicholas testified that after seeing the outdated sticker and before he stopped the vehicle, he contacted his dispatcher who confirmed the tag was expired. After seeing the expired tag, he decided to stop the motor home. Trooper Nicholas testified that when he sees a tag that appears to be expired, his practice is to stop the vehicle, because it's a violation of Kansas law not to have a current tag with a current registration sticker.
Trooper Nicholas activated his lights and the motor vehicle stopped. He approached the vehicle on the passenger side and spoke to the driver, defendant Meraz. He explained that the tag was expired, learned that the vehicle had been rented by defendant Ramirez, and asked for their paperwork. He received the insurance and the rental papers, and learned that neither defendant had a driver's license or any other identification with them. He reviewed the rental agreement and noted its stated date of departure from Albuquerque, New Mexico, was September 15th, and the return date was September 20th, 2010.
Trooper Nicholas asked defendant Meraz about his travel plans. He was initially informed that defendants were traveling to Chicago to visit his sister and was later informed they were going there to be there a couple of days because his mother was having an operation for "vertigo veins." Because neither defendant had any identification, Trooper Nicholas asked them to write down their names, dates of birth and addresses. Trooper Nicholas asked where they lived, whether either had any form of identification, and which state had issued defendant Meraz's previous driver's license. Defendant Meraz stated that his last license was from Illinois. Trooper Nicholas reaffirmed that the tag had expired in July of 2010, and stated that he had run it through dispatch, who confirmed it had expired.
Trooper Nicholas then returned to his patrol car with the paperwork, requested a back-up trooper for his safety, and requested that dispatch check the identification information given by defendants.
Trooper Nicholas then reapproached the motor vehicle and asked defendant Meraz to exit the vehicle. While standing outside the vehicle, Trooper Nicholas asked about weapons, and defendant Meraz produced a knife (four inches long when folded) which he gave to the trooper. Trooper Nicholas did a consensual pat down, then asked about travel plans. Defendant Meraz stated that his mother's operation was on Wednesday or Monday, "one of the two," that his mother was still at home, and that her operation was for vericose veins. He stated that he had lived in New Mexico for 12 or 15 years off and on, that he had not had a license for "a while" but was fighting for it, and that his girlfriend, defendant Ramirez, had a valid driver's license. Trooper B.K. Smith arrived and Trooper Nicholas soon thereafter returned defendant Meraz to the motor home, conferred with Trooper Smith, and requested a III check.
Trooper Nicholas found both defendants to be nervous throughout the stop, found the length of the rental period concerning because those vehicles are expensive, defendant had rented the vehicle in Albuquerque or Rio Rancho, New Mexico, the rental period (from the 15th to the 20th) was expiring in two days and they had not yet reached their destination (Chicago), and defendants could have rented a car for only two people. Trooper Nicholas also found the stated reason for the trip to be suspicious because defendant Meraz initially stated they were going to see his sister, but later said they were going to Chicago for his mother's surgery. Defendant had at first offered one medical condition for his mother, then another. Trooper Nicholas found it unusual that he could see no personal items in the motor home from his view standing at the door, because he can usually see at least some such items in motor homes. Trooper Nicholas had been trained to look for drugs flowing from the southwest to the northeast, and found it significant that defendants were coming from New Mexico, which borders Mexico, a source area, and were going to Chicago, a large urban area well known for its use of drugs.
Trooper Nicholas decided to seek consent to talk further with defendants. Trooper Nicholas returned to the motor home and told defendant Ramirez she would have to drive, since she had a valid license. He thentold defendants he was not going to issue a ticket, returned all their paperwork, and told defendants to have a safe trip. One of the defendants responded, "Thanks," and asked where a gas station was, and he told them. Trooper Nicholas again told defendants, "Have a safe trip," and took a step away from the vehicle or pivoted, before turning back to the vehicle.
Trooper Nicholas then asked defendant Meraz if he would answer some quick questions, and defendant Meraz admits that he agreed. Trooper Nicholas asked whether they were going to extend the rental period, which expired in three days, and why they had not rented a car instead of a motor home. Defendants responded that they intended to extend the rental period and that they planned to pick up family and bring them back with them. Trooper Nicholas then asked whether they had anything illegal in the vehicle, such as weapons, guns, or drugs, to which defendant Meraz responded, "Just the knife," which the trooper had previously seen.
Trooper Nicholas then requested consent to search the vehicle. Both defendants were in or near the door to the vehicle. Trooper Nicholas testified that when he requested consent to search, defendant Meraz said "Yeah," then the trooper asked, "Is that OK?" and defendant Ramirez replied, "Yes." Trooper Smith testified that he was present when Trooper Nicholas asked for consent to search. He stood on the passenger side of the motor home, near its rear wheels, approximately 12' away from the door to the motor home. He heard Trooper Nicholas ask for consent, and heard defendants answer affirmatively. Conflicting testimony was offered by defendant Ramirez, who stated that when asked for consent, defendant Meraz indicated no by shaking his head. She testified that she was on the phone and never responded to the trooper's question because he was not looking at her or directing the question to her. The trooper's questions to defendant Meraz were not asked separately, but all at once, in a "run on." She stated that she was never asked for consent, and never consented to a search.
Trooper Nicholas then directed defendant Ramirez to step down from the motor home, and asked defendants if there was anything in there he needed to know about, to which the defendants did not respond. Defendant Ramirez admitted that she stepped out of the vehicle and saw the trooper enter the motor home, but did not say anything to either Trooper Nicholas or to Trooper Smith, who stood on the threshold. Neither she nor defendant Meraz objected to the search.
After consent was given, Trooper Smith told defendants to stand in front of the motor home, where he kept an eye on them while Trooper Nicholas searched the vehicle. Trooper Nicholas found suitcases and other bags full of marijuana in the motor home. When Trooper Nicholas came out and said he had found marijuana in the motor home, Trooper Smith arrested and handcuffed both defendants. He testified that he spoke with them shortly thereafter, and advised them of their rights by reading them from his Miranda card in full. Neither defendant voiced any lack of understanding, and both remained silent. No contradictory testimony was offered relating to Miranda warnings.
The sole proffered justification for the traffic stop was an expired tag on the motor vehicle. Trooper Nicholas testified that he observed the tag which appeared to be expired in July of 2010, and that dispatch confirmed the tag was in fact expired before he stopped the motor home. Defendants contend that neither the video/audio tape of the stop nor the audio tape of dispatch communications includes any confirmation from dispatch prior to the stop that defendant's vehicle had an expired license tag. See Gvmt. Exh. 1; Def. Exh. 400. Defendants thus challenge Trooper Nicholas's credibility, and allege he had no reasonable suspicion to warrant a traffic stop.
When an officer initiates a routine stop for an observed traffic violation, the constitutionality of the seizure is analyzed pursuant to the two-prong test provided by Terry v. Ohio, 392 U.S. 1 (1968). United States v. Clarkson, 551 F.3d 1196, 1201 (10th Cir. 2009). The first inquiry is whether the stop was justified at its inception by reasonable suspicion the driver committed a traffic violation. United States v. Martinez, 512 F.3d 1268, 1272 (10th Cir. 2008).
Trooper Nicholas testified that before he stopped the motor home, he saw the motor home's license tag and believed it to be expired, and had received confirmation from dispatch that its registration sticker was in fact expired. Driving with an expired license plate is a misdemeanor under Kansas law. See KSA §§ 8-133, 8-142, 8-149.
The video/audio of the traffic stop does not begin until Trooper Nicholas activated his emergency lights immediately prior to the stop, so does not capture any calls to dispatch before that time. The dispatch tape, however, records his request to run the tag, and dispatch's response that the tag expired on July 31, 2010. Trooper Nicholas then asks, "You do show it's expired?" and dispatch responds affirmatively. Unfortunately, the dispatch tape itself is of little value, as if fails to establish when that request occurred. This conversation is closely followed by the Trooper's request to run defendant's names and addresses, which he received during the stop. Defendants imply that Trooper Nicholas did not receive confirmation from dispatch that the tag was expired until soon before he ran defendants' identification, both of which would have been after the stop.*fn1 However, the video/audio which begins at the initial stop does not reflect Trooper Nicholas asking to run the tag or saying, "You do show it's expired," which suggests that this communication with dispatch was before the stop.
Regardless of whether dispatch did or did not confirm the expired tag before the stop began, the court finds that at the time of the initial stop, Trooper Nicholas had a reasonable suspicion that defendants had committed a traffic infraction or a crime. A trooper's testimony alone is sufficient, if credible, to establish reasonable suspicion to support a traffic stop. United States v. White, 584 F.3d 935, 946 (10th Cir. 2009). Cf United States v. Sergei Paul Ludwig, __ F.3d __ (10th Cir. April 22, 2011). Accordingly, confirmation by dispatch is not necessary to establish the legality of the initial stop. Nothing on either exhibit impeaches the trooper's Testimony. But even assuming that Trooper Nicholas may have erred in recalling that he contacted dispatch about the expired tag before the stop, rather than during the stop, such a failure in recollection is not so serious as to impeach his testimony that he saw the tag and believed it to be expired before he stopped the vehicle. Because Trooper Nicholas credibly testified that he had reasonable suspicion to believe that the defendant had violated one of the multitude of applicable traffic and equipment regulations of the jurisdiction, the initial stop shall be upheld. See Whren v. United States, 517 U.S. 806, 810 (1996).
Defendant Meraz contends that he was unlawfully detained "for the purpose of allowing time for a backup trooper to arrive," and this detention was not reasonably related to the reason for the traffic stop. Dk. 28, p. 4. The backup trooper arrived approximately eight and one-half minutes into the stop. Approximately 12 ...