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United States v. Arlett

United States District Court, Tenth Circuit

August 23, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN T. ARLETT, Defendant.

MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS

JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant’s Motion to Suppress (Doc. 11) and Motion in Limine (Doc. 12). Defendant John T. Arlett was traveling in a Ford F-450 Super Duty truck on December 19, 2012, when Officer Richard Jimerson stopped him for a commercial motor vehicle inspection. After completing the inspection, Officer Jimerson searched three spools of cable conduit in the back of the truck and eventually located 83 bundles of marijuana. Defendant argues that the initial stop was unlawful and that Defendant’s encounter with Officer Jimerson after the commercial vehicle inspection was not a consensual encounter, rendering any consent ineffective.

On August 8, 2013, the Court held a hearing on the motion to suppress and took the matter under advisement. Having reviewed the evidence and arguments presented by the parties, the Court is now prepared to rule. The Court will not suppress the evidence discovered by the officers. Further, the Government states that it will not introduce the evidence addressed in the motion in limine, so that motion is denied as moot.

I. Facts

Based on the testimony and the videotape evidence submitted at the suppression hearing, the Court finds the following facts by a preponderance of the evidence. On December 19, 2012 at approximately at 12:10 pm, Officer Jimerson observed a white Ford truck heading eastbound on Interstate 70. He observed the truck and believed it to be a Ford F-450 “Super Duty” or F-550 truck, both of which Officer Jimerson believed, based on his experience and training, to have a Gross Vehicle Weigh Rating (GVWR) of over 10, 001 pounds. Officer Jimerson noticed three large industrial spools secured to vehicle’s cargo bed, which appeared to be secured in a manner consistent with a commercial carrier. Officer Jimerson also noted that the truck had a Tommy Gate mechanical lift, a piece of equipment often found on commercial vehciles. The truck did not have a visible USDOT number or company name, and was not marked as “Private Carrier Not For Hire, ” but Officer Jimerson reasonably believed that the truck was a commercial vehicle subject to inspection under Kansas law.

Officer Jimerson is trained as a commercial vehicle inspector and is required to inspect at least twelve commercial motor vehicles per quarter to remain a certified inspector in good standing. He decided to conduct a Commercial Vehicle Safety Alliance North American Standard (NAS) Level II Inspection on the Ford truck. He activated his emergency lights and stopped Defendant’s vehicle. Officer Jimerson made contact with Defendant through the passenger’s-side window and told him he was stopped for failure to display a USDOT number and the company’s name on his vehicle. Defendant stated the truck was private and not commercial, and that his vehicle’s GVWR was 10, 000 pounds, placing it below the threshold for commercial vehicles. Officer Jimerson walked over to the driver’s side to check the manufacturer’s sticker and found the vehicle’s GVWR to be 16, 500 pounds.

Officer Jimerson asked Defendant about his trip and Defendant told him that he had traveled to Albuquerque, New Mexico, to pick up three spools of fiber optic conduit and was now headed to St. Louis. Defendant claimed he worked for Huff Incorporated in Florissant, Missouri and had previously taken the spools to Albuquerque, but a union had gotten involved and precluded the installation of the cable. Defendant said that Huff was not paying for his mileage or the cost of the conduit, and that he believed this made the trip a private trip. Officer Jimerson told Defendant that he would need to display a USDOT number and Huff’s name on his vehicle when he was doing work for Huff Incorporated, because he was subject to commercial vehicle regulations.

Officer Jimerson went back to his vehicle to complete a Driver Vehicle Examination Report and run a communication check on Defendant. The communication check came back with the following information: (1) Defendant had a previous drug arrest in Pennsylvania, (2) the Florissant address for Huff Incorporated was just a post office box, (3) his phone had a Pennsylvania area code, and (4) Huff Incorporated was not located in Florissant. The report was negative on any drug association from New Mexico for Defendant or his car.

Officer Jimerson proceeded to finish filling out the examination report and to issue Defendant a citation. Officer Jimerson gave Defendant his citation and handed back his license and registration, and then Defendant signed a commercial vehicle inspection form. After signing the inspection, Defendant had all of his own paperwork back in his possession. After receiving his documentation, Defendant had his left hand on the steering wheel and right hand on the gear shift, giving the impression that he was ready to leave. Officer Jimerson continued talking to Defendant about the conduit, based on his suspicion that Defendant might be hauling contraband. When asked about the cost of the conduit, Defendant said he did not know, signed an inspection form, and handed a piece of the conduit to Officer Jimerson, which Officer Jimerson then handed back.

Defendant told Officer Jimerson that his wife was in Pennsylvania, and admitted to the previous drug arrest. Officer Jimerson asked Defendant if there was anything inside the spools and whether it would be okay if he looked at them. Defendant agreed. Defendant was extremely nervous throughout his interactions with Officer Jimerson. Defendant then exited the truck, lowered the vehicle’s liftgate, and Officer Jimerson examined the spools. The bolt heads holding the spool together showed signs of recent removal and Officer Jimerson found that the spools appeared to contain a false arbor that could conceal drugs. Officer Jimerson then called Technical Officer Edie with his drug canine PSD Tango. When Officer Edie arrived, he stated that the metal sleeve configuration in the spool did not look normal, based on his prior experience with conduit. Officer Edie deployed PSD Tango, who initially gave an indication that he smelled drugs, but was unable to sit because of the confined space. PSD Tango again alerted to the presence of drugs in the spools, and on this second alert, managed to sit in the confined space. The officers then drilled into the metal sleeve of the spool, used a fiber optic scope to look inside, and noticed cellophane wrapped bundles. Defendant was placed under arrest, given his Miranda warnings, and transported to Topeka. The offiers x-rayed the spool, which revealed 83 bundles inside. The officers field tested the bundles and found them to be positive for marijuana. The officers eventually recovered over 1500 pounds of marijuana.

II. Discussion

Officer Jimerson’s stop of Defendant’s truck falls within the category of regulatory searches.

A regulatory search is governed by the Fourth Amendment but does not require probable cause as defined traditionally by the courts. In general, probable cause, and the less stringent standard of reasonable suspicion, require particularized suspicion—that is, the officer must have some articulable basis to believe that the individual to be searched or seized has committed or is committing a crime. In contrast, a regulatory search is justified if the state’s interest in ensuring that a class of regulated persons is obeying the law outweighs the intrusiveness of a program of searches or seizures of those persons.[1]

Thus, a regulatory stop requires neither a warrant nor probable cause. Defendant does not challenge the constitutionality of the Kansas ...


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