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United States v. Esquivel-Rios

United States District Court, District of Kansas

August 12, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTONIO ESQUIVEL-RIOS, Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

Defendant Antonio Esquivel-Rios was convicted by a jury on one count of possessing with the intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). By order of the Tenth Circuit Court of Appeals, these proceedings were remanded to this Court to reconsider whether the traffic stop of Defendant’s vehicle violated the Fourth Amendment. Defendant renewed his Motion to Suppress to include all post-arrest statements (Doc. 152). The Court conducted an evidentiary hearing on March 6, 2014, and the parties submitted supplemental briefing (Docs. 146, 146, 159, 162). The Court has carefully considered the evidence presented as well as the argument and submissions of counsel. For the reasons explained in detail below, the Court denies Defendant’s Motion to Suppress.

I. Procedural and Factual History

The facts and procedural history of this case are undisputed and the Court assumes the reader is familiar with the Tenth Circuit opinion that precipitates the matters before the Court, United States v. Esquivel-Rios.[1] The Court will not restate the pretrial facts in detail, but will provide excerpts from the opinion as needed to frame its discussion on remand.

On March 10, 2011, Defendant was indicted on one count of possession with the intent to distribute approximately 1.25 pounds of a mixture containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1). This charge stemmed from a search of Defendant’s vehicle during a car stop on Interstate 70 in Kansas, on May 11, 2010, when Kansas Highway Patrol Trooper Andrew Dean stopped his vehicle and found 448 grams of methamphetamine hidden in the dash during a subsequent search. Defendant moved to suppress this evidence, claiming that Trooper Dean stopped his vehicle in violation of the Fourth Amendment. After conducting an evidentiary hearing, this Court denied Defendant’s motion, finding the stop was justified at its inception because Defendant’s vehicle was bearing a Colorado temporary tag that a Kansas Highway Patrol dispatcher reported was not on record and not returning. A jury convicted Defendant on the charged offense. On May 15, 2012, this Court sentenced Defendant to serve 188 months’ custody.

Defendant directly appealed this Court’s denial of his Motion to Suppress to the Tenth Circuit Court of Appeals, claiming the traffic stop was unlawful in the first instance because Trooper Dean did not have reasonable suspicion to stop his vehicle.[2] The Circuit devoted much discussion to a “garbage in, garbage out” analysis with respect to the computer database, focusing on the “no return” response from the queried database and the dispatcher’s comment prior to the stop that “Colorado temp tags usually don’t return.”[3] The court found this “piece of evidence . . . suggest[ed ]that the database on which the officer relied to justify his stop might bear a real problem—a problem that might mean a ‘no return’ doesn’t suggest criminal conduct but only some bureaucratic snafu.”[4] The court noted that it had reserved judgment on this issue in United States v. Cortez-Galaviz, [5] where the court found that an indication of insurance information “not found” was sufficient grounds to stop an individual later found to be engaged in illegal conduct.[6] As the court explained, “[t]he defendant in that case asserted the database there was unreliable but produced no evidence suggesting so much.”[7] In rejecting defendant’s motion to suppress, the Cortez-Galaviz court placed the onus of establishing the database in question is unreliable on the defendant.[8] Turning to the facts in this case, the court found that it knew nothing about the database on which this case hinges, and further, that this Court “failed to engage with evidence seeming to call the database into question.”[9] Accordingly, the court directed this Court “to reconsider, informed now by a full appreciation for all the circumstances surrounding the ‘no return’ report and their consequences for the database’s reliability, ” whether Trooper Dean’s traffic stop of Defendant’s minivan violated the Fourth Amendment.[10]

The Circuit also directed that if this Court on remand finds reasonable suspicion absent and the Fourth Amendment violated, it should proceed to the question whether exclusion is an appropriate remedy:

If, at the end of the day, the district court on remand finds reasonable suspicion absent and the Fourth Amendment violated, it should proceed to the question (raised by the government below but also as yet unaddressed by the district court) whether exclusion is an appropriate remedy, following the mode of analysis dictated by the Supreme Court in Davis v. United States, 131 S.Ct. 2419 (2011) and Herring v. United States, 555 U.S. 135 (2009). Even if the district court on remand doesn’t find a Fourth Amendment violation, we believe it would still be prudent for that court to consider the remedial question. Doing so in this and other similarly close cases can help avoid the potential need for (further) remands.[11]

Evidence at Post-Remand Hearing

Sydney Profancik, a Customer Service Coordinator II with the Colorado Bureau of Investigation (“CBI”) testified that the CBI is responsible for maintaining the interface between the National Crime Information Center (“NCIC”) and the Colorado Crime Information Center (“CCIC”), making Colorado criminal justice records available to all federal and state law enforcement agencies through request queries to the CCIC.[12] In 2012, the CBI and the CDMV loaded the CCIC database with temporary tags issued in December 2011 or later.[13] Profancik stated that prior to 2012, Colorado temporary tags were not entered into the CBI’s computer system, even though they were in the CDOR system.[14] She explained that in 2010, a Kansas dispatcher would not have had access to the CDOR’s records by the ususal computer system; rather, in order to access the CDOR’s system, a Kansas dispatcher “would have to have been either through a phone call or through an administrative message to the Department of Revenue.”[15] She stated that in 2010, no database existed that could provide law enforcement agencies with responses to queries on Colorado vehicles.[16] She testified that when accessing the CBI’s system in 2010, there were no warnings that would have alerted a Kansas dispatcher that the CDOR records regarding temporary tags were not in the CBI or NCIC system; instead, “[i]t would just state that there was no record.”[17] The CCIC system would not have responded to a temporary tag query with the message “no return.”[18] Profancik clarified that in 2010, a dispatcher’s query about a temporary tag in the CBI system, which she sometimes referred to as CCIC, was not a reliable source for information about temporary tags in Colorado, which was “common knowledge” with Colorado law enforcement.[19]

James Kautz, a criminal investigator for the Colorado Division of Motor Vehicles (“CDMV”), testified that Defendant’s temporary tag was purchased at a CDMV office in Adams County, Colorado, on May 10, 2010.[20] The tag number was 645363H.[21] The Colorado Department of Revenue (“CDOR”) uploaded the information about the temporary tag to its database on May 13, 2010.[22] Accordingly, Kautz explained that a computer query of the CDOR’s database would not have turned up this particular temporary tag until May 13.[23] Kautz verified that there was a time period before 2012 when the CDOR information about temporary tags was not loaded into the CBI computer system, and that the uploading of temporary tag information was completed in July 2012.[24] Kautz testified that in 2010, a dispatcher would have to call someone at the CDOR to ask about temporary tag information, and the information conveyed to officers by a dispatcher who ran a computer search would have been “no record available, ” or “not on file.”[25] He clarified that while he could not recall the exact wording, a query of temporary tags prior to 2012 would result in a reply, but there would be no information.[26] While there was no written warnings or formal training on the situation, the response to a temporary tag query was something an officer in Colorado learned on the job.[27]Kautz testified that a search for temporary tags prior to 2012 was “futile” and not reliable.[28]

Both the CBI and CDOR also submitted written responses to questions submitted by the Government, which were admitted as evidence at the hearing on remand. The CBI response stated, “[u]ntil July 2012, Colorado temporary license plates were not available in the database used to respond to law enforcement license plate inquiries. Due to the lack of availability of the records prior to July 2012, all temporary tag queries would elicit a ‘not on file’ response.”[29] The CDOR response stated, “This information [on temporary tags] is not retrieved through the Colorado Department of Revenue, but through a database maintained through the Colorado Bureau of Investigations.”[30]

On May 11, 2010, at approximately 6:50 a.m., Trooper Dean was patrolling eastbound Interstate 70 Highway in Wabaunsee County, Kansas, about twenty-five miles west of Topeka.[31]While on patrol, he observed Defendant’s vehicle bearing the Colorado temporary tag.[32] He ran the temporary tag through the Kansas Highway Patrol’s dispatch.[33] Dispatcher Derek Lathan handled the request.[34]

Lathan ran the request through various law enforcement agencies, as evidenced by Defendant’s Exhibit 516, which Lathan described as “our return from when we run the tag.”[35]According to Lathan, the return “shows that we checked the Colorado license, it checked Kansas registry offender files, Kansas’ BOLO, and Kansas wanted files all with that tag number.”[36] He explained, “[i]t checks several things at once when we run a tag number.”[37]

The return showed that all inquiries regarding the tag number and the VIN of the vehicle came back negative.[38] There are five search results on the return. A cross-check of the tag number with “Kansas Wanted Person” came back as “no match.”[39] A cross-check of the tag number with “Kansas BOLO” came back as “no match.”[40] A cross-check of the tag number with “Kansas Registered Offender” came back as “query by lic is not supported.”[41] A cross-check with NCIC came back as “no record lic/645363H lis/co.”[42] Lathan described that entry as “an NCIC return showing there’s no wants or warrants associated with that vehicle, which is nationally.”[43] None of these reports were from Colorado.

Lathan received two responses from Colorado. A cross-check of the tag number with “NLETS” came back as “not on file, ” based on a “response from DMV, ” presumably an acronym for “Department of Motor Vehicles.”[44] Lathan testified that he did not know what the acronym NLETS stood for, but that it queried NCIC and was run through the Colorado system.[45]He further testified that he was not sure which Colorado agency was designated to interface with NCIC, but thought it was either the Colorado DMV, the Colorado State Patrol, or the CBI.[46] A later cross-check of the vehicle’s identification number with NLETS came back ...


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