United States District Court, D. Kansas
MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.
The three defendants in this case have filed motions asking the Court to suppress evidence-six kilograms of a cocaine mixture-that police recovered after an officer stopped and searched a vehicle occupied by defendants. Defendants assert that the traffic stop and vehicle search violated their rights under the Fourth Amendment to the Constitution, and, as a result, the Court must suppress the cocaine discovered during the vehicle search. Defendant Jamal Williams filed the principal Motion to Suppress Evidence (Doc. 28, amended by Doc. 31). Defendants Anthony Williams and Zebedee Williams filed Motions to Join Jamal Williams' motion (Docs. 27, 29), which also assert additional arguments in support of suppressing the evidence. The government filed a response brief (Doc. 34), and Zebedee and Jamal Williams each filed a reply (Docs. 37, 38). The Court conducted a hearing on defendants' motions on January 12 and January 15, 2015. After carefully considering the arguments and evidence the parties have presented, the Court denies defendants' motions for the reasons set forth below.
Defendants' motions arise from facts that occurred during an approximately 45-minute period following a traffic stop conducted by Trooper David Stahl of the Kansas Highway Patrol on an I-70 exit ramp in Wabaunsee County, Kansas. A dashboard camera ("dashcam") mounted in Trooper Stahl's patrol car captured most of the relevant events. The dashcam also has an audio recording component, which was attached to Trooper Stahl's belt. The dashcam recording establishes most of the facts described below, but where the video is unclear or incomplete, the Court has supplemented the facts with testimony Trooper Stahl, Zebedee Williams, and Anthony Williams provided at the suppression hearing. The Court has also relied on some of the information contained in Trooper Stahl's police report.
At around 10:43 p.m. on July 23, 2014, Trooper Stahl had positioned himself facing northbound on Tallgrass Road, just off I-70 exit 322 (the "Tallgrass Exit"). From his position, Trooper Stahl could view eastbound I-70 traffic exiting onto Tallgrass Road. Earlier that day, Trooper Stahl had placed two "ruse" drug checkpoint signs, which were visible to vehicles just before they reached the Tallgrass Exit as they traveled eastbound on I-70. The first sign read "Drug Checkpoint Ahead." The second sign warned travelers, "Drug Canine in Use" at the checkpoint. In reality, there was no drug checkpoint. The ruse checkpoint signs are a tactic used by Kansas Highway Patrol troopers to identify suspicious drivers. Troopers position themselves near the next exit ramp and watch for suspicious vehicles attempting to evade the pretend checkpoint. See United States v. Neff, 681 F.3d 1134, 1135, 1138-41 (10th Cir. 2012) (explaining police tactic of using "ruse" checkpoint signs and holding that a driver's exit from the interstate after seeing ruse check point signs is, by itself, insufficient justification for a vehicle stop). Trooper Stahl had positioned himself on Tallgrass Road so that he could observe drivers exiting the interstate after seeing the ruse checkpoint signs.
From his position facing northbound on Tallgrass Road, Trooper Stahl observed a white Chevrolet Silverado pickup truck exit the interstate and turn left (north) onto Tallgrass Road. The truck failed to complete a stop at the stop sign located at the intersection of the exit ramp and Tallgrass Road. Suspecting a traffic violation, Trooper Stahl began following the truck. After the truck turned left again, this time onto the I-70 west ramp heading in the opposite direction the truck traveled before it encountered the ruse checkpoint signs. Trooper Stahl activated his emergency lights, causing the truck to pull over to the side of the road.
Trooper Stahl then exited his patrol car, approached the passenger side of the vehicle, and advised the driver that he had stopped him because he failed to complete a stop at the stop sign. Trooper Stahl testified that, approaching the vehicle for the first time, he noticed the back-rear tire was a different size and style than the other three tires on the vehicle.
The occupants of the vehicle were the three defendants in this case. Jamal was the driver, Zebedee was sitting in the passenger's seat, and Anthony was sitting in the back seat of the truck's extended cab. Trooper Stahl requested licenses and the vehicle registration. In his police report and in his oral commentary captured by the dashcam, Trooper Stahl noted that, at this point, Jamal and Zebedee appeared to be extremely nervous. According to Trooper Stahl's report, Jamaal's hands shook, his body trembled, and he avoided eye contact with Trooper Stahl.  He observed similar nervous behavior from Zebedee, noting that Zebedee's hands and body Were trembling, he was sweating profusely, and his carotid artery was "visibly pulsing" in his neck. After some confusion, Zebedee and Jamal handed Trooper Stahl their driver's licenses and a copy of a rental agreement with Hertz Rent-a-Car ("Hertz").
During this initial conversation, Trooper Stahl also asked defendants about their travel plans, and they stated they were on their way to Pittsburgh, Pennsylvania. Trooper Stahl then asked where defendants were coming from. They did not appear to answer immediately. Trooper Stahl testified that when he repeated the question, defendants looked at each other hesitantly until Jamal replied they were coming from western Kansas, though none of the defendants seemed to know which town. Trooper Stahl then took the rental agreement and Jamal's driver's license back to his car.
Back in his patrol car, Trooper Stahl radioed his location, the vehicle registration information, and Jamal and Zebedee's driver's license information to the police dispatcher. The dispatcher advised that she could not identify a valid registration for the vehicle. While he waited for the dispatcher to process the remaining information, Trooper Stahl narrated some of his mental impressions about the situation into his audio recorder. He stated three times that defendants seemed very nervous. He mentioned that Jamal tried to hand him a Firestone service center receipt instead of the vehicle information, but mentioned that fact as evidence of Jamal's nervousness only. He did not mention anything about the Firestone receipt coming from a service center in Phoenix, Arizona just two days earlier. He also did not comment at this time about the irregularly sized wheel or the extra spare tire. Trooper Stahl did note, however, that the rental agreement showed an expiration date of July 20, 2014-three days earlier-but acknowledged that he "[did not] know if they got an extension or not." Trooper Stahl observed that the rental agreement identified "Dawn Mackey" as the individual who had rented the truck, contrary to Jamal's claim that he had rented it. Trooper Stahl also noted that he saw a bag in the bed of the truck.
Trooper Stahl proceeded to radio the dispatcher and ask if she could locate a nearby Wabaunsee County officer to come assist him. Trooper Stahl then began to comment about his impression of defendants' explanation for turning around at the Tallgrass Exit, but the dispatcher interrupted him. The dispatcher communicated that Zebedee's driver's license was valid, but that Jamal's licenses had expired. The dispatcher also informed Trooper Stahl that Jamal had a criminal history. She did so by listing a series of codes, and Trooper Stahl testified he understood them to mean that Jamal had a parole violation and a felony drug offense on his record. The dispatcher could not identify the specific drug violation, only that it was a violation of the "Cosmetic Act." The dispatcher did, however, identify Jamal as a "Signal One" which, Trooper Stahl testified, was a code signal for "armed and dangerous."
After receiving the information from the dispatcher, Trooper Stahl stated, "Ok, here goes nothing." He proceeded to describe his skepticism toward defendants' explanation for why they turned around. As told by Trooper Stahl, their explanation claimed they intended to switch drivers at a truck stop because Jamal was tired. But they had missed the exit for the truck stop, and, realizing this, they were turning around to drive back to it. Trooper Stahl stated that defendants' explanation did not "make any sense whatsoever" because they simply could have traded drivers at the exit without backtracking to the truck stop. Suspicious of defendants, Trooper Stahl stated he intended to reapproach the vehicle, terminate the traffic stop, but attempt to extend the stop by initiating a "consensual encounter."
Trooper Stahl again approached the vehicle and returned defendants' rental agreement and driver's licenses. He informed them he was just going to issue Jamal a warning and asked him to make sure he "gets stopped" next time. Defendants thanked him. Without stepping away from the truck or otherwise breaking engagement with defendants, Trooper Stahl asked another question: "Your rental agreement showed [the truck] due back on [July] 20th, you called and got it extended?" Defendants responded that they had, in fact, called Hertz and extended the rental agreement. Zebedee then asked Trooper Stahl if they could switch drivers before they got back on the road. Trooper Stahl responded that it would be acceptable, even advisable, to switch drivers now because Jamal did not have a valid driver's license. Again, without breaking contact with the truck, Trooper Stahl initiated a new line of questioning:
Trooper Stahl: But let me explain something to you, ok? You guys saw the [drug checkpoint] signs back there when you came through? [To Anthony] Sir, do you mind just keeping your hands where I can see them? I don't know you guys...
Anthony: Ok, [inaudible]... I'm sorry.
Trooper Stahl: It's no problem, I just don't know you, ok. You saw the signs when you came through, right?
Jamal: Absolutely [inaudible]...
Trooper Stahl: That's what I do, I deal with large amounts of illegal narcotics, weapons, [inaudible], terroristic stuff, things like that. You guys don't have anything like that in your vehicle?
Jamal or Zebedee: No, sir.
Trooper Stahl: Do you have a problem if a take a quick look in the back of the vehicle?
Jamal or Zebedee: [inaudible]
Trooper Stahl: Is that alright?
Jamal or Zebedee: [inaudible]
The audio from Trooper Stahl's recording device does not reveal clearly whether defendants consented to Trooper Stahl's request to search the truck, and Anthony also testified that he did not definitely hear Jamaal or Zebedee consent to the search. Nevertheless, the Court credits Trooper Stahl's testimony that defendants consented to the search because it is consistent with other video and audio evidence. The audible part of the conversation proceeds as if defendants answered "yes" to Trooper Stahl's request, and the video shows defendants ...