United States District Court, D. Kansas
MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.
Defendant has filed a motion to suppress. It asks the Court to suppress evidence of contraband found in defendant's car (some 15 pounds of heroin, the government says) and "all statements made by defendant in connection with the search and seizure of defendant and his car." Doc 14 at 1. In summary form, defendant's motion asserts that: (I) a Kansas Highway Patrol ("KHP") Trooper acted unreasonably when he "inferred" that defendant had committed a traffic violation and stopped defendant's car as a consequence; (II) the KHP Trooper lacked reasonable basis to suspect that "criminal activity was afoot, " so he lacked justification to detain defendant; (III) the Trooper's warrantless search of defendant's car violated his Fourth Amendment rights; (IV) defendant's consent to a search of his car (which he admits giving) was invalid and, even if valid, the Trooper's search exceeded the scope of any consent; and (V) the contraband discovered by the KHP and defendant's subsequent statements are unconstitutional fruits of a poisonous tree, and the Court, therefore, should suppress them. Id. at 5, 8, 13, 17, and 26.
The Court conducted an evidentiary hearing on defendant's motion on December 15, 2014. During it, the KHP Trooper who made the traffic stop, Christopher Nicholas, testified. In addition, the government called KHP Trooper Mitch Clark. Trooper Clark is a member of the KHP assigned as a Task Force Officer to the Drug Enforcement Administration. Trooper Clark testified that he read defendant's Miranda rights to him, defendant waived those rights, and thereafter he participated voluntarily in an interview with Trooper Clark. Defendant testified briefly. He also recalled Trooper Nicholas, and he asked the Court to watch a 28-minute video taken from a camera mounted inside Trooper Nicholas' patrol car. This video showed Trooper Nicholas' pursuit of defendant's car and the subsequent interactions between the Trooper and defendant. It contains no audio, however. At counsel's request, the Court watched this video in its entirety before the hearing on December 15, 2014, and based on the parties' arguments at the hearing, the Court has reviewed parts of this video again since the hearing. Finally, the parties introduced six exhibits and the Court reviewed each exhibit before reaching the conclusions presented in this Memorandum and Order.
After observing the witnesses, hearing their testimony, and reviewing the documentary and video evidence, the Court: (I) concludes that Trooper Nicholas had reasonable suspicion to believe that defendant had committed a traffic violation; (II) finds that Trooper Nicholas' detention of defendant was narrowly tailored to the reason for that detention; (III) finds that defendant consented to Trooper Nicholas' search of his car and thus obviated the need for probable cause or a warrant authorizing the search; (IV) finds the defendant's consent to the search was validly given and the KHP restricted its search to the scope of consent given; and (V) consequently, concludes neither the contraband allegedly discovered in defendant's car nor his subsequent statements to law enforcement officials is derived from unconstitutional conduct. As noted below, there is one aspect of defendant's purported statements to law Trooper Clark that the Court cannot assess based on the current record. Thus, this ruling does not decide whether this aspect of defendant's purported statements is admissive. See Part IV, below.
Below, the Court recites its findings of fact and then applies the governing law to them.
On June 25, 2014, a little after 6:00 in the morning, KHP Trooper Nicholas was driving his patrol car westbound on Interstate 70 in Geary County, Kansas. He saw a blue, four-door sedan driving the opposite direction on I-70. The sedan occupied the left lane of the two eastbound lanes. Trooper Nicholas saw the car remain in the left lane for about three-fourths of a mile, even though there were no other cars in its vicinity and no other lawful reason warranted it remaining in the left lane. Believing this violated Kansas' traffic laws, the Trooper turned his patrol car around and began pursuing the sedan in the eastbound lanes of the highway.
A short, one-lane construction zone (one-half to three-quarters of a mile long) slowed the Trooper's pursuit of the blue sedan. After passing through the construction zone, Trooper Nicholas passed another vehicle which had separated him from the blue sedan while the three cars were in the construction zone. Although the Trooper could not see the blue sedan for the entire time he pursued it, the sedan occupied the left lane during the time it was within his sight. The pursuit covered the next mile and one-half or so following the construction zone. As before, there were no other cars in the area or obstacles in the right lane to explain the car's presence in the left lane. In short, Trooper Nicholas had seen the blue sedan operating in the left lane both before the construction zone began and after it had ended (when drivers again could choose between two lanes).
After Trooper Nicholas caught the blue sedan, it moved over to the right lane. The Trooper pulled alongside the car momentarily for officer safety reasons, slowed down to move behind it again, and then engaged his patrol car's emergency lights. The two cars stopped on the shoulder of the interstate highway and, for safety reasons, Trooper Nicholas approached the blue sedan on the passenger side of the car. The sedan's driver-the car's only occupant-lowered the passenger's window and Trooper Nicholas explained why he had stopped the car: Kansas law forbids a driver from occupying the left lane of a divided highway unless he is overtaking another car or other circumstances (as specified by the relevant traffic statute) warrant. The sedan's driver responded, saying he did not know he was violating the law. He also reported that he had felt safer in the left lane because the right-hand lane was bumpy. The Trooper asked the sedan's driver for his license and proof of insurance, and advised him that he would not issue a citation for the left lane traffic violation.
During this interaction, Trooper Nicholas noticed an irregularity along the edge of the molding on the car's front windshield. It was, in the officer's words, "pulled up." To the Trooper, who had attended and completed an auto body repair school at Dodge City (Kansas) Community College and worked 10 years in the auto body repair industry before joining the KHP, this suggested a recent replacement of the sedan's windshield. The Trooper also testified that during his tenure with the KHP, he previously had encountered cars with voids, i.e., secret compartments, added to them in the area beneath the windshield and near the cowl (where the windshield meets the dash). From experience, Trooper Nicholas knew that one could add such a compartment by removing the car's windshield, cutting an access hole near the place where the windshield meets the car's body, installing an access door to the compartment, and then installing a new windshield. The Trooper also noticed that the sedan's windshield appeared to be brand new. Before the traffic stop at issue here, Trooper Nicholas had apprehended two other cars containing such secret compartments. He also had assisted "two or three" other officers in efforts to identify whether cars contained such compartments.
Trooper Nicholas testified that during the initial detention following the traffic stop, he engaged the sedan's driver in a conversation about his travel plans. The driver's voice trembled when he spoke and his explanation of his travel plans struck the Trooper as counterintuitive, i.e., I-70 did not represent the most direct route for the city pair disclosed by the driver's professed travel plans. In addition, the driver said he was driving from Southern California to Kansas City (and back) to see a sister. The driver said that he had not seen the sister in five years but nonetheless, he planned to spend just two days in Kansas City.
The paperwork provided to Trooper Nicholas identified the driver of the sedan as the defendant in this action, Juan Carlos Ahumada. Mr. Ahumada's credentials showed he held a California driver's license. Trooper Nicholas noted that Mr. Ahumada's hands shook visibly when he handed his paperwork to the officer. Trooper Nicholas returned to his car, checked Mr. Ahumada's license status with his dispatcher, and wrote a warning notice for the left lane violation he had seen Mr. Ahumada commit.
Based on his observations so far, and the incongruities described above, Trooper Nicholas decided to try to engage Mr. Ahumada in a consensual encounter after he had concluded the initial traffic stop. While the Trooper did not identify the precise moment when he made this decision, he said he based his decision on the totality of circumstances he had seen and heard during the traffic stop, i.e., all the circumstances described above, plus: Mr. Ahumada had owned the blue sedan for a short time; he was driving alone along a known and high volume drug trafficking route (though the Trooper conceded I-70 was not as high a volume trafficking route as others that Mr. Ahumada might have taken); Mr. Ahumada's trip facts were inconsistent with normal traffic patterns the Trooper encounters along I-70; and Mr. Ahumada's exhibited an extremely nervous demeanor, even after the Trooper advised that he planned to issue just a warning for his traffic violation.
After Trooper Nicholas had completed his work in his patrol car, he approached the passenger's side window of Mr. Ahumada's car for a second time. He handed the defendant his license and insurance information, and again he noticed that Mr. Ahumada's hands trembled badly. The Trooper's Affidavit, prepared two days after the traffic stop, reports that Trooper Nicholas told Mr. Ahumada "to make sure he drove in the right hand lane [and he] told him to have a safe trip." Doc. 15 at 31. At the hearing, Trooper Nicholas was slightly more equivocal. He testified that he tells the driver "on every traffic stop" that he is free to go after he returns their paperwork, so he "guesses" he said this to Mr. Ahumada. "Something to that effect, " the Trooper said. "Have a safe trip. You're free to leave; something to that effect." The Trooper also testified that he usually takes a step or two away from the car window before returning and attempting to engage the driver in a consensual conversation.
The video of this traffic stop shows that Trooper Nicholas followed this practice during his interactions with Mr. Ahumada. It shows Trooper Nicholas take two steps away from the passenger window of Mr. Ahumada's car, back in the direction of the Trooper's patrol car. The video then shows Trooper Nicholas change directions and return to the passenger-side window of Mr. Ahumada's car where, the video also shows, he reengaged the defendant in conversation. Trooper Nicholas was forthcoming about the reasons for his feint back toward the patrol car: It is designed to mark the end of the original traffic stop and begin a new and separate consensual session with the driver.
After reengaging Mr. Ahumada through the passenger-side window, the Trooper testified that he asked Mr. Ahumada whether he could ask him an additional question. Mr. Ahumada responded, "Yes." When the Trooper asked this question, no other law enforcement officers were present, Trooper Nicholas did not have his hand on his weapon, he was not using his "command voice, " and he did nothing to suggest that Mr. Ahumada must remain there and talk with him. But Trooper Nicholas concedes he did not tell Mr. Ahumada that he had the right to refuse the Trooper's request to ask another question or, later, his request to search his car. Among other questions he asked during this second stage of his interaction with Mr. Ahumada, the Trooper asked whether there was anything illegal in the car. Mr. Ahumada replied that there was not. The Trooper also asked Mr. Ahumada if he could search the car. Both Trooper Nicholas and Mr. Ahumada agree: Mr. Ahumada consented to the Trooper searching his car. As a safety precaution, the Trooper asked Mr. Ahumada to turn off the car and hand him the keys. He did so. Mr. Ahumada then stepped out of the car, the Trooper checked Mr. Ahumada for weapons, and then asked him to go stand in front of his sedan.
Trooper Nicholas then began inspecting the car more closely. He focused his inspection on the area around the anomaly he had noticed near the front windshield. He eventually opened the sedan's hood and examined the area near the cowl and the car's windshield wipers. While examining the windshield area more closely, Trooper Nicholas noticed that the molding on the driver's side of the windshield was loose. Also, it appeared someone had attempted to glue it down with urethane. This did not conform to best practices in the auto body repair industry, the Trooper testified. He said that most auto repair shops would not "let a windshield go [out] with the corners rolled up" like the ones he saw on Mr. Ahumada's windshield. The Trooper also noticed signs suggesting that the windshield was installed recently. For example, the dashboard area near the bottom of the windshield was unusually clean and lacked the customary accumulation of lint and dirt the Trooper would expect to see if the windshield had not been replaced recently. Mr. Ahumada told the Trooper he had purchased the car about four months earlier and he had not had the windshield replaced since he owned it.
The Trooper also noticed tool marks on several nuts near the cowl/firewall area and he saw new, after-factory paint on the plastic pieces around the cowl screws. He asked Mr. Ahumada several times if he had done any work on the car, and he consistently replied that he had not. Finally, the Trooper noticed that Mr. Ahumada faced away from the car while the Trooper closely examined this area of the car. This was unusual, the Trooper said, because most drivers will watch their car closely while a Trooper inspects it.
At this point, the Trooper concluded that probable cause existed to believe that the car contained a secret compartment near the cowl/firewall area. Because Trooper Nicholas was still working by himself, he placed Mr. Ahumada in handcuffs for safety's sake. About five minutes after he applied the handcuffs to defendant, a second officer arrived at the scene. Trooper Nicholas testified that Mr. Ahumada never withdrew his consent to the Trooper's search, never asked him to stop the search, and never complained that the search was exceeding the scope of his consent. When he testified, Mr. Ahumada did not assert that he had ever objected to the Trooper's search.
Based on his observations, Trooper Nicholas retrieved an electric drill he carries in his patrol car and used it to drill a small hole (one-quarter inch in diameter) in the area where he had come to believe a secret compartment existed. The Trooper explained that he drilled this hole to determine if, in fact, the car contained a secret compartment there. This hole, the Trooper testified, did not threaten the sedan's structural integrity or subtract from its operational capacity or market value. The Trooper also testified that auto repair workers commonly drill similar holes when making repairs so they can insert tools in tight spots. The Trooper concedes that he did not ask Mr. Ahumada, specifically, whether he consented to the Trooper drilling the small hole.
Once he had drilled the hole, Trooper Nicholas inserted a fiber optic scope through it and looked beneath the surface he had drilled. The scope enabled Trooper Nicholas to see several packages wrapped in cellophane. From this, the Trooper concluded that the packages inside the compartment likely included drugs. He placed Mr. Ahumada under arrest and, defendant concedes, read him his Miranda rights. Mr. Ahumada orally confirmed that he understood his rights. The Trooper then placed Mr. Ahumada in his patrol car but did not ask him to waive his rights.
The KHP arranged to tow Mr. Ahumada's car to KHP Headquarters near Topeka, Kansas. The KHP summoned Safelite, an automotive glass vendor, and its employee removed the blue sedan's windshield. This enabled Trooper Nicholas to remove the cellophane-wrapped packages he had seen through his optical scope. He conducted a field test on a sample taken from one of the packages. It tested positive for heroin. In addition, the Trooper's report states that the nine packages the Trooper removed from Mr. Ahumada's car weighed 15 pounds, two ounces (including the weight of packaging).
About two hours after Mr. Ahumada's arrest, he met with KHP Trooper Mitch Clark. Trooper Clark was working under an assignment to a Task Force operated by the federal Drug Enforcement Administration. In this role, Trooper Clark assisted KHP officers and others in drug interdiction efforts. Trooper Clark testified he read Mr. Ahumada all of his Miranda rights from a prepared form. Mr. Ahumada told Trooper Clark that he understood his rights, wanted to waive them, and was willing to talk with him. Trooper Clark also testified that KHP "customarily" secured a signed statement showing the interviewee had waived his Miranda rights, but he could not remember whether Mr. Ahumada actually signed a waiver form. Trooper Clark also testified that the KHP video-taped the session where the KHP asked Mr. Ahumada questions. Neither party provided the Court with the form that Trooper Clark used to read Mr. Ahumada his Miranda rights, any waiver form Mr. Ahumada may have signed, or the video of Trooper Clark questioning the defendant. But Trooper Clark testified, without objection, that he had watched this video recently and it captured Mr. Ahumada's pre-interview waiver of his rights. Finally, Trooper Clark testified that Mr. Ahumada never told him that he did not wish to speak with him any longer or that he wished to speak with an attorney.
In the interview that followed, Mr. Ahumada told Trooper Clark that a man had approached him and asked whether he was "working." Mr. Ahumada said he understood the man's question to inquire whether he was transporting drugs. Mr. Ahumada refused this entreaty, but later, when he had gone without work for a time, the same person approached him again. This time, Mr. Ahumada told Trooper Clark, he accepted the employment proposal. He told Trooper Clark that he had expected a payment of $1, 000 for the trip that led to his address. Mr. Ahumada also said he did not know his final destination when Trooper Nicholas stopped him on I-70. Instead, he said he was instructed to drive to Kansas City and wait for a phone call with additional instructions. Trooper Clark testified that Mr. Ahumada said he did not place the contraband in the sedan's secret compartment. Instead, the person who had approached him about transporting drugs had taken his car from him for about three weeks' time and then returned it. Thereafter, he left on the trip that led him to Kansas and his encounter with Trooper Nicholas. Mr. Ahumada said he was supposed to deliver the car and fly back to California. Finally, Mr. Ahumada told Trooper Clark that this trip was his first time transporting drugs.
Mr. Ahumada also participated in a second interview with Trooper Clark. He told Trooper Clark that he didn't wish to cooperate with police authorities and he would just go to jail. Trooper Clark later engaged Mr. Ahumada in conversation a third time. While defendant's motion seeks to suppress any statements he may have made during this third stage of his interactions with Trooper Clark, the current record does not permit the Court to decide this aspect of his motion.
The following five sections address the five principal attacks Mr. Ahumada makes in his motion. They address defendant's arguments in the same order he ...