United States District Court, D. Kansas
MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.
On September 5, 2014, police arrested defendant Julio A. Morales after a search of the car he was driving revealed 1.1 pounds of suspected MDMA, $71, 020.00 in cash, and eight firearms, among other things. Mr. Morales filed this motion seeking to suppress (Doc. 15) all evidence discovered in his vehicle. The Court held a hearing on Mr. Morales' motion on March 16, 2015, after which both parties submitted supplemental briefs (Docs. 27, 28). After considering the arguments and evidence that the parties have presented, the Court denies Mr. Morales' motion.
The Court takes the following facts from the parties' briefs and the evidence presented at the March 16 hearing, including a video of the traffic stop and subsequent search taken by a dashboard camera ("dashcam") mounted in the arresting officer's patrol car.
On September 5, 2014, at around 6:28 p.m., Junction City Police Officer Nicholas Blake was driving in his marked police cruiser on Interstate 70 near mile marker 310 in Geary County, Kansas. Barney, Officer Blake's certified narcotics detection canine partner, accompanied him in the cruiser. Officer Blake was driving westbound in the left lane of the highway when he noticed a gray sedan heading the same direction in the right lane about 150 yards ahead of him. Two other vehicles trailed behind the gray sedan in the right lane. Later, Officer Blake learned that Mr. Morales was driving the gray sedan.
The westbound lanes of I-70 bend to the right near mile marker 309. As the highway curves, an exit lane abutting the right lane of traffic gradually forms, which leads to a highway rest stop. As Mr. Morales passed the curve, Officer Blake saw the tires on the right side of Mr. Morales' car cross first onto the fog line on the right side of the road and then, after the fog line gave way to the exit lane, onto the line marking the exit lane. Mr. Morales' vehicle never crossed completely over the fog line or exit lane line. Rather, the right two tires merely touched the lines once, for a short time. Officer Blake testified at the hearing that Mr. Morales drove on the lines for "about three seconds." Then, Mr. Morales corrected course and returned to the right lane of traffic without jerking or swerving.
Officer Blake believed that Mr. Morales' brief encounter with the line marker constituted a violation of K.S.A. § 8-1522. This statute requires a driver to stay "as nearly as practicable" within a single lane of traffic. Officer Blake testified that there were no adverse driving or weather conditions when he saw Mr. Morales' car that would cause him to drift onto the lane line. The sky was overcast, but visibility was good, the road was dry, and there were no high winds. He saw no obstructions in the road near Mr. Morales' vehicle.
Officer Blake accelerated and pulled alongside Mr. Morales' car to determine how many occupants were in the vehicle and to see whether they were wearing seatbelts. Mr. Morales, the lone occupant of the car, was wearing his seatbelt. Officer Blake then dropped back behind Mr. Morales' car in the right lane and activated his emergency lights. Mr. Morales pulled his vehicle onto the side of the highway near mile marker 308. Half of his car was on the shoulder of the road, while the other half was on a grass embankment that sloped away from the road. The government concedes that the single, brief instance when Officer Blake saw Mr. Morales touch the line marker was the only incident it relies on to justify the traffic stop.
Officer Blake exited his vehicle and approached Mr. Morales' car. After some discussion, Officer Blake asked Mr. Morales to come back to his patrol car so he could run checks on Mr. Morales' license and prepare a warning citation. While in the vehicle, Officer Blake talked with Mr. Morales and became suspicious that he was involved in criminal activity. He ordered Mr. Morales to stay in the police cruiser while he took Barney, his canine partner, to conduct a drug sniff of Mr. Morales' car.
Officer Blake walked a leashed Barney around Mr. Morales' car in a counter-clockwise direction, starting with the front driver-side corner of the vehicle. As he moved, Officer Blake pointed at the car to indicate where he wanted Barney to sniff. When they passed the driver-side doors, Barney jumped up twice, but they continued around the trunk and along the passenger side of the car. Officer Blake begins to disappear from view of the dashcam as he leads Barney along the passenger side of the car; the ground dips to the right on the side of the highway where Mr. Morales parked his vehicle, and the car partially obscures both Officer Blake and Barney. When Barney reached the seam between the front and rear passenger-side doors, he paused briefly and then sat on the ground. Sitting down is Barney's normal "indication" to Officer Blake that he has identified drug odors in the vehicle. When Barney sat down, Officer Blake almost simultaneously stooped, at least slightly, so that he disappears completely from the view of the camera. He then stood up and jogged Barney back to the police cruiser, telling Barney "good boy" at least twice as he does so. The entire search lasted about 20 seconds.
Officer Blake returned to the patrol car and called for backup. When backup arrived, the officers searched Mr. Morales' vehicle. In the trunk of the car, they discovered: a black container containing suspected cocaine and marijuana wax; a vacuum-sealed pouch containing $71, 020.00 in cash; eight firearms; a large suitcase containing two large empty duffel bags and two rolls of food saver bags; and a bag containing approximately 1.1 pounds of suspected MDMA inside three vacuum-sealed bags. The officers then arrested Mr. Morales.
Mr. Morales argues that the Court should suppress evidence discovered in his vehicle for three reasons: (1) Officer Blake lacked any justification for stopping Mr. Morales' car;
(2) Barney's sniff search did not provide probable cause to search the car; and (3) Barney's alert and indication to the smell of drugs on the passenger side of the car did not provide probable cause the search the trunk. The Court addresses each argument in turn.
A. Was the traffic stop justified at ...