United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
November 14, 2016, Lieutenant Justin Stopper of the Geary
County Sheriff's Department stopped a grey Ford Fusion on
Interstate 70 for following the car in front of it too
closely, and because an item or items in the windshield
appeared to block the driver's view. Defendant Alvin
Acevedo was driving this Ford Fusion, and defendant Yesenea
Collazo was sleeping in the backseat. After Mr. Acevedo
pulled onto the shoulder and parked, Lieutenant Stopper
approached the Fusion from the passenger side and interacted
with the driver. Some six minutes later, Lieutenant Stopper
called for a K-9 Unit to the scene. The drug dog alerted to
the car. Later, officers would find more than 18 pounds of
heroin hidden in a compartment under the Fusion's front
December 14, 2016, Mr. Acevedo and Ms. Collazo were indicted
on one count of possession with intent to distribute a
controlled substance under 21 U.S.C. § 841(a) and 18
U.S.C. § 2. Doc. 1. On June 19, 2017, Mr. Acevedo and
Ms. Collazo filed separate Motions to Suppress, asking the
court to exclude evidence of the heroin found during the
traffic stop. Docs. 18, 19. The court held an evidentiary
hearing on July 10, 2017. The court has considered the
parties' briefing and evidence, and now is prepared to
rule. It denies Mr. Acevedo and Ms. Collazo's Motions to
afternoon of November 14, 2016, Lieutenant Justin Stopper of
the Geary County Sheriff's Department was in his patrol
car, sitting in the median of Interstate 70 near mile-marker
303 in Geary County, Kansas. At around 2:30 p.m., he noticed
a grey Ford Fusion driving eastbound on the highway. He
believed this Fusion was following the car in front of it, a
maroon Prius, too closely to comply with Kansas law. Lt.
Stopper testified that he visually marked a line on the road,
watched the Prius pass that line, then counted how many
seconds it took for the Fusion to pass the same line. Based
on this method, he determined that the Fusion was following
about one second behind the Prius. The video taken from his
patrol car's front-facing camera contains a timer. While
this timer is not calibrated to tenths of a second in the
fashion used at present day sporting events, it shows that
about one second elapsed between the Prius crossing the line
chosen by Lt. Stopper and the Fusion crossing it. Exs. 1, 2,
3 (front-facing camera at:53). As the Fusion passed his
patrol car, Lt. Stopper also noticed a “whole lot of
stuff” in the Fusion's windshield. Ex. 1
(front-facing camera at about minute 3:56). He believed that
this “stuff” illegally obstructed the
driver's view. So, Lt. Stopper turned on his emergency
lights and sirens, pursued the Fusion, and turned on his
patrol car's front-facing camera.
Lt. Stopper turned on his front-facing camera, it
automatically re-wound one minute and began recording. As
this recording shows, the Fusion, driven by Mr. Acevedo,
pulled to the shoulder of the road. Lt. Stopper then radioed
the Fusion's New York license plate number to his
dispatcher, got out of his patrol car, and approached the
Fusion from the passenger's side. Id.
(front-facing camera, showing the Fusion and Lt. Stopper
pulling to the shoulder at about the 2:21 mark). As he
approached the Fusion, Lt. Stopper noticed another person in
the car for the first time. The person was in the backseat. A
few moments after Lt. Stopper reached the Fusion, the second
person sat up suddenly, and it appeared she just had
awakened. As this passenger sat up, Lt. Stopper was
explaining why he had pulled Mr. Acevedo over. Lt. Stopper
then asked Mr. Acevedo for his driver's license. After
handing Lt. Stopper his license, Mr. Acevedo asked a question
about the positioning of his GPS system, which was one of the
items Lt. Stopper had observed on the Fusion's
windshield. Lt. Stopper answered Mr. Acevedo's question,
then asked to see his proof of insurance.
Acevedo promptly handed Lt. Stopper his proof of insurance.
During the July 10 hearing, Lt. Stopper testified that, while
Mr. Acevedo handed him the proof of insurance documents, he
also observed the car's registration paperwork. Though it
is not clear when Mr. Acevedo actually handed his
registration paperwork to Lt. Stopper, Lt. Stopper
testified-after reviewing his report to refresh his
memory-that he observed the date on the registration as Mr.
Acevedo handed him the proof of insurance documents. Lt.
Stopper noted that the car was registered on November 8,
2016-just six days before the stop.
this initial interaction, Lt. Stopper observed several things
that piqued his suspicion. First, he noticed an overwhelming
smell of air freshener coming from the Fusion as he spoke to
Mr. Acevedo. Lt. Stopper also saw three black ice air
fresheners-two hanging on the rear-view mirror and one lying
on top of the deck above the back seats. He noticed that all
three air fresheners appeared new. None were sun-faded.
Second, Mr. Acevedo's proof of insurance on the car
showed that the policy period began November 8, 2016, and
ended just two months later. Lt. Stopper found this
conspicuously unusual because, in his experience, most
motorists carry car insurance with policy-periods lasting six
months to one year. Third, Lt.
noticed that the key in the ignition was not on a key chain
and that it was the only key on the key ring. And finally,
Lt. Stopper saw three cell phones in the car.
Stopper found all of these things suspicious. From his more
than 300 hours of drug-interdiction training and 10
years' experience as a full-time officer,  he knew that drug
traffickers often place strong-smelling air fresheners in
their vehicles hoping to prevent drug dogs from locating
drugs hidden in the vehicle. And he knew that drug
traffickers often carry multiple cell phones-one for personal
use and one for drug-trafficking purposes. Lt. Stopper also
testified that drug traffickers often use “drop
cars”-that is, vehicles that traffickers conceal drugs
in and leave in a parking lot for the next person to pick up.
He explained that drop cars usually have been registered in
the driver's name only recently and that traffickers
often do not carry the car's key on a key chain with
personal items. Lt. Stopper also testified that it is common
for drug traffickers to purchase short-term insurance for
this initial interaction with Mr. Acevedo, and with the
intent to investigate the traffic stop and other criminal
activity, Lt. Stopper asked Mr. Acevedo to accompany him back
to his patrol car while he checked on Mr. Acevedo's
documents. Mr. Acevedo agreed and Lt. Stopper told Mr.
Acevdeo that he would just issue him a warning if
“everything checks out.” Id.
(front-facing camera between the 2:55-3:56 mark). When both
men got into the patrol car, Lt. Stopper turned on the
inside, passenger-side camera and began recording his
conversation with Mr. Acevedo. He also began conducting his
usual records checks.
Stopper testified that the quickest he could write a traffic
ticket like the one here would be about 10 minutes, but that
his traffic stops usually last about 10 to 15 minutes.
Factors contributing to this duration include checking the
driver's registration, insurance, and whether the driver
has any outstanding warrants. Sometimes, this interaction
includes checking the driver's criminal history, which
Lt. Stopper can do only by calling his dispatcher. And it
also includes waiting on dispatch to send him the ticket
number. Lt. Stopper also testified that it is his general
practice to wait to fill out the ticket until he has finished
all of his records checks, and that he followed this practice
during the November 14, 2016 stop.
men talked while Lt. Stopper began the records checks
necessary to complete the traffic stop. Lt. Stopper asked Mr.
Acevedo where he was headed and where he was coming from. Mr.
Acevedo responded that he was headed back home to New York
after a week-long trip to Disneyland in Anaheim, California.
Mr. Acevedo then asked Lt. Stopper where he could position
the GPS so that it didn't obstruct his view. Lt. Stopper
answered his question, but explained that the bigger safety
concern was following the car in front of him too closely.
Stopper then directed the conversation in a new direction. He
asked Mr. Acevedo several questions about his travel plans.
Those questions included: (1) whether Mr. Acevedo and his
passenger had driven non-stop from New York to California;
(2) when they had left New York for California; (3) whether
Mr. Acevedo or his passenger knew anyone in Anaheim; (4)
where they had stayed while in Anaheim; and (5) when they had
arrived in Anaheim. Mr. Acevedo explained that his passenger
was scared to fly, so they had driven non-stop from New York
to California, each taking turns driving while the other one
slept. He told Lt. Stopper that neither he nor his passenger
knew anyone in Anaheim, and that they had stayed at a
Residence Inn hotel. But Mr. Acevedo's answers to Lt.
Stopper's other questions were vague. Mr. Acevedo stated
that they had left New York about a week before, but seemed
unable to answer Lt. Stopper's question about when they
had arrived in Anaheim. When asked again a few moments later,
Mr. Acevedo stated that he thought they had arrived in
Anaheim the previous weekend. Throughout this conversation,
which lasted about four minutes, Lt. Stopper can be heard
clicking a mouse and typing on his computer.
five minutes after he approached Mr. Acevedo's car on
foot, Lt. Stopper asked Mr. Acevedo who his passenger was.
Mr. Acevedo responded that it was his girlfriend. When asked
her name, Mr. Acevedo said that her first name was Jessica
but that he did not know her last name because they had just
met. After hearing this answer, Lt. Stopper radioed dispatch,
telling the dispatcher Mr. Acevedo's license plate and
driver's license numbers. He also radioed an officer
operating a K-9 Unit, Sergeant Ricard.
Stopper then left Mr. Acevedo in his patrol car and went to
talk with Jessica, who was still sitting in the back seat of
the Fusion. Lt. Stopper asked Jessica the same questions he
asked Mr. Acevedo. But she gave different answers. She told
Lt. Stopper that her name was Yesenea, that she and Mr.
Acevedo-whose first and last name she knew-had been dating
for a year and that the trip to Disneyland was to celebrate
their anniversary together. She also said that they had
stayed at a Marriot hotel, and that their visit had lasted
two days. This conversation with Jessica-who is the
Yesenea Collazo charged in the case-lasted about a minute.
Ex. 1 (front-facing camera beginning at 8:55).
talking with Ms. Collazo-a little more than seven minutes
after the traffic stop began-Lt. Stopper returned to his
patrol car, radioed for a K-9 Unit, and began writing the
traffic-stop ticket. At this time, Lt. Stopper testified that
he intended to detain Mr. Acevedo and Ms. Collazo until the
K-9 Unit arrived. The K-9 Unit driven by Sergeant Ricard
arrived a few minutes later-roughly 9 or 10 minutes into the
traffic stop. Lt. Stopper remained in his patrol car with Mr.
Acevedo. While Sergeant Ricard walked the drug dog around the
outside of the Fusion, Lt. Stopper told Mr. Acevedo that he
was going to give him a verbal warning about the items in the
windshield, but was going to give him a written warning for
following the car in front of him too closely.
Stopper then asked Mr. Acevedo a few more questions, and,
about 11 minutes after Lt. Stopper first had interacted with
Mr. Acevedo, the drug dog alerted. About the same time, one
can hear Lt. Stopper writing on something. Also, Lt. Stopper
radioed dispatch again. And, about 13 minutes into the stop,
Lt. Stopper returned Mr. Acevedo's paperwork to him,
issued a copy of the written warning, and informed him ...