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United States v. Acevedo

United States District Court, D. Kansas

August 10, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ALVIN ACEVEDO (01) and YESENEA COLLAZO (02), Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         On 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 passenger seat.

         On 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 Suppress.

         I. Factual Background

         In the 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.

         When 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.

         Mr. 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.

         During 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.

         Stopper 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.[1]

         Lt. 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, [2] 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 drop cars.

         After 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.[3] He also began conducting his usual records checks.

         Lt. 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.

         The two 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.

         Lt. 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.

         About 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.

         Lt. 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.[4] 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).

         After 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.

         Lt. 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 ...


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