United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
December 9, 2017, Trooper Kyle Seiler of the Kansas Highway
Patrol (“KHP”) stopped defendant Mark Berg on
Interstate 70. After he completed the traffic stop, Trooper
Seiler continued the encounter in a consensual manner.
Trooper Seiler asked Mr. Berg a series of questions that
culminated with him asking for consent to search Mr.
Berg's vehicle. When Mr. Berg declined, Trooper Seiler
detained him and requested a drug detection canine to come to
the scene. After the canine indicated that Mr. Berg's
vehicle contained a controlled substance, Trooper Seiler
searched the vehicle. He discovered 471 pounds of marijuana
Mr. Berg asks the court to suppress all evidence and any
statements he made after Trooper Seiler detained him for the
dog sniff because, he says, Trooper Seiler lacked reasonable
suspicion to detain him. For reasons explained by this Order,
the court denies Mr. Berg's Motion to Suppress (Doc. 15).
following facts are taken from the evidence presented at the
July 11, 2018 motion hearing.
10:30 p.m. on Saturday, December 9, 2017, Trooper Seiler was
stationed in the median near milepost 225 on Interstate 70 in
Ellsworth County, Kansas. He was monitoring traffic traveling
on the eastbound-half of the interstate. While stationed
there, Trooper Seiler noticed three vehicles traveling in
close succession to one another. The vehicles were traveling
in this order: a light-colored pickup truck; a red minivan;
and a dark-colored compact car. He noted the three vehicles
were following each other closely, all at about the same
speed in the right, or travel lane. The vehicles'
proximity to one another and their speed-they were traveling
at about 65 mph in a 75-mph zone-caught Trooper Seiler's
attention. That combination of facts led him to suspect the
three vehicles might be traveling together. He decided to
investigate further and pulled out onto the highway.
one-half to three-quarters of a mile from Trooper
Seiler's original position, he caught the last of the
three vehicles-the compact car. At this point, the pickup and
the minivan had moved farther ahead of the compact car.
Trooper Seiler began pacing the compact car to check its
speed while simultaneously checking the compact car's
registration. The car was registered in California to a
rental car company. And it still was traveling about 65 mph.
Trooper Seiler did not see the compact car commit any traffic
infractions so he decided to break off contact and catch the
Trooper Seiler caught the minivan, he began to pace it. While
doing so, he began running its registration. He learned that
it was registered in Arizona to a rental car company. Trooper
Seiler also noted that the minivan was following the pickup
closely-less than 100 feet separated the two-and he intended
to time their separation. Before he could do so, he watched
the minivan leave the roadway to the right. Both right tires
completely crossed the right fog line onto the rumble strips
for about two or three seconds. Trooper Seiler heard the
tires on the rumble strips and could see pavement between the
van's right tires and the white fog line. At this point,
Trooper Seiler activated his dash-mounted
the minivan left the roadway, the pickup began to accelerate
away from the minivan. Trooper Seiler began to follow the
pickup as it accelerated, and he clocked its speed at 85 mph.
The pickup stopped accelerating and maintained a speed around
84 mph. Trooper Seiler checked the pickup's registration
and learned that it was registered in California to a private
on his training and experience and the way the three vehicles
behaved, Trooper Seiler now believed that the pickup,
minivan, and compact car were traveling together.
Specifically, based on their actions, Trooper Seiler believed
the pickup and compact car were serving as escort vehicles
and that their drivers were trying to draw his attention away
from the minivan. Trooper Seiler, based on his observations
to date, believed the van was the load or courier vehicle. So
Trooper Seiler slowed until the minivan caught his patrol
vehicle. He pulled behind the minivan and initiated a traffic
stop of it.
approached the minivan, Trooper Seiler noticed the minivan
was packed with cardboard boxes and large black bags. Trooper
Seiler learned the van's driver was Mark Berg- the
defendant in this case. Trooper Seiler asked Mr. Berg if he
had his license with him. While Mr. Berg searched for his
license, Trooper Seiler asked him if he was moving, and Mr.
Berg replied he was. Trooper Seiler then asked where he was
headed, and Mr. Berg replied he was headed home to Coon
Rapids, Minnesota. Trooper Seiler then asked him where he was
coming from, and after a pause, Mr. Berg replied, “Uh .
. . Las Vegas.” Gov. Ex. 1 at 5:52-55. Eventually, Mr.
Berg produced a Minnesota driver's license that Trooper
Seiler later confirmed was valid.
Trooper Seiler was telling Mr. Berg that his vehicle had left
the roadway onto the rumble strips and re-entered the
roadway, Mr. Berg interrupted him and said, “Yea, I was
trying to set my cruise control.” Id. at
5:57-6:05. Trooper Seiler asked for the rental agreement and
noticed the minivan was rented in Las Vegas on December 6,
2017, and due back to the rental car company the next day,
December 10, 2017. After inspecting Mr. Berg's documents,
Trooper Seiler said that he was not going to write a ticket.
Instead, Trooper Seiler asked Mr. Berg to come back with him
and sit in the patrol car. Mr. Berg obliged.
Berg exited the minivan, Trooper Seiler looked into the back
of the minivan a second time. Trooper Seiler then told Mr.
Berg that he needed to pat him down for officer-safety
reasons. Mr. Berg responded that he always had respect for
law enforcement and complied.
they got into the patrol car, Trooper Seiler questioned Mr.
Berg about his travel plans while the trooper prepared the
warning ticket on his computer. From his questions, Trooper
Seiler learned Mr. Berg did not work in Las Vegas and he was
there “just packing up some stuff.” Id.
at 7:27. Trooper Seiler asked Mr. Berg if he lived in Las
Vegas. At first, he replied no, but then corrected himself
and said he had lived there a couple months. When Mr. Berg
was asked specifically what he had packed, he replied,
“Just the stuff I had at the house.” Id.
at 8:02. Trooper Seiler then asked about any furniture he may
have and Mr. Berg explained, “Just a bunch of clothes,
a TV, s*** like that.” Id. at 8:11. Mr. Berg
later explained he only had lived in Las Vegas for about two
months and that “gambling” had taken him there.
this interaction, Trooper Seiler ran Mr. Berg's name for
warrants and prior drug arrests. Dispatch informed the
trooper that Mr. Berg's record included neither. Through
further questioning, Trooper Seiler learned Mr. Berg's
past and future travel plans. Mr. Berg said he'd left Las
Vegas on December 7, 2017, had stopped at hotels and rest
areas, and now planned to drive straight through to arrive
home by 5:00 a.m. or so the following morning. Mr. Berg
specifically mentioned he had stayed in Denver the night
before, December 8, 2017. He also said he needed to be home
for work on Monday morning, December 11, 2017.
eight minutes into the traffic stop, Trooper Seiler gave Mr.
Berg the warning ticket and told him to pay more attention to
the roadway. As Mr. Berg started to leave the vehicle,
Trooper Seiler asked, “Can I ask you a couple more
questions?” Id. at 12:44. Mr. Berg sat back
down and jokingly asked whether he could get “an escort
all the way back to Minnesota?” Id. at 12:46.
Seiler asked if Mr. Berg knew that I-70 was a “pretty
major drug-trafficking corridor?” Id. at
12:57-13:00. Mr. Berg responded that he had never been on
I-70 before. Trooper Seiler then asked if Mr. Berg had
anything illegal in his car-specifying methamphetamine,
cocaine, heroin, large amounts of U.S. currency, guns, or
large amounts of marijuana. Mr. Berg shook his head, smiled,
chuckled, and answered, “Nope.” Then, Trooper
Seiler asked Mr. Berg again if he had any large amounts of
marijuana. Again, he replied he did not. Id. at
13:14-13:30. Trooper Seiler then asked permission to search
Mr. Berg's van. Mr. Berg declined, and said, “I
thought you were giving me a warning?” Id. at
13:30-13:35. Trooper Seiler then asked three more times for
permission to search. Each time, Mr. Berg declined.
Id. at 13:35-14:00.
point, Trooper Seiler asked Mr. Berg, “Is there a
reason you don't want me to search your car?”
Id. at 14:05. Mr. Berg responded, “No. I'm
trying to get back on the road.” Id. at 14:08.
Trooper Seiler said, “I understand. But I'm just
asking you for consent to search it, so we can get you back
on your way.” Id. at 14:09-14:14. Mr. Berg
said no two more times. Trooper Seiler then gave Mr. Berg a
“final opportunity” to consent. Mr. Berg still
said no. Id. at 14:14-14:26.
Detention for Dog Sniff
Seiler told Mr. Berg that he was detaining him to see if he
could get a drug dog to come out to the location. Trooper
Seiler called his dispatcher and asked, “Can you
contact the K-9 for a refusal, please?” Id. at
14:40-14:44. This request was made at 10:40 p.m. About two
minutes later, a second trooper-Master Trooper Steve
Sneath-arrived. Master Trooper Sneath had been stationed in
the median with Trooper Seiler before he initiated the stop.
they waited for the canine, Master Trooper Sneath mentioned
that he had seen three California cars together at the rest
stop. Trooper Seiler responded, “They all left.”
Id. at 17:00-17:03. Master Trooper Sneath then
repeated that he had seen the California cars “all at
the rest stop together.” Id. at 17:25-17:30.
Trooper Seiler testified that he understood Master Trooper
Sneath to be talking about the same three vehicles he found
suspicious. And he also understood Master Trooper
Sneath's statements to indicate that he, too believed,
the vehicles were traveling together.
Trooper Rohr and his canine, Nico, arrived on the scene at
11:10 p.m.-40 minutes after the traffic stop had begun and 30
minutes after Trooper Seiler had detained Mr. Berg. When
Trooper Rohr arrived, Trooper Seiler said this was the
“moment of truth.” Id. at 50:20-50:25.
He explained to Master Trooper Sneath that
“he”-referring to Mr. Berg-is “not very
nervous. But he didn't ever―you know―usually
when someone doesn't want to take the time, they'll
say ‘oh you can search it.' Or ‘I don't
have anything.' I mean, nothing. None of that. I
mean-it's bizarre, whatever it is.” Trooper Seiler
then referenced the increased cost of a one-way rental-the
arrangement that applied to Mr. Berg's rented minivan. He
said, “None of it is making sense.” Id.
Trooper Rohr gave Nico the command to sniff, he directed him
around the minivan in a counter clockwise direction. As
Trooper Rohr directed Nico around the car and passed the
driver's door, he observed an alert. Nico suddenly
changed directions and began to sniff intensely low and high
around the driver's door. The driver's door window
was opened; Nico moved up to the window and began to sniff
more intensely. Trooper Rohr called Nico back to him and
began to direct Nico a second time. Nico changed direction
suddenly and went back to the driver's door; putting his
front paws on the open window, acting like he wanted to jump
into the minivan. Trooper Rohr called Nico to him again and
started to direct Nico down low on the car. Nico turned once
more and went back to the driver's door.
did this a total of four times and, each time, he focused on
the area between the driver's door and the sliding door.
Trooper Rohr gave Nico the command to sniff near the door
seam on the driver's door. After Trooper Rohr gave this
command, Nico sat and stared at the door. Nico is trained to
sit and stare after locating the source of a drug odor.
Trooper Rohr then advised Trooper Seiler that Nico had
indicated on the vehicle, and Trooper Seiler could search the
vehicle. A search of Mr. Berg's minivan led law
enforcement to find contraband, which it claims consists of
471 pounds of marijuana.
they discovered the suspected marijuana, the troopers read
Mr. Berg the Mirandawarning. Mr. Berg then gave an
incriminating statement to police, explaining that he had
been hired to make a ...