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United States v. Berg

United States District Court, D. Kansas

August 1, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK BERG (01), Defendant.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE.

         On 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 in it.

         Now, 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).

         I. Background

         The following facts are taken from the evidence presented at the July 11, 2018 motion hearing.

         A. Vehicle Behavior

         Around 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.

         About 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 minivan.

         When 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 camera.[1]

         When 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 individual.

         Based 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.

         B. Traffic Stop

         When he 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.

         When 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.

         As Mr. 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.

         Once 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.

         During 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.

         C. Consensual Encounter

         About 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.

         Trooper 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.

         At that 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.

         D. Detention for Dog Sniff

         Trooper 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.

         While 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.

         Technical 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. at 50:25-50:48.

         When 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.

         Nico 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.

         After they discovered the suspected marijuana, the troopers read Mr. Berg the Miranda[2]warning. Mr. Berg then gave an incriminating statement to police, explaining that he had been hired to make a ...


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