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United States v. Martin

United States District Court, D. Kansas

December 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH MICHAEL MARTIN, Defendant.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER UNITED STATES DISTRICT JUDGE

         Defendant is charged with conspiracy to possess with intent to distribute five or more kilograms of cocaine and knowingly and willfully transporting $1, 124, 840 as proceeds of the conspiracy. He moves to suppress the evidence found during the traffic stop of the truck he was driving. Doc. 20. He argues law enforcement violated his Fourth Amendment rights by drilling holes in the metal tube in the bed of his truck. Because the information gathered by law enforcement during the consensual portion of the search provided probable cause to support a search of the metal tube without consent, no Fourth Amendment violation occurred. Accordingly, the Court denies Defendant's motion.

         I. BACKGROUND [1]

         On September 20, 2018, at approximately 8:20 a.m., Trooper Justin Rohr (who had been trained on drug interdiction and had spent two weeks at the San Ysidro Port of Entry working with border patrol and learning concealment methods, techniques, and current trends) stopped a 2016 GMC pickup truck on I-70 for speeding. As he approached the passenger side window, he observed old hoses, electrical wire, and five 6 ft. x 6 in. x 3 in. metal tubes in the truck bed. Defendant handed him an Ohio license and explained he was heading to California to look at a Suzuki Hayabusa motorcycle. He appeared to have been traveling all night, as his eyes were bloodshot, and he had coffee and Red Bull in the cupholders. There were two air fresheners in the truck giving a strong odor. Trooper Rohr saw that Defendant had only a small duffle bag in the back seat. He asked if Defendant was going to load the motorcycle into the back of the truck, and Defendant answered in the affirmative. Trooper Rohr did not think loading a motorcycle in the bed of the truck was feasible given the pipes and hoses.

         Trooper Rohr returned to his patrol car and began issuing a warning while checking Defendant's license and criminal history. Defendant had no criminal history. He then returned to the truck, explained the warning, and told Defendant to have a safe trip. He walked back towards his patrol car but then reapproached Defendant and asked whether he could ask Defendant some questions. Defendant replied “sure.” Trooper Rohr then learned Defendant was an unemployed truck driver who was shopping for a $16, 000 motorcycle, which was “cheap” because it had “special stuff” on it. Defendant had recently purchased the truck in California for $32, 000. He was from Cleveland, Ohio, and was going to an unknown area outside Los Angeles, California. The stay would be for a couple of days depending on what happened, which Trooper Rohr considered to be a quick return for a thirty-four- to thirty-six-hour drive across the country. Defendant was not sure what the quickest route to his destination was; he just decided on this route. In addition, Trooper Rohr knew I-70 is a drug corridor and that I-80 would have been the quicker route. Defendant had only a motorcycle operator's permit, not a license. Based on these facts, Trooper Rohr did not think the trip to purchase a motorcycle was reasonable, even if it was a good deal.

         Trooper Rohr advised Defendant that law enforcement was seeing a large amount of criminal activity on I-70 and that he wanted to make sure Defendant did not have anything illegal in the truck. He asked Defendant if there were large amounts of money in the vehicle, and Defendant told him $1, 500. Trooper Rohr asked if there were any drugs, and Defendant said “no.” Finally, Trooper Rohr asked to search the vehicle, to which Defendant replied “sure.” Trooper Rohr asked Defendant to exit the truck and stand by the front of the truck.

         Trooper Rohr had a narcotics detection dog with him but declined to perform a dog sniff. Instead, he searched the truck's interior and found three rubber-banded bundles of cash, which appeared to be more than $1, 500. He also saw that the ends of the old hoses in the truck bed were so rusted that they were useless and that the metal tubes were strapped together. Based on the appearance, he thought the hoses were staged. He used a density meter on all five tubes and did not think the reading was high enough for something to be inside.

         Trooper Dylan Frantz arrived, and saw that Defendant appeared to be overwhelmed with worry and nervousness, shaking his head, looking down, and talking to himself. He commented to Trooper Rohr, and Trooper Rohr said that Defendant was fine earlier. Trooper Frantz asked Defendant about the tubes. Looking down, Defendant explained he was going to use the tubes as supports for his porch but was too lazy to take them out for the trip. In discussing Defendant's response, the troopers commented to each other that the story made no sense. They then lifted one of the metal tubes and felt something slide inside. They felt movement as they shook it leading them to believe the tubes were hidden compartments for something illegal. They noticed that the tubes had metal caps that appeared to have been welded on multiple times and were freshly painted. Trooper Rohr retrieved a small drill and drilled two holes in the cap of one tube and saw pink fiberglass insulation, which did not accord with Defendant's stated purpose for them. The troopers knew there had to be something heavier in the tube and guessed bundles of money. But they could not access it without grinding off the cap. Defendant, who was directed to stand twenty yards in front of the truck at this point, never objected to the drilling.

         The troopers handcuffed and Mirandized Defendant and took him and the truck to a station.[2] Before leaving the side of the highway, however, Trooper Rohr learned that Defendant did not know the name of the person selling the motorcycle or where he lived; it was all on Facebook. Defendant bought the truck from a woman named Tammy. He could not remember her last name. Along the way, Defendant said he had welded the tubes in the back of his truck a couple of days earlier, that he was teaching himself, and that there was nothing in the tubes. Upon arriving at the station, Defendant was able to observe the troopers grinding the caps off and discovering $1.1 million in red plastic bundles. The troopers concealed the bundles in a box, and Trooper Rohr's dog alerted to it. The troopers found cocaine in a contact lens case that was in one of the plastic bundles.

         Based on the evidence collected, a grand jury indicted Defendant on December 12, 2018, for conspiracy to possess with intent to distribute five or more kilograms of cocaine and knowingly and willfully transporting $1, 124, 840 as proceeds of the conspiracy. Doc. 1. Defendant now moves to suppress the evidence found in the tubes.

         II.ANALYSIS

         Defendant contends the troopers violated his Fourth Amendment rights when they drilled two holes in the metal tube. Defendant concedes that he consented to a search of his entire truck but nevertheless contends that this consent did not include permission to drill the holes in the metal tube.

         The fact that Defendant may not have consented to the drilling (an issue the Court does not decide) does not necessitate suppression of the contraband if there is another valid basis justifying the intrusion. It is well settled that a vehicle may be searched without consent or a warrant if there is probable cause to believe that it contains contraband or other evidence that is subject to seizure under law. United States v. Ross, 456 U.S. 798, 809 (1982). Probable cause exists when the totality of the circumstances warrants a reasonable person in believing contraband or evidence of a crime is present. Florida v. Harris, 568 U.S. 237, 243 (2013). A vehicle search conducted pursuant to probable cause may include any item or component in the vehicle that might contain the object of the search. Ross, 456 U.S. at 821-24 & n.28. And such a search may include some injury to the vehicle or item if the injury is reasonably necessary to gain access to a specific location where law enforcement has probable cause to believe that the object of the search is located. Id. at 817-18.

         There is no dispute that Trooper Rohr lacked probable cause to drill the holes when he initiated the consensual search. The proper scope of his search was therefore constrained by a reasonable interpretation of Defendant's statement of consent. See United States v. Lyons, 510 F.3d 1225, 1239 (10th Cir. 2007) (discussing scope of consensual search). Based on his earlier observations and acting reasonably within the scope of consent, Trooper Rohr examined the metal tubes, felt something move inside, and noticed the welding and painting. The Court finds that the totality of the information gathered by Trooper Rohr while he was engaged in a permissible consensual search provided the probable cause necessary to extend the search to drilling the holes. See United States v. Ledesma, 447 ...


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