JULIE A. ROBINSON, District Judge.
This matter comes before the Court on defendant Raymundo Elenes-Mombela's Motion to Suppress (Doc. 33), and Motion to Join (Doc. 41), and defendant Luis Beltran-Palafox's Motion to Suppress (Doc.
The matter was fully briefed on April 29, 2010, and the Court took the motions under advisement at that time. Because no evidence was presented regarding the voluntariness of defendants' statements to law enforcement officers, the parties asked the Court to limit its ruling to defendants' motions to suppress evidence obtained in the traffic stop. The Court will not rule on defendants' motions to suppress their statements until the time of trial.
Having reviewed the evidence and arguments presented by the parties regarding the suppression of evidence in this case, the Court is now prepared to rule. For the reasons explained in detail below, Beltran-Palafox's Motion to Suppress Evidence (Doc. 38), joined by co-defendant Raymundo Elenes-Mombela (Doc. 41), and Elenes-Mombela's Motion to Suppress Evidence (Doc. 33), are denied.
On December 15, 2008, officers of the Saline County Police Department were conducting surveillance on a residence in New Cambria, Saline County, Kansas in relation to an on-going narcotics investigation. During surveillance, officers noticed a 1991 Lincoln Town Car, bearing Kansas license plate number 130BHW, parked in the driveway and occupied by three individuals later identified as the defendant, Luis Beltran-Palafox, the co-defendant, Elenes-Mombela, and an individual by the name of Garrett Greer.
During the surveillance, Beltran-Palafox and Elenes-Mombela were seen entering and exiting the residence, returning to the Lincoln Town Car, and placing unknown items inside the vehicle. At one point during the surveillance, automatic gunfire was heard from the property, although none of the three individuals was observed with a firearm.
Approximately one hour later, Beltran-Palafox and Elenes-Mombela left the property in the Lincoln Town Car. Officers followed the vehicle.
At approximately 16:37 hours, Investigator McCary contacted Officer Ricardo Garcia, who was on regular patrol in the Salina area, to inform him that he was to stop the Lincoln Town Car. Investigator McCary gave a description of the vehicle and its location near Ohio Street, namely that the car's window tinting appeared to be darker than allowed by law and that the car was occupied by two subjects. Officer Garcia was further informed that the car was registered to a Luis Beltran and that the subjects were possibly armed. At the suppression hearing, Officer Garcia testified that someone on the drug task force informed him that the individuals were observed firing a handgun.
Shortly thereafter, Officer Garcia spotted the Lincoln Town Car, observed its window tinting to be "substantially dark." Officer Garcia testified that he has stopped cars for window tinting violations on previous occasions. He was unable to see the movement in the car because it was so dark. Based on his experience, he suspected
When Officer Garcia approached the driver (Beltran-Palafox), he informed him of the reason for the stop (dark window tinting) and asked for the driver's license and current proof of insurance. Officer Garcia noticed that the driver (Beltran-Palafox) and passenger (Elenes-Mombela) both appeared nervous; the passenger's hands were shaking and he began smoking. Beltran-Palafox informed Officer Garcia that he only had a Mexican driver's license and provided it to him. The license identified the driver as "Oscar Daniel Villa-Hurtado" and appeared to have been issued by the Mexican State of Durango. Officer Garcia testified that he has seen such licenses on previous occasions. He had no idea whether "Oscar Villa-Hurtado" was the driver's real name, but he suspected the Mexican license was not valid.
Officer Garcia returned to his patrol car to speak with other officers over the radio. At one point in the conversation, Officer Garcia can be heard on the police video responding that there was "a DL issue anyway with the Mexican driver's license," explaining that he did not believe it was valid in Kansas. However, he was uncertain whether a citation or a "15" was appropriate. Officer Garcia also conducted a license check and a check for warrants on the name "Villa-Hurtado" and likely derivatives of that name. Officer Garcia stated he did not know the identity of the passenger. Dispatch was unable to locate a Kansas DL for "Villa-Hurtado" and found no warrants for "Villa-Hurtado." Officer Garcia testified at the suppression hearing that the City of Salina informed its officers that a Mexican driver's license was not valid, and driving without a valid license is an arrestable offense. He explained that there was no question in his mind the driver would be arrested. However, on cross-examination, he noted that it is not an offense for someone traveling through the state to use a Mexican driver's license, and he had never before seen this particular car or these defendants.
Officer Garcia again made contact with the driver and at the same time checked the tint on the driver's side window using a tint meter. Although Officer Garcia could not remember the last time the tint meter had been tested, on this occasion, the tint came back at 15%, well below the allowable limit of 35%.
Officer Garcia returned to his vehicle and spoke, via radio, with Lt. Norton who advised that Beltran-Palafox should be placed under arrest for failing to possess a valid driver's license. Lt. Norton further stressed that both subjects should be considered
While waiting, Officer Garcia asked dispatch to do a check on Elenes-Mombela's identification. Dispatch eventually responded to report Elenes-Mombela had a "system generated license," which Officer Garcia indicated was "not valid." On the video, dispatch made final contact with Officer Garcia at 16:53:40 to tell Officer Garcia that he found Elenes-Mombela "locally" as well.
After this, Officer Garcia no longer communicated with dispatch, but waited in the patrol car for the other officer to arrive. At 16:54:00, Officer Garcia called another officer and asked, "How far out are you?" At 16:56:13, the video records the sound of a dog. When Canine Officer Deputy James Hughes arrived on the scene with Rony, the drug detection dog, Officer Garcia exited the patrol car. Officer Garcia explained that he intended to "15" the driver and do a search-incident-to-arrest.
Officer Garcia made contact with Beltran-Palafox, asked him to step out of the vehicle, performed a patdown search, and placed him under arrest. Officer Garcia closed the front driver's side door. After Beltran-Palafox was placed in the patrol car, Officer Garcia explained to the other officer that he intended to do a patdown of the passenger for weapons, but stated that he "might be released." Some discussion was had about "holding" him. At this point, Officer Garcia contacted Elenes-Mombela and asked him to step out of the vehicle during the sniff by the canine. Officers performed a patdown search of Elenes-Mombela. The officers discussed the possibility of someone coming to pick up the car. On the video recording, the officers also discussed Elenes-Mombela's request to have his girlfriend pick up the car. At some point, Elenes-Mombela's phone was taken from him and his wallet was turned over to officers on the drug task force.
On the video, Deputy Hughes is seen with the canine, Rony, circling the vehicle multiple times (approximately three times). The front passenger door remained open after Elenes-Mombela exited the vehicle. Hughes and Rony passed the front passenger door, but Hughes pulled the dog away and the team circled the vehicle one full time. Upon returning to the front passenger door a second time, Hughes allowed Rony to enter the front passenger door. He let go of the leash and opened the back passenger door on the right side. He closed the front passenger door and Rony exited the back passenger door. They then moved to the opposite side of the car, and Hughes opened the back seat passenger door (behind the driver's seat) and allowed Rony to enter the vehicle. A package fell out the door and when Rony exited, the team moved away from the vehicle. Another person on the scene threw the package into the car and closed the door. Hughes and Rony returned to the vehicle. Hughes opened the driver's side door and allowed the dog to enter again. When the dog exited, he closed the door. This concluded the drug-dog sniff. Although the events inside the car cannot be seen on the police video, Hughes testified that Rony scratched at the floor in the back passenger seat and the floor by the front driver's seat when he was inside the vehicle, alerting to the presence of narcotics.
Due to the nearly freezing temperatures outside, the vehicle was transported to the Salina Police Department garage to be impounded and searched. Officer Garcia testified that there was no one to pick the vehicle up. He explained that he was involved in interpreting for the police and both defendants. The entire stop, including the dog sniff of the vehicle, lasted approximately 28 minutes.
Officer Greg Swanson did the inventory search of the vehicle. During December 2008, he worked as an I-135/I-70 Drug Task Force Officer in the Saline County Sheriff's Department. He regularly inventoried vehicles that had been impounded. When defendants' vehicle was brought to the police station, Investigator Feldman informed Swanson that a drug dog had alerted to the vehicle, but Swanson was not told where. Swanson testified that less than one minute after opening the driver's door, he noticed the control panel was loose and had non-factory screws and fresh tool marks. He worked in narcotics and had training and experience with concealed compartments in vehicles, and he routinely checked the door panels because it has a natural void where drugs may be hidden. He stated he would do so even if no drug dog alerted to the vehicle. Swanson testified at the hearing that the control panel in this case was loose, and it could simply be moved with the fingers; only the wires within the control panel were attached. The Saline County Sheriff's Department had a policy that, whenever a vehicle was impounded, towed, or seized, the vehicle was inventoried and all items inside the vehicle are to be noted on an inventory sheet. In searching the defendants' vehicle, Swanson found: a baggie of methamphetamine, which would later conclusively show 55.20 grams of methamphetamine with a purity level of 99%, a baggie containing suspected MSM, and a loaded handgun hidden in the driver's side door under the window/lock control panel.
On March 16, 2009, defendants Beltran-Palafox and Elenes-Mombela were indicted (Doc. 1). On April 15, 2009, a First Superseding Indictment was issued (Doc. 15), charging both defendants with possession, with intent to distribute, 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Luis Beltran-Palafox
At the suppression hearing, Deputy James Hughes, the canine handler, and two experts, Steven Nicely and Kenneth Wallentine, testified on the issue of Rony's training and reliability in this case.
Hughes has worked as a canine officer since 1999, trained and worked with three different drug detection dogs, and attended numerous training schools and in-services dealing with drug enforcement, including 120 hours of training as a canine officer in Texas. Hughes got Rony in 2003. Rony was certified by the Nelson Rivera canine school in Junction City, Kansas before Hughes received him. Rony was certified for a dual purpose: for narcotics detection and for general patrol purposes, including apprehension, evidence recovery, tracking, and area searches. He was an aggressive indicator, meaning he demonstrated the presence of narcotics generally by scratching, biting and barking. When Rony was successfully certified in 2003, through "blind" testing, meaning Hughes did not know where the items were located. As maintenance, the team trained sixteen hours monthly with a group of other handlers from area police departments, utilizing various environments and types of narcotics. Rony and Hughes' annual certification came through the Heart of America Police Dog Association ("HAPDA"), where he learned to keep records for Rony during testing and field work documenting when Rony was deployed, the circumstances and location of the search, how the canine behaved, and whether anything was found. Hughes learned to improve his record-keeping practices from other handlers and training classes. From 2003 until 2009, the certification standards were consistent and often involved four tests performed over a series of days. Rony never failed any certification test.
Hughes testified that Rony had some problems with attention when he first started. He would get distracted by hot dogs. However, Hughes testified that training was done to proof Rony off hotdogs, so that he was not searching for the hotdogs, but for the narcotics. Rony was "proofed off" various items, including money, plastic baggies, dog food, and his "calm ball." As Rony improved, he learned to leave the proofing items alone.
Hughes noted that Rony has previously become "overwhelmed" by large amounts of narcotics, but such behavior is common among drug detection dogs. They are trained to identify the source of the odor, but when the odor is overwhelming, the dog becomes confused. Hughes stated that he is familiar with Rony's personality and can detect when he is less motivated or less engaged.
From Rony's training reports, Hughes was able to generate percentages to determine Rony's reliability. Hughes divided the number of "known finds" presented in training by the number of times Rony found narcotics correctly and determined Rony's success rate as follows:
2004-91.3%
2005-87.4%
2006-96%
2007-94%
2008-90%
As a canine handler, Hughes testified that he would not be satisfied with anything below 85%. In each of these scenarios, Hughes was unaware of the location of the narcotics; it was placed by a third party. Hughes explained that he did not use field performance to calculate Rony's percentages because a drug dog is trained to detect odor, and even when the officers are
Hughes testified that he frequently allows Rony off the leash to search, but will keep Rony on the leash when a search is performed on the interstate. On December 15, 2008, the weather was below freezing. The heater in defendants' vehicle was running and the air currents were moving the odor from the car. Rony is trained to find the "saturation point" or the "source" of the odor. Although Hughes was asked whether he "jerked" Rony's leash during the search of the vehicle, Hughes explained that he did not, but often moves the leash behind him and changes hands as he and Rony change directions around a vehicle.
Hughes explained that, when they first passed the front passenger door, Rony "trie[d] to lunge into the door" and Hughes restrained him from entering because he wanted to make a second pass to determine if "this [was] the real deal." Hughes redirected him to circle the vehicle. Hughes testified that Rony did not alert outside of the vehicle but gave an alert for the first time when he was inside the vehicle. Rony's breathing became more intense and when he entered the car, and he began biting and scratching at the driver's seat. Hughes told him he was a "good boy" and redirected him to search the rest of the car to determine if the saturation point was stronger elsewhere. At one point, Hughes let him off the leash and Rony jumped into the back seat of the car, where he began scratching at the floor of the passenger's seat, behind the driver's seat, identifying that as the saturation place.
On cross-examination, defense counsel noted that there were instances in Rony's training records and reports where he became distracted during a search, failed to detect narcotics, and responded to non-contraband items. Hughes admitted that such instances did occur.
Rony died March 30 or 31, 2009, of Lou Gehrig's disease, but he did not exhibit symptoms until early March of 2009.
At the evidentiary hearing on defendants' motions to suppress, the government objected to the expert testimony of Steven Nicely. The Court took the matter under advisement. Because several issues in defendants' suppression motions rely on the expert testimony by Steven Nicely, the Court will first address the government's objections.
The Court has broad discretion in deciding whether to admit expert testimony.
The proponent of expert testimony must show "a grounding in the methods and procedures of science which must be based on actual knowledge and not subjective belief or unaccepted speculation."
"To qualify as an expert, the witness must possess such `knowledge, skill, experience, training or education' in the particular field as to make it appear that his or her opinion would rest on a substantial foundation and would tend to aid the trier of fact in its search for the truth."
"Reliability questions may concern the expert's data, method, or his application of the method to the data."
It is within the discretion of the trial court to determine how to perform its gatekeeping function under Daubert.
Mr. Nicely testified on the issue of whether the drug dog in this case was reliable and whether the drug dog gave an alert or indication to the smell of drugs in the vehicle on December 15, 2008. The government argues that Mr. Nicely's testimony does not qualify under Rule 702 because his method of evaluating the reliability of drug dogs was "not widely accepted in any community."
At the hearing, the government questioned Mr. Nicely's educational background and competence to express opinions generally on matters of behavioral science. Nicely has been involved with police dogs since 1973. He started in the
Although Nicely does not have a college degree, he has completed twenty-one formal hours in behavioral science and is in the process of completing his associate's degree in behavioral science. He has published approximately four or five articles, including a peer-reviewed article published in the November 2009 issue of the Journal of Veterinary Behavior,
The Court finds that Nicely has extensive experience in the training of detection dogs and dog handlers for law enforcement purposes. His expertise is largely based on experience, rather than formal education. Although the government noted that Nicely's behavioral sciences degree is not specifically devoted to canine behavior, Nicely testified that the behavioral sciences apply to all animals, whether human or canine. The Court is not convinced that a specialized degree in behavioral sciences as it applies to drug detection dogs is a necessary prerequisite to providing expert testimony on the relevant issue in this case: the reliability of a drug dog.
More specifically, the government has objected to the reliability of Nicely's theories on the basis that they are not widely accepted. At the suppression hearing, the government objected:
In Daubert, the Supreme Court expressly held,
Nicely testified that he uses a training method called "operant conditioning," which is based in the behavioral sciences. Under this method, the subject exhibits a behavior and the trainer gives positive reenforcement when the correct behavior is exhibited and negative or no reenforcement when the incorrect behavior is exhibited. Nicely advocates for a thorough record-keeping process—in training exercises, certification processes, and in the field— that would allow another person to reproduce the tests and determine the reliability of a drug detection dog on the basis of well-kept records. He argues that detailed record keeping allows for an objective analysis of reliability. Although most drug dog training certification programs do not use the behavioral sciences as a method of training, Nicely testified that the United States Department of Defense uses such methods to train dogs for drug detection, bomb detection, and general patrol purposes.
In preparation for the suppression hearing, Nicely reviewed the dog training records of Rony from 2005 until 2009, as well as his certification, in order to evaluate Rony's reliability as a drug dog. He also watched the police video from the traffic stop on December 15, 2008, to evaluate the dog handler's methods and the reliability of the alert given by Rony. Nicely never interviewed Rony's handler, James Hughes, but explained that, assuming the records are truthful, they are the most direct source of information on Rony's response rate. Nicely prepared a written report in addition to his testimony.
Nicely bases his opinion on his experience and expertise, as well as his investigation. In this case, "the relevant reliability concerns may focus upon personal knowledge or experience," rather than the Daubert factors and scientific foundations.
Steven Nicely defined a "well-trained dog" as one that "will only reveal the presence or the absence of drugs, a contraband item." That means "the animal had to be under the stimulus control of the discriminate stimulus." Nicely testified that he did not consider Rony to be a "well-trained dog" because, based on his records, he occasionally exhibited a response when the stimulus was not present, and the dog handler did not apply an "extinction training" to eliminate or reduce the probability of repeat behavior.
Nicely noted that a dog will often respond to "novel" smells, which a handler might misconstrue as an alert. Thus, the handler rushes to a conclusion before the dog makes a final decision on the matter. Nicely also explained that, with regard to drug detection dogs, motivation cannot be taught. However, handlers will often use a "scratch box" to intensify the dog's response to a stimulus.
Nicely testified about the Clever Hans Effect on animals. When incorrectly trained, a dog will look to the handler's actions to determine when to give its response rather than to rely on the presence or absence of the stimulus. Nicely calls this "subconscious cuing" or "prompt dependency."
Nicely argued that he was unable to do a thorough review of Rony's reliability because the records supporting his certification were not sufficiently detailed. Nicely stated, "[i]f I can't measure it, then it's speculation."
Nicely reviewed the video of the traffic stop on December 15, 2008. He testified that the dog did not appear to be focused because he was often looking away from
Kenneth Wallentine testified on behalf of the government. He worked in private practice and served as a clerk for district court and the appellate court judges. In 1994, he was trained as a dog handler and worked in this capacity until 2001 and has published multiple peer-reviewed articles and books relating to canines. He currently works for the Attorney General for the State of Utah and is a member of the United States Police Canine Association and the California Narcotics Canine Association, as well as an invitation group called the Scientific Working Group on Dogs and Orthogonal Detector Guidelines ("SWGDOG"), which was organized under the Federal Bureau of Investigation and the Department of Homeland Security and Transportation and Safety Administration. He worked with 300 to 400 dogs in a supervisory capacity or through maintenance training and problem solving.
In preparation for the hearing, Wallentine interviewed Deputy Hughes three times, reviewed the training records and field reports for Rony, as well as the incident report and police video from December 15, 2008, and prepared a written report. Wallentine testified that he shared some of Nicely's concerns after reviewing the records, specifically, whether Rony had been proofed off items that had previously served as distractors, such as hotdogs. Wallentine's interview with Hughes resolved many of those questions. Wallentine believed Hughes was candid and forthright as well as humble. Hughes explained that he was receiving ongoing training from other handlers and, through this, he improved his record-keeping practices over time. Wallentine explained that, because animal performance changes over time, the best indicator of present and future behavior is recent past performance. Wallentine testified that the most relevant records in this case are six to twelve months prior to the incident in December 2008. He explained that the most significant event in that time frame was Hughes and Rony's successful certification as a team by HAPDA in October of 2008, only months before the incident. Certification usually occurs annually, and at all times Rony was in service, he was certified.
Wallentine reviewed the certification standards of HAPDA and compared them to standards in other major police dog service organizations across the country and found that HAPDA's standards were consistent with the two largest in the country. Wallentine testified that Rony's certification was based on "single blind testing," in which the handler is unaware whether narcotics are present. Only the judge/evaluator knows what is in the controlled environment. Single blind testing is considered a "best practice" at SWGDOG. Wallentine also testified that Hughes's 16-hours of monthly training was standard practice. Based on "known" searches in training and certification, Wallentine determined that Hughes and Rony were 92% reliable over the five years prior to the incident; they were 91.74% reliable in the two years preceding the incident. Wallentine stated that reliability determinations are best made on the basis of a dog's training and certification records, because there is no way to determine whether a dog's alert in the field may have accurately identified an odor the officers were unable to confirm.
Wallentine reviewed the video of the traffic stop and noted that air currents were likely shifting during Rony's sniff. The door was closed on the driver's side but was open on the passenger side, and hot air was exiting the car while cold air was entering it. Although Wallentine thought it unnecessary for Hughes to do a second sniff of the vehicle before allowing the dog to enter, he understood that Hughes wanted to be "fair" and do a second check. Wallentine explained that the foam material on the edge of the seat likely absorbed some of the narcotics odor, causing Rony to believe he had found the saturation place in the seat instead of the driver's door.
Both defendants appear to focus on the following arguments: (1) the initial stop was unlawful; (2) the detention exceeded the scope and duration of the initial stop, and was unreasonably prolonged to allow the drug dog to arrive; (3) the drug dog was unreliable and did not provide probable cause to search the vehicle; (4) defendants' arrests were not based on probable cause; (5) the impoundment of the vehicle and the inventory search were unlawful; and (6) evidence obtained was fruit of the poisonous tree. The government argues that Elenes-Mombela does not have standing to challenge the search of the vehicle.
Defendants argue the initial stop was unlawful because it was not supported by (a) probable cause or reasonable suspicion to believe criminal activity or a traffic violation had occurred, was occurring, or was about to occur, (b) probable cause to believe evidence of a crime was present in the vehicle, or (c) a valid arrest or search warrant. The government argues that Officer Garcia's subjective motives are irrelevant, and objectively, there was reasonable, articulable suspicion to believe defendants' window tinting violated K.S.A. § 8-1749a(a)(3). Defendants have submitted evidence regarding the tint on the windows, arguing that no reasonable person would have believed the windows violated Kansas' window-tinting statute.
Under the Fourth Amendment, a traffic stop is a "seizure" which is reasonable only if (1) the officer's action was "justified at its inception," and (2) the detention was "reasonably related in scope to the circumstances which justified the interference in the first place."
Kansas statute § 8-1749a(a)(3) provides that
Subsection (e)(1) states that "after January 1, 1988, violation of the statute constitutes a misdemeanor.
Prior to the statute's amendment, eliminating the word "substantially," the Kansas Supreme Court explained the rationale behind the law:
In 2008, the Kansas Court of Appeals explained that an officer's "reasonable suspicion" that a vehicle's windows violate the window-tint law is limited to the facts available to him or her prior to the traffic stop: "`Neither the concepts of probable cause nor "articulable suspicion" would require that an officer have tint meter readings before making a stop for a window tint violation.'"
In the present case, the evidence shows that Officer Garcia had an objectively reasonable suspicion that defendants' windows violated K.S.A. § 8-1749a(a)(3), even though defendants were able to perform a subsequent window transparency test with different results than those obtained by Officer Garcia. Defendants have admitted pictures of the windows taken on a sunny day with one or more of the windows rolled down. In the pictures, the light shines through a single window pane well. However, the transparency of a particular set of windows on a particular day depends, to some extent, on a comparison with other vehicles traveling on the roads that day. The Court has reviewed the videotape of the traffic stop taken during the winter months, in the afternoon of December 15, with clouds overhead and all widows rolled up. While weather conditions will inevitably affect an officer's ability to see into a traveling vehicle, the Court notes that a suspected window tinting violation may also be relative to other cars. In deciding whether the officer's suspicions were reasonable, a court is to consider whether the facts "viewed from the standpoint of an objectively reasonable police officer . . . establish a minimal basis for reasonable suspicion."
Here, Officer Garcia believed the window tinting was "substantially dark," and after approaching the vehicle, Officer Garcia's reasonable suspicions were confirmed when he performed a window transparency test that revealed that the windows permitted only 15% of light to pass through, which is 20% below the 35% limit set by Kansas law. There is a significant difference between the transparency of defendants' windows and the legal limit. Thus, Officer Garcia had a reasonable articulable suspicion of an equipment violation and, on this basis, the stop was justified at its inception.
Even if the initial stop was valid, defendants argue the length and purpose of the stop was extended beyond its initial justification merely to await the arrival of the drug-detection canine. Defendant Elenes-Mombela also argues that the police unlawfully withheld his identification after the checks were performed, and thus, his detention and removal from the car were illegal. The government responds that, because the driver failed to produce a valid driver's license, Officer Garcia had reasonable, articulable suspicion of illegal activity and was permitted to investigate further regarding the driver's identity and whether he had a valid driver's license to operate the vehicle. Because Elenes-Mombela's identification card did not permit him to operate the vehicle lawfully, the officers were permitted to detain the passenger to investigate the driver.
Thereafter, "when a driver has produced a valid license and proof of entitlement to operate the vehicle, an officer may issue a citation, but then usually must allow the driver to proceed without further delay or questioning."
At the time of the traffic stop, Officer Garcia articulated concern that he did not believe Beltran-Palafox's license was valid. Thus, he was permitted to detain defendants further to determine whether the driver, Beltran-Palafox, or the passenger, Elenes-Mombela, could lawfully operate the vehicle.
Defendants also challenge Officer's Garcia's decision to call for a canine unit before approaching the vehicle or questioning the occupants. The Tenth Circuit has held that a dog sniff, deployed during a lawful seizure, "is not a `search' within the meaning of the fourth amendment and therefore an individualized reasonable suspicion of drug-related criminal activity is not required" before the animal is deployed.
Luis Beltran-Palafox challenges the legality of his arrest on the grounds that he had a valid Mexican driver's license to operate the vehicle. Officer Garcia testified that the City of Salina instructed officers that a Mexican driver's licenses was not valid, and Lt. Norton directed Officer Garcia to make the arrest. The government argues alternatively that there was probable cause to arrest Beltran-Palafox for committing a misdemeanor in Officer Garcia's view.
To make a warrantless arrest, there must be probable cause.
The Court is unpersuaded there was probable cause to arrest Beltran-Palafox for driving with a Mexican driver's license. The government did not cite any authority, state, federal, or municipal, for Beltran-Palafox's arrest on the basis of driving with a Mexican driver's license.
Simply put, probable cause is unsubstantiated.
The government, however, has stated an alternative basis for the arrest. It argues that Officer Garcia had probable cause to arrest Beltran-Palafox for violating K.S.A. § 8-1749a(a)(3). United States Supreme Court has held that an officer's subjective reasons for making an arrest "need not be the criminal offense as to which the known facts provide probable cause."
The court's inquiry is "an independent and objective one. Thus an officer's own subjective reason for the arrest is irrelevant, and it does not matter whether the arrestee was later charged with a crime."
Officer Garcia had reasonable suspicion to believe there was a violation of K.S.A. § 8-1749a(a)(3), at the time he stopped the vehicle. The law regarding window tinting applies to all motor vehicles "required to be registered in this state and which [are] operated on the highways of this state." After approaching the vehicle and performing a tint test that demonstrated a potential violation, Officer Garcia had probable cause to believe the occupants were in violation of K.S.A. § 8-1749a(a)(3), which is a misdemeanor.
K.S.A. § 22-2401 sets out law enforcement's general powers of arrest. Subsection (d) authorizes an officer to arrest any person for "any crime" committed in the officer's view. The statute only excludes traffic infractions, and cigarette or tobacco
Additionally, in Virginia v. Moore,
Defendants argue that no one gave consent to the search of the vehicle, there was no valid warrant, and there was no warrant exception. They argue the stop was unreasonably prolonged to allow the drug dog to arrive and perform the sniff; furthermore, it was not a valid search-incident-to-arrest.
The government argues that the drug dog sniff was part of the traffic stop, and he gave a valid alert, therefore, no Fourth
The search-incident-to arrest exception to the warrant requirement is intended to "ensure officer safety and prevent the concealment or destruction of evidence."
In United States v. McCane,
Alternatively, the government argues the drug dog sniff did not implicate the Fourth Amendment because it was a valid part of a lawful seizure. Use of a drug dog to walk around the exterior of a defendant's car does not escalate a traffic stop into a search.
The Court previously found that the duration of the traffic stop was not unreasonable. Because traffic stop escalated into an arrest when Beltran-Palafox was seized,
Both defendants have challenged the reliability of drug dog Rony and have challenged whether he gave a valid alert to drugs inside the vehicle. As discussed below, the Court notes that Elenes-Mombela has not established standing to challenge the search of the car.
The Tenth Circuit has consistently held that "probable cause can be based on alerts by trained dogs."
Such a showing could be made if the dog has a poor accuracy record, if the dog's training was substandard, if the dog's health was in question, or if the circumstances of the search caused the Court to question the dog's reliability.
A district court is required, when the issue is raised, to rule on whether the drug dog is reliable.
Defendants' expert, Steven D. Nicely, submitted a written report, concluding that Rony was not reliable because his training was inadequate to correct problems with lack of motivation, responses to distractors, false alerts, and failures to detect. Nicely reviewed Rony's training and performance records, and speculated as to what would causes a drug dog to give a false alert, concluding that a canine would be motivated to give a false alert if he sought positive reinforcement. Nicely criticizes the handler's records for not indicating when the handler knew the location of the target odor and when he did not, so as to evaluate when "cues" may have been given, and the failure to use terms consistently, such as "alert" and "indicate."
Nicely calculated Rony's "success" rate on the basis of field performance records and noted that, when Rony conducted a search of a vehicle, the probability that drugs would actually be seized was 38.64%. However, the probability that Rony's "alert" would be confirmed by "claimed finds" (those not confirmed by chemical means but corroborated by other evidence), demonstrates a success rate of 72.73%.
The government's expert, Kenneth R. Wallentine, noted that Rony was certified as a team with Deputy Hughes in October 2008 by the Heart of America Police Dog Association ("HAPDA"). They were certified in the detection of the odors of illegal controlled substances. The certification was valid for one year, and HAPDA maintains standards "that are reasonably stringent and are consistent with the principal national and regional police canine associations." Furthermore, Wallentine stated that Rony's regular training regimen "meets or exceeds generally accepted training standards for maintenance of a drug detection dog," Deputy Hughes was "particularly well-qualified to perform drug detection dog odor detection maintenance training," and Hughes maintained very candid records about Rony's performance deficiencies. Although Mr. Wallentine noted problems with the records Deputy Hughes maintained in 2005 and 2006, he interviewed Deputy Hughes and Hughes explained that he received additional instruction on preparing and maintaining records which he incorporated thereafter. In reviewing the two years prior to the December 15, 2008 search, Wallentine determined that Rony was successful in detecting the odor of controlled substances and locating those controlled substances in 91.74% of training exercises.
The Court finds, based on the entire record, Rony was adequately trained, well-certified, and in good health at the time of the search. Rony's records indicate Deputy Hughes and Rony were certified as a team at the time of the search on December 15, 2008. The certification was only 90-days old, at most, and came from an association well-respected in the Midwest. Furthermore, his annual certification between 2003 and 2008 was never revoked. His testing was done with "single blind" tests that are considered a "best practice" by SWGDOG, and he was in good health at the time of the search. Assuming Nicely's
The Court finds that it cannot accurately evaluate a drug dog's reliability on the basis of field records alone. A working environment is not controlled, thus, odors the dog may detect may not be discovered or identified by law enforcement officers.
Although Elenes-Mombela has not established standing to challenge the search of the vehicle in this case, he argues that various entries in Rony's training and field records demonstrate that Rony lacked motivation or failed to identify drugs that were present.
Defendants argue Rony never gave an alert. Because the Court finds there was a valid arrest, the search of the interior of the vehicle was a valid search-incident-to-arrest. Thus, the issue at this point is whether Rony gave any kind of alert to the vehicle.
As noted above, under Tenth Circuit precedent, an alert by a trained narcotics-detecting dog is sufficient to establish probable cause for a search.
Defense counsel argues the dog's alert was indeterminate because he had to circle the vehicle more than once, was "distracted" by a bag of food during the search, and the handler "cued" him to alert. Defendants' expert argues the dog did not alert before it was permitted to enter the vehicle. Nicely speculated that Hughes did not allow Rony to enter the vehicle when Rony initially approached because he did not give an "alert," but merely demonstrated "interest." Nicely specifically noted a particular incident on October 31, 2004 when Deputy Hughes recorded that Rony wanted to enter the vehicle but Hughes was not sure "why" and added the following note: "maybe he just wanted to go in the van and sniff around." In a search on December 25, 2004, the "k9 showed interest on the driver's door. Search of van revealed nothing." Nicely criticizes the handler for not calculating, on a monthly basis, the probability that Rony's response would actually produce drugs.
Nicely reviewed the video of the December 15, 2008 search, and argued that Rony failed to exhibit any behaviors outside the vehicle consistent with having detected a target odor inside the vehicle. More specifically, Rony is not seen giving an "alert" outside the driver's side door where the contraband was located. Furthermore, when the handler opened the driver's side door, Rony rushed into the passenger compartment without sniffing the door panel.
The government argues that Elenes-Mombela left the passenger door open when he exited the vehicle. The first time the handler circled the vehicle, the dog wanted to enter through the passenger door (which the handler called a "change of behavior" and interpreted to mean the interior of the car contained the odor of a controlled substance), but the handler prevented him from entering. Wallentine noted that Hughes' observations would have been sufficient to permit Rony to enter the car and "work toward the source," but Hughes chose to circle the vehicle before doing so. On a second pass around the vehicle, Hughes permitted Rony to enter the open front passenger door and Rony began biting and scratching at the front driver's side seat. When Rony entered the back passenger door, he scratched at the back of the driver's seat. And when Hughes allowed Rony into the driver's side door, Rony again scratched at the driver's seat. Although the drugs were housed in the driver's side door panel, Wallentine noted that the smell may have been strongest in the fabric of the seat cushions only inches from the door. Wallentine testified that he saw no evidence of any "cues" given by Deputy Hughes. The government argues the handler did not orchestrate the dog's entrance into the vehicle, as the front passenger door was already open and the dog chose to enter and scratch/bite at the driver's side seat.
The Court finds that, based on the evidence from the video, the incident report, and Hughes' testimony, Rony gave a valid alert. In his "Incident Detail Report" from December 15, 2008, Hughes stated as follows:
This case is similar to United States v. Parada,
Here, Hughes testified that Rony sought to enter the vehicle the first time they passed the front passenger door, but he restrained him to make a full circle around the outside of the vehicle before allowing him to enter. Defendants' argument that Rony failed to "alert" to the driver's door is without merit. As the Tenth Circuit has previously held, it is not necessary "for the dog to indicate the exact source of that odor."
Nicely testified that he did not believe Rony gave any kind of alert because he did not exhibit signs of interest in the vehicle on the outside that would indicate the presence of contraband on the inside. Nicely's opinions were based on Hughes' written reports and the video tape, which did not capture events inside the vehicle. Rony and Hughes were trained as a team. Furthermore, the Court finds Hughes's testimony was credible and his familiarity with Rony's behavior patterns were of significant probative value. Hughes testified and recorded that he witnessed Rony's behavior change, which he interpreted to mean narcotics were inside the vehicle. Thus, the Court finds that Rony gave an alert outside the vehicle as well as inside the vehicle on December 15, 2009.
The government argues that, even if the drug dog search was unlawful, the drugs would inevitably have been discovered
Generally, in arguing "inevitable discovery," the government may rely on a hypothetical inventory search.
Beltran-Palafox argues the officers should have given Elenes-Mombela the opportunity to call his girlfriend to pick up the vehicle rather than to impound it. The government argues the vehicle was seized because there was probable cause to search its contents on the basis of Rony's alert; alternatively, it argues the vehicle was impounded because both the driver and the passenger had been arrested.
Officers may search a lawfully impounded vehicle pursuant to a departmental policy.
Here, the driver had been lawfully arrested and the passenger lacked a valid driver's license to operate the vehicle. More importantly, after Rony alerted to the vehicle under a lawful search-incident-to-arrest, the officers had probable cause to believe the vehicle contained evidence of drug crimes. Because the vehicle contained evidence of a crime, the officers were not required to consider alternatives to impoundment.
The second step of the analysis is whether the inventory search was conducted pursuant to valid departmental policy setting forth standardized criteria.
Beltran-Palafox has argued that the inventory search in this case was invalid because it was not conducted pursuant to standardized criteria, and there was no indication that the search was intended to protect the officers or the contents of the vehicle. Officer Garcia testified that the Saline County Sheriff's Department had a policy that, whenever a vehicle was impounded, towed, or seized, the vehicle was inventoried and all items inside the vehicle are to be noted on an inventory sheet. But no evidence or exhibits were presented on any policies. Neither Officer Garcia nor Swanson described the policy; instead, they described how they routinely performed such inventory searches. They both testified that they routinely searched vehicles that were impounded, and that
Of course, as analyzed above, officers could lawfully impound and search the vehicle, having probable cause to believe that the vehicle contained evidence of drug crimes, the government has argued Rony's alert to the vehicle established probable cause to justify a thorough search of the vehicle for evidence of drug crimes. Officer Garcia and Deputy Hughes both testified that the temperatures on that day were well below freezing and the vehicle was moved before it was to be searched.
The United States Supreme Court has stated that "the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court's assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with . . ."
Regardless of the classification by the officers in this case, it is without doubt that Officer Swanson's search was justified by probable cause. After Rony gave an alert at the scene of the traffic stop and arrest, the officers had probable cause to search the entire vehicle. The object of the search, drugs, could have been located anywhere within the interior of the vehicle, and was not limited to the area on which the dog alerted. Supreme Court precedent makes clear that once probable cause is established to search a vehicle, that search may, related to the object sought, extend to all parts of the vehicle and all containers therein.
Rather than to search the vehicle in the bitter cold, the vehicle was transported to the police station. Investigator Feldman informed Officer Swanson of the alert to the vehicle, and Swanson testified that he began the search at the driver's door. Within minutes of opening the door, he noticed the control panel on the door was extremely loose such that it could be moved with his fingers, and the panel contained non-factory screws and fresh tool markings, which in his training and experience, was indicative of hidden contraband. The probable cause had not vanished at this point, but more likely had intensified on the basis of new facts. Therefore, the Court need not decide whether the inventory search comported with the department's policies and procedures, for in this case, the search of the door panels was justified on the basis of probable cause.
Elenes-Mombela challenges the initial traffic stop, the subsequent detention, his arrest, and the search of the vehicle. The government argues that Elenes-Mombela lacks standing to challenge the search of the vehicle because he has not shown (1) a reasonable expectation of privacy in the vehicle or its contents, and (2) assuming there was an unlawful detention, he has not shown "but for" causation between the illegality and the subsequent discovery of evidence.
Under Brendlin v. California,
Elenes-Mombela never produced any evidence to demonstrate a reasonable
Furthermore, as noted above, the Court finds that the stop and the detention were lawful. Although Elenes-Mombela challenges his removal from the vehicle, it is well-established that, during a traffic stop, an officer may order the driver and all occupants to exit the vehicle.
As noted above, the search of the vehicle was a valid search-incident-to-arrest, at which point, Elenes-Mombela was asked to exit the vehicle during the drug dog sniff. During this, he was questioned about the driver's identity. When he insisted the driver was "Oscar," the officers arrested him for obstruction. Elenes-Mombela argues the government has not produced any facts showing probable cause for an arrest on this basis.
K.S.A. § 21-3808 states that "[o]bstructing legal process or official duty is knowingly and intentionally obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty."
"Probable cause exists if facts and circumstances within the arresting officer's knowledge and of which he or she has reasonably trustworthy information are
Elenes-Mombela argues that he did not commit any traffic infraction, and there was no evidence that he did not believed the driver was named "Oscar." The only officer from the scene to testify at the suppression hearing was Officer Garcia. He testified that he did not know the individuals in the vehicle or their relationship to each other. Officer Feldman asked questions of Elenes-Mombela in English, but Officer Garcia did not translate. Furthermore, Officer Garcia did not make the decision to arrest Elenes-Mombela. On the video recording, an unidentified officer can be heard repeating "Don't lie to me," and Elenes-Mombela can be heard to answer "Oscar." However, the Court has no other evidence of facts supporting probable cause for an arrest on the basis of "obstruction." Of all the evidence presented at the suppression hearing, the government did not present evidence of what the officers knew, or believed they knew, about these defendants prior to the traffic stop. Beltran-Palafox's driver's license indicated that his name was "Oscar," consistent with Elenes-Mombela's statement. Furthermore, there was no evidence that a positive identification of Beltran-Palafox was made at the scene or at the time of Elenes-Mombela's arrest, such that falsehood might be imputed. If the officers had a factual basis to believe Elenes-Mombela's answer was not merely incorrect, but purposeful deception, the Court was never made aware of it. Officer Garcia testified that Investigator Feldman mentioned something about the nickname "Lordy," but there is no evidence attaching that name to either defendant. Thus, the Court is not in a position to find there was probable cause to believe Elenes-Mombela committed "obstruction" solely on the basis of giving an "incorrect" answer.
Nevertheless, the Court notes that once Rony gave a positive alert to the vehicle, the officers had probable cause to believe a drug crime had been or was being committed, and thus, had probable cause to arrest both Beltran-Palafox and Elenes-Mombela on that basis.
"[A]lthough a defendant may lack the requisite possessory or ownership interest in a vehicle to directly challenge a search of that vehicle, the defendant may nonetheless contest the lawfulness of his own detention and seek to suppress evidence found in the vehicle as the fruit of the [defendant's] illegal detention."
Under the second prong, defendant must show "but for" causation demonstrating "that the evidence sought to be suppressed is a product of his or her unlawful detention."
If defendant is able to make these two showings, then the burden shifts to the government. "[T]he government may avoid suppression by demonstrating that the evidence would have been inevitably discovered, that it was discovered by independent means, or that it was so attenuated from the illegality as to dissipate any taint from the Fourth Amendment violation."
Based on the analysis above, the stop and subsequent detention were justified. Assuming Elenes-Mombela's stop, detention, or arrest was unlawful, he has not shown a factual nexus between that illegality and the evidence that was discovered. The drug dog search of the vehicle was a valid search-incident to Beltran-Palafox's arrest. Once the dog alerted outside and inside the vehicle, there was probable cause to arrest Elenes-Mombela.
Elenes-Mombela must show that the evidence "would never have been found but
Although the parties did not raise this argument, the Court notes that the search was contemporaneous with the arrest. Beltran-Palafox was arrested. Within one-and-a-half minutes, he was placed in the back of the patrol car. One minute later, Officer Garcia removed Elenes-Mombela from the vehicle. And approximately one-and-a-half minutes after that, Deputy Hughes began the search with Rony: a maximum of four minutes total. See United States v. Torres-Castro, 470 F.3d 992, 998 (10th Cir.2006) (finding five to sixty minute separation to be "contemporaneous").
