ORDER GRANTING MOTION TO SUPPRESS AND DISMISS EVIDENCE

CARLTON W. REEVES, District Judge.

The above-styled matter is before the Court on the Motion to Suppress and Dismiss Evidence1 of defendant Jonatan Lopez, who argues that a traffic stop resulting in the discovery of several kilograms of narcotics violated the prohibitions of unreasonable searches and seizures contained in the Fourth Amendment. After reviewing the briefs of both the Government and the defense, along with the testimony and arguments presented at a hearing held on August 26, 2011, the Court has concluded that the motion must be granted.

FACTS2

Sergeant Andy Matuszewski (hereinafter "Matuszewski") of the Lauderdale County Sheriff's Department is a member of that office's Interstate Criminal Interdiction Unit.3 On October 26, 2010, Matuszewski was positioned in his patrol car near the bottom of a large hill between the westbound and eastbound lanes of Interstate 20 at a location just east of Meridian, Mississippi. From that vantage point, Matuszewski could see cars coming over the hill and make early determinations regarding the speeds of the vehicles. His vehicle, however, was not equipped with radar.4

The Traffic Stop. At approximately 4 p.m., a small black sedan caught Matuszewski's attention as it reached his side of the hill and quickly began decelerating. A blue Chevrolet Cobalt immediately followed, and like the black sedan, the Cobalt decelerated immediately after cresting the hill and pulled into the right-hand lane away from the lane nearest Matuszewski, although no other cars were nearby.5 The Cobalt continued slowing down even past Matuszewski's position and eventually settled on a speed of roughly 60 miles per hour.

Matuszewski's interest piqued, he pulled out onto the eastbound6 roadway and caught up with the two cars. He first pulled alongside the blue Cobalt, which was driven by Jonatan Lopez (hereinafter "Lopez"), who is unmistakably Hispanic. Matuszewski testified that as he rode alongside the Cobalt, which still was traveling at approximately 60 miles per hour and within the speed limit,7 he immediately grew suspicious of Lopez because (1.) Lopez "appeared to be very tense" and had both hands on his steering wheel at the 10 o'clock and 2 o'clock positions,8 (2.) Lopez would not turn his head to make eye contact with Matuszewski,9 and (3.) Lopez was "sweating profusely."10

Matuszewski sped ahead to investigate the black sedan to "make sure there wasn't anything suspicious or more [suspicious] than I had already seen,"11 but any suspicions of unlawful activity were assuaged when the occupants—at least one of whom Matuszewski observed to be a white male12—turned their heads in Matuszewski's direction and "glanced at" him.13

Matuszewski then exited the interstate and pulled his patrol car on to the "on" ramp, where he sat and waited for Lopez. According to Matuszewski, "my purpose was to get to the opposite side of this ramp and be able to see the vehicles that went [by. M]y sus[picions] had been raised to this point by the defendant's vehicle and his actions ... based on my experience and training[.]"14 Lopez soon came and went, and Matuszewski pursued him. According to Matuszewski, Lopez had increased his rate of speed since the two had driven alongside each other a few minutes earlier at approximately 60 miles per hour.15

As Matuszewski followed, he observed Lopez trailing another vehicle in the left-hand lane16 before pulling into the right-hand lane in front of an 18-wheeler.17 Matuszewski "found this to be hazardous ... [and] in violation of state statutes," and at that point, Matuszewski initiated a traffic stop by turning on his blue lights.18 More specifically, Matuszewski explained in court that he "observed two violations of state law[,] one of which was that the defendant was following two different vehicles in an unsafe manner entirely too close... and then when he changed lanes back in front of the semi, again didn't indicate his intention to do so[,] and did so at a distance that was very close that could have caused the hazard with the semi[ ]driver."19

At some point practically contemporaneous with the stop's initiation, Matuszewski "ma[de] note of the license plate and enter[ed] that into the mobile dat[a] in my patrol vehicle to make s[ure] there's not any warrants or [that the] vehicle hadn't been involved in some kind of a crime so I'll know what I'm walking up on...."20 The inquiry apparently provided no suggestion of malfeasance.

The First Search. Lopez pulled onto the right-hand shoulder of the roadway, where Matuszewski approached from the passenger side of the vehicle and asked Lopez for his driver's license, the vehicle's registration, and proof of insurance.21 According to Matuszewski, Lopez's hand "was visibly shaking" as he fumbled with the glove compartment, the operation of which Lopez appeared to be unfamiliar, but Lopez ultimately produced three documents: (1.) what appeared to be a driver's license issued in Mexico, (2.) proof of insurance issued in Pennsylvania to a person named Jose Mendoza Rodriguez, and (3.) a copy of a court paper from Cooke County, Illinois.22 As with many of his observations regarding otherwise seemingly innocuous behavior, Matuszewski told the Court that Lopez's apparent nervousness at having been pulled over on the side a four-lane highway is "not what we are accustomed to seeing with the general motoring public."23

By this point, according to Matuszewski, three reasons for suspicion of wrongdoing had presented themselves: a lane change without a signal, following a vehicle too closely, and Lopez's Mexico-issued driver's license.24 A fourth possible basis for suspicion arose from an incongruity in Lopez's account regarding the car's true owner; Matuszewski told the Court that after he asked Lopez to step outside and continue their conversation, Lopez said that his cousin owned the car, whereas "before he had said it was his friend's vehicle."25 Matuszewski also reserved doubts as to whether Lopez's license "was a legitimate document at all."26

After his initial conversation with Lopez, Matuszewski asked Lopez to remain between the two vehicles while Matuszewski returned to his patrol car to "do a records check on the information that[ ] he's provided to me to make s[ure] he's not wanted anywhere [and] to see if he's in the country legally."27 From his patrol car, Matuszewski alerted his two partners that he was conducting a traffic stop and requested their presence; the video also records Matuszewski requesting the assistance of the other officers because "I'm gonna search him."28 About that time, Matuszewski received a response to his inquiry confirming that the car was registered under the same name that appeared on the proof of insurance.

Matuszewski also attempted to contact the Blue Lightning Operations Center29 regarding Lopez's background, but he was unable to reach them.30 He then contacted his local dispatch center to make the same inquiry. So far as the record indicates, none of the sources upon whom Matuszewski inquired provided him with any indication that Lopez was wanted in connection with any crime or that Lopez had entered the country illegally.

The Second Search. Ultimately, some 16 minutes after initiating the traffic stop, Matuszewski emerged from his patrol car and told Lopez that he planned to issue a warning citation.31 By this time, the purpose of the traffic stop had been completed. Immediately thereafter, however, Matuszewski continued the detention by asking Lopez "if there was anything illegal in the vehicle."32 To Matuszewski's surprise, Lopez "nodded and spoke and nodded in the affirmative."33 Matuszewski again asked whether Lopez's car contained anything illegal, and Lopez "said yes and nodded in the affirmative again."34 When Matuszewski "asked him in Spanish if there were any drugs in the vehicle or narcotics[, ...] that's when he said oh, no, no, quickly responded there wasn't anything there and spoke and said that we could check [if] we wanted[.] I asked him ... so you don't mind if we check[?]" Matuszewski understood Lopez to reply, "That's fine."35 Despite this abundantly apparent language barrier, Matuszewski did not use Spanish when asking Lopez for consent to search the car.36

At almost this precise moment, Matuszewski's partners came upon Lopez's car and began a search, which ultimately yielded a discovery of several kilograms of cocaine.37

On March 22, 2011, a federal grand jury indicted Lopez for possession of more than five kilograms of cocaine hydrochloride with intent to distribute.38 Lopez moved to suppress the evidence discovered in the October 2010 search as the fruits of a violation of his rights established by the Fourth Amendment.

ANALYSIS

Less than three years after the most notable of the Nuremberg Trials, wherein he served as chief prosecutor against one of the gravest atrocities ever exacted upon the human race, Justice Robert H. Jackson wrote that the guarantees established by the Fourth Amendment

Moreover, Justice Jackson noted aptly that "the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court."40

This Court cannot overstate the seriousness with which it carries that duty. Whenever a defendant contends that he has fallen victim to an unreasonable search or seizure, this Court does not take lightly its role as the finder of fact41 and will leave no aspect of the police's conduct unscrutinized.42 When the police proceed without the authority of a duly issued and valid warrant, this Court will not hesitate to hold the Government to its responsibility of proving the constitutional validity of its actions.43 And where that burden has not been carried, this Court will unflinchingly fulfill its obligation to preclude the Government from making use of the product of that unconstitutional act.

In the case at hand, Lopez's motion to suppress implicates both of the Fourth Amendment's protections: first, he argues that the traffic stop itself amounted to an unreasonable seizure for lack of probable cause, and second, he contends that the search of his automobile was unreasonable because the police gained his consent involuntarily.

Lopez's Seizure. With regard to Lopez's first argument, there is no doubt that his traffic stop amounted to a seizure.44 Therefore, in order to have been reasonable, it must have been supported at a minimum by "reasonable suspicion supported by articulable facts that criminal activity may be afoot."45 "[A]n unparticularized suspicion or hunch"46 will not suffice. "This demand for specificity in the information upon which police action is predicated is the central teaching of th[e] [Supreme] Court's Fourth Amendment jurisprudence."47

This Court has little difficulty in determining, as a matter of fact, that the totality of the circumstances preceding Lopez's traffic indiscretions did not create an objectively reasonable suspicion justifying a stop. Matuszewski testified that, upon cresting the hill and first coming into view, Lopez's sudden deceleration and lane change was "different than what I'm used to seeing from the normal motoring public so it caught my attention."48 Of course, the black sedan in front of Lopez exhibited the same behavior, but when that car's white driver and passenger glanced in Matuszewski's direction, all suspicion of wrongdoing evaporated.49 Therefore, the only differences in Lopez's behavior prior to Matuszewski's exit from the roadway were (1.) Lopez's use of two hands at the 10 o'clock and 2 o'clock positions on his steering wheel, (2.) Lopez's unbroken attention toward the road in front of him, and (3.) the great volume of sweat pouring down Lopez's face, toward the account of which this Court harbors doubts.50

All other skepticism aside, these circumstances amount at most to unparticularized suspicion and would not have justified a stop. The matter concerning Lopez's hands strikes this Court as particularly outlandish.51 Undoubtedly, the Fourth Amendment "allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person."52 But even so, "an officer's reliance on a mere `hunch' is insufficient to justify a stop."53 The suggestion that criminal activity might be evinced by the placement of a driver's hands on a steering wheel which is within the position that the state recommends— and, indeed follows the safe driving tip— is, with all due deference to experience and training, nothing short of preposterous.54 At best, it amounts to the sort of "hunch" that has been repeatedly rejected by the Supreme Court as a basis for even a temporary detention.

At worst, it is what Lopez's attorney argues: a pretext for a racially motivated police action. In his brief submitted after the August 26 hearing, Lopez contends that Matuszewski targeted Lopez over the other car's white driver because of Lopez's race55 and that, like all government decisions made on the basis of race, the traffic stop must be subjected to strict scrutiny.56 If Matuszewski had stopped Lopez after his initial observations, then this Court would not hesitate to agree with Lopez.57

However, the Supreme Court has made clear that the constitutional reasonableness of a traffic stop does not hinge on "the actual motivations of the individual officers involved," and so long as probable cause exists to believe that a traffic violation has occurred, the true reason for which the officer initiated the seizure is irrelevant.58 This Court has reviewed the video recording of the lane change on which Matuszewski based the stop and is satisfied that it created probable cause to believe that a traffic violation had occurred.59 With that established, the question of whether Matuszewski already had decided to pull Lopez over is less relevant. Lopez's lane change opened the door to a permissible stop, and when Matuszewski walked through it, he inflicted no injury to Lopez's Fourth Amendment rights.

The Search Attendant to Lopez's Traffic Stop. Moreover, Matuszewski's actions in the moments immediately following the stop did not amount to an unconstitutional search. The Fifth Circuit has held that an officer conducting a traffic stop may "request to examine a driver's license and vehicle registration or rental papers ... and to run a computer check on both. An officer may also ask about the purpose and itinerary of a driver's trip during the stop,"60 because "[a]ll these inquiries are within the scope of investigation attendant to the traffic stop."61

But when Matuszewski's efforts turned up no probable cause to believe that Lopez was involved in other criminal acts, no reason existed to extend the stop beyond its purported purpose.62 Therefore, the ensuing search of Lopez's car could not have been related to the stop itself, as the Government seems to suggest.63 The only objectively reasonable basis for the stop was Lopez's traffic infraction, and based on its review of the record, the Court finds that neither reasonable suspicion nor probable cause permitted any additional extension of the seizure. For that reason, the only possible reason to justify the police's search of Lopez's car was his consent.

The "Consent" Search. It is well established that consent serves as an exception to the Fourth Amendment's requirement that searches be supported by warrants.64 But "[i]n relying upon the consensual search exception, the government must prove, by a preponderance of the evidence, that consent was freely and voluntarily given."65 Consent is not voluntary if it "was the product of duress or coercion, express or implied,"66 and the Government's burden "is not satisfied by showing a mere submission to a claim of lawful authority."67 Moreover, the question of whether consent was voluntary is an issue of fact.68

"Although ... no single factor is dispositive or controlling,"69 the Fifth Circuit has identified six issues to be considered by courts evaluating the voluntariness of an act of consent:

The Court has reviewed the record before it, has considered the evidence contained therein as thoughtfully as it knows how, and has assigned particular facets of the record their due weight in accordance with the Court's duty as the arbiter of fact. Within that role, the Court is compelled to find that the Government has not fulfilled its obligation to prove that Lopez's consent was voluntary.

The Court is convinced beyond any doubt that the first and fifth factors weigh against the Government. Although Lopez had not been arrested formally when Matuszewski initially sought his consent, a reasonable person in Lopez's position would have perceived "the degree of restraint associated with formal arrest;"71 by the time Lopez acquiesced to a search, his traffic stop had reached almost 20 minutes in length, and he had not yet received the citation he had been promised. Matuszewski also had not yet returned the driver's license to Lopez. Moreover, Matuszewski himself testified on cross-examination that when he told Lopez that he planned to issue a warning, "I didn't say [tha]t it would all be over."72

Additionally, the Government has introduced no specific evidence regarding Lopez's education and intelligence, and because it bears the burden of proof on this question,73 the Court would be obligated to view a void of evidence in Lopez's favor. But what evidence does exist leads this Court to conclude that the consent was not intelligently given; the dialogue between Lopez and Matuszewski clearly suffered from a language barrier, as evinced by Lopez's two "confessions" that his car contained illegal items.74 That language barrier inhibited Lopez's ability to act knowingly and intelligently—two necessary components of a valid consent.75

Other factors also do not fall to the Government's side of the debate. In particular, the timing of the consent presents the hint of coercion. When Matuszewski returned from his patrol car and told Lopez that he planned only to issue a warning citation, he immediately segued into conversation designed to elicit consent to search. Although far from the most overt example of coercion in the annals of Fourth Amendment jurisprudence, the subtle implication was that Lopez's consent would brush away any remaining threat of a formal arrest.76 Likewise, the extent and level of Lopez's cooperation with Matuszewski was not, in this Court's evaluation, so backward-bending and eager as to support a finding of voluntariness. Lopez complied with Matuszewski's order to pull the vehicle to the side of the road, provided documents in response to Matuszewski's inquiry, and answered Matuszewski's questions. By way of contrast, the Fifth Circuit once affirmed as voluntarily given the consent of a defendant who used screwdrivers to help the police remove interior panels of own his car, a search of which ultimately yielded narcotics.77 But even when not matched against such voracity, Lopez's compliance with Matuszewski's requests did not rise to an extent and level of cooperation that would support a finding of voluntariness.

In the view of this Court, Lopez's apparent difficulty with the English language hobbles the Government's effort to show that his consent was voluntary.78 The Government's arguments to the contrary lack punch. When Matuszewski asked in English whether Lopez's car contained illegal substances, Lopez cheerfully nodded and answered affirmatively—twice. But when Matuszewski repeated the question in Lopez's native language, the answer changed with enormous emphasis. For whatever reason, Matuszewski—who testified that he is versed in Spanish phrases relevant to his profession79—saw no need to confirm Lopez's consent in the only language that Lopez clearly understood.80 The doubt created by this omission, together with the bulk of the other factors weighing against the Government, is too great to support a finding of voluntariness.81

Therefore, judging all of the circumstances of this unique case,82 as this Court is bound to do, the preponderance of the evidence does not persuade the Court that Lopez's consent was voluntary in character.83

CONCLUSION

This Court is not oblivious to two of the final points made by the Government at the hearing held on this matter.

The Government solicited Matuszewski's strong—and informed—belief that Interstate 20 is a frequent channel of illegal narcotics. Given the nature of his tenure and the character of his work, the conclusion is perhaps beyond reproach. But far more people use the interstate system on a daily basis for legitimate reasons.

The Fourth Amendment would not sanction police to move upon a neighborhood victimized by crime and to begin rounding up its inhabitants simply because they were found in an area frequented by criminals. The fact that similar people in similar places have acted illegally will not satisfy the Constitution's demand that every situation be judged by its unique facts and circumstances.

Likewise, the Court is not ignorant to the fact that the search of Lopez's car ultimately yielded several kilograms of cocaine. This is no reason to overlook an unconstitutional invasion of a person's privacy. As Justice Jackson wrote, courts overseeing criminal prosecutions only address a Fourth Amendment question "where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. If the officers raid a home, an office, or stop and search an automobile but find nothing incriminating, this invasion of the personal liberty of the innocent too often finds no practical redress."84 But "[c]ourts can protect the innocent against such invasions indirectly and through the medium of excluding evidence obtained against those who frequently are guilty."85

The Government, through its well meaning law enforcement officials, "has a compelling interest in eliminating the flow of illegal drugs into our society ... [b]ut all things are not permissible even in the pursuit of a compelling state interest. The Constitution does not cease to exist merely because the government's interest is compelling."86 Like those well meaning law enforcement officials, this Court has a responsibility: to ensure that constitutional protections are not deprived by the whims and suspicions of those same well meaning law enforcement officials.

The Supreme Court explained fifty years ago that under our criminal justice system, where fealty to the Constitution trumps all other concerns, "[t]he criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."87

If Lopez is indeed guilty of the crime for which he stands indicted, then fidelity to the Fourth Amendment demands that the Government prove it without the products of its unreasonable search. As Justice Scalia has counseled, "there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all."88

Lopez's Motion to Suppress and Dismiss Evidence is granted.

ORDER DENYING MOTION TO RECONSIDER

In light of this Court's decision on September 21, 2011, to suppress evidence procured at a traffic stop,1 the United States has moved for reconsideration.2 But because a review of governing authority leaves this Court confident that its announced ruling was the correct one, the Government's latest motion is denied.

The facts relevant to the matter at hand are recounted at length in the aforementioned Order,3 but generally speaking, Jonatan Lopez (hereinafter "Lopez") was arrested and charged with possession of cocaine after officers with the Lauderdale County Sheriff's Department stopped him on Interstate 20 and discovered the contraband in the blue Chevrolet Cobalt driven by Lopez. After Lopez's indictment, the defense moved for suppression of that evidence on the basis of a violation of the Fourth Amendment,4 and following a hearing, the Court granted that motion upon concluding that Lopez had not consented voluntarily to police requests to search the Cobalt.

Although the Court agrees that a district judge may reconsider decisions rendered in criminal cases,5 the Government has not offered a persuasive argument in favor of such action. Motions for reconsideration serve a "narrow purpose."6 Such requests are often made, but granting the relief is rare, as it is an "extraordinary remedy [and] should be used sparingly."7 Federal courts recognize

Motions for reconsideration are not to be used to relitigate old matters or to present evidence that could have been raised prior to entry of judgment.9 "Whatever may be the purpose of [a motion for reconsideration] it should not be supposed that it is intended to give an unhappy litigant one additional chance to sway the judge."10

The Government suggests neither that an intervening change in controlling law has occurred nor that the Court has committed a clear error of law; instead, it rests its motion entirely on a reevaluation of the evidence, which it likewise invites the Court to reexamine.

But the videotape and testimony at issue already have been considered by the Court, and other evidence offered in conjunction with the motion to reconsider— such as an affidavit from a second officer at the scene of Lopez's arrest11—was not unavailable to the Government prior to the entry of the September 21 Order. If the Government believed that such evidence would have been helpful to its cause, then it should have adduced that testimony before the Court rendered its decision.12 The Government's "reconsideration" of its tactical decision not to call Officer Swanner, who was present at the suppression hearing, does not justify giving it a "second bite at the apple."13 The Court appreciates the Government's different view of the evidence, but none of the proof now within the record was unavailable prior to September 21.

Furthermore, even if the Court were inclined to review the merits of its decision in light of the Government's newly polished and more refined arguments, the factual determination at the heart of the Order would not change.14 The Government has offered no persuasive explanation for Lopez's "admission" that his car carried anything illegal,15 and as a finding of fact, this Court remains unable to conceive an explanation other than a fundamental language barrier.16 Likewise, other crucial aspects of the Government's motion are uncompelling; for example, as to the Court's factual finding that Lopez's education and intelligence did not support a finding of voluntary consent, the Government argues that Lopez's mere possession of a cellular telephone demonstrates an acumen unduly underestimated. Suffice it to say that this argument is not well taken.17

These are far from the only shortcomings contained within the motion, but ultimately, they need not be addressed one by one. The Government's arguments rest on evidence that was not unavailable prior to entry of the September 21 Order, and even so, they are not sufficiently compelling to sway the Court from its finding of fact that Lopez did not consent voluntarily to police requests to search his car.

The Motion to Reconsider Suppression Ruling is denied.