BRIAN A. JACKSON, CHIEF JUDGE.
Before the Court is a motion to suppress evidence filed by Jose Bastardo-Villanueva ("Defendant"). (Doc. 23). The United States of America has filed a response. (Doc. 24). The Court held a hearing on
This matter arises from a routine traffic stop of a vehicle operated by Defendant. At approximately 3:16 a.m. on September 3, 2015, Officer Graham pulled over Defendant for veering outside his lane and following another vehicle too closely. Defendant was the sole occupant of the vehicle. Officer Graham was patrolling with his drug canine, Mylo, at the time of the stop, and he was not with another officer.
At approximately 3:17 a.m., Officer Graham approached Defendant's passenger window to request his driver's license and vehicle information. Defendant handed over his Pennsylvania issued driver's license and a copy of a rental agreement for the vehicle. Officer Graham testified that Defendant appeared nervous during this initial encounter. Specifically, Officer Graham testified that Defendant's breathing was elevated and his hand was shaking, which caused him to drop his driver's license as he was attempting to hand it over to the officer. Officer Graham later testified that he did not notice this nervous behavior during the remainder of the stop.
Upon receiving this information, Officer Graham told Defendant to exit his vehicle and stand behind it. At approximately 3:18 a.m., Officer Graham began to question Defendant about his travel itinerary and the length of time he had been on the road.
At approximately 3:20 a.m., Officer Graham returned to his cruiser to enter into his computer Defendant's license and vehicle information to run a routine search.
At 3:30 a.m., Officer Graham exited his vehicle and told Defendant "it's going to be a few more minutes." Officer Graham then asked Defendant additional questions about his time in Houston. Sergeant Hale arrived on the scene at approximately 3:31 a.m. After Sergeant Hale arrived, Officer Graham began to conduct a canine search at approximately 3:32 a.m. Officer Graham testified that he decided to conduct a canine search in light of Defendant's atypical travel itinerary and his suspicion that Defendant's vehicle may be stolen.
Within moments of beginning the search, Mylo signaled a positive alert for the presence of narcotics. Officer Graham then obtained consent to search Defendant's vehicle. Officer Graham and Sergeant Hale found approximately 2.4 pounds of cocaine in the vehicle's bumper. The vehicle was subsequently searched pursuant to a search warrant. This search resulted in the discovery of an additional 4.7 pounds of cocaine. On December 16, 2015, a federal grand jury returned a one-count indictment charging Defendant with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1).
Defendant argues that his stop was prolonged beyond the time necessary for Officer Graham to issue any traffic citation and to run a computer search of his license
In response, the United States urges that the canine search of Defendant's vehicle "occurred during a legitimate traffic stop and did not prolong the time necessary to conduct the tasks related to the original purpose of the stop." (Doc. 24 at p. 4). The United States indicated that it would "prove at a hearing on the defendant's motion that the search was justified and that his motion should be denied." Thus, the United States made clear its intent to rely on the video of Defendant's stop and the testimony of Officer Graham to develop the factual circumstances justifying the contested canine search.
As a preliminary matter, Defendant does not challenge the lawfulness of his initial stop.
In Rodriguez, the United States Supreme Court held that "a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures." Rodriguez, 135 S.Ct. at 1612. To evaluate the lawfulness of canine searches during routine traffic stops, the Supreme Court instructed that "[t]he critical question ... is not whether the dog sniff occurs before or after the officer issues a ticket ... but whether conducting the sniff `prolongs' — i.e., adds time to — the stop.'" Id. at 1616 (citations omitted).
The Court in Rodriguez concluded that a canine search of a vehicle during a routine traffic stop is unlawful when it prolongs the stop beyond the time necessary for an officer to conduct certain inquiries and issue a ticket, unless reasonable suspicion of criminal activity distinct from the traffic offense is developed that is "ordinarily demanded to justify detaining an individual." Id. at 1614-15 (citation omitted); see also U.S. v. Pena-Gonzalez, 618 Fed.Appx. 195, 198 (5th Cir.2015) (quoting U.S. v. Fishel, 467 F.3d 855, 857 (5th Cir. 2006)) (interpreting Rodriguez and holding that officers are allowed to "examine the driver's license and vehicle registration... [and] ask about the purpose and itinerary of the driver's trip"). "Typically such inquiries involve checking the driver's license, determining whether there are out-standing warrants against the driver, and inspecting the automobile's registration and proof of insurance." Rodriguez, 135 S.Ct. at 1615 (citations omitted).
The Supreme Court stated that its holding in Rodriguez is supported by precedent set forth in Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) and Arizona v. Johnson, 555 U.S. 323,
In Caballes, an officer stopped a driver for speeding. Id. at 406, 125 S.Ct. 834. While the officer who effectuated the stop was in the process of writing the driver a ticket, another officer conducted a canine search of the outside of the driver's vehicle. Id. at 406-407, 125 S.Ct. 834. The Supreme Court held that "[a] dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." Id. at 410, 125 S.Ct. 834. In cautionary language expanded upon in Rodriguez, the Supreme Court also stated that "[a] seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Id. at 407, 125 S.Ct. 834.
The United States did not elicit testimony during the hearing indicating the time typically required to run the computer search conducted by Officer Graham. Although Officer Graham testified credibly that he ran Mylo while he awaited results of his routine computer search, he also testified that his computer search was prolonged by system malfunctions. He later testified that he does not know if he ever obtained the information he sought, that it is not unusual for the computer system to malfunction, and that the system has difficulty processing certain out of state licenses.
The United States asks the Court to find that Defendant's stop was not prolonged by the canine search, because Officer Graham had yet to get the results of his routine computer search. Such a finding invites the Court to speculate whether Officer Graham could have ascertained the information he sought more quickly if he had remained in his vehicle to trouble shoot any difficulties he encountered. Likewise, the argument of the United States invites the Court to speculate whether a canine search during a routine traffic stop is permissible during a delay caused by malfunctioning police equipment. Without more information, the Court pretermits making a finding on this issue. The Court has sufficient information, however, to find that Officer Graham had reasonable suspicion of criminal activity to justify any brief delay the canine search of Defendant's vehicle may have caused.
The analysis for determining the existence of reasonable suspicion was succinctly set forth in U.S. v. Spears, 636 Fed. Appx. 893, 897 (5th Cir.2016): Reasonable suspicion exists when the detaining officer can point to specific and articulable facts that, when taken together with rational inferences from those facts, reasonably warrant the ... seizure. Although an officer's reliance on a mere hunch is insufficient to justify a
(quotations and citations omitted).
Officer Graham has been an officer assigned to the canine division of the East Baton Rouge Parish Sheriff's Office for twelve years.
After carefully considering all of the evidence in context, including Officer Graham's testimony and the video and audio recording of the traffic stop, the Court finds that reasonable suspicion of criminal activity developed during Defendant's stop to justify an extension of the encounter. Thus, assuming arguendo that the contested canine search resulted in an extension of time otherwise needed to complete Defendant's traffic stop, it nonetheless did not violate the Fourth Amendment. See Rodriguez, 135 S.Ct. at 1615. The fifteen minute period between Defendant's initial stop and the contested canine search was not unreasonably long given Officer Graham's early formation of reasonable suspicion of criminal activity. See U.S. v. Pack, 612 F.3d 341, 345 — 46 (5th Cir.2010), modified on denial of reh'g, 622 F.3d 383 (5th Cir.2010) (reasonable suspicion of criminal activity developed after the initial stop justified a 35 minute stop). This is not a case where the officer who effectuated the stop had to wait for a canine to be brought to the scene once reasonable suspicion of criminal activity was formed. See Spears, 636 Fed.Appx. at 905 (Costa, J., concurring) (noting that "[t]here is a vast difference between a situation in which a canine has already arrived and one in which a canine has not even been located. In the
Mylo's positive alert for the presence of narcotics gave Officer Graham probable cause to search Defendant's vehicle, irrespective of any consent Defendant subsequently gave. See U.S. v. Sanchez-Pena, 336 F.3d 431, 444 (5th Cir.2003) (recognizing that an alert by a drug-detecting dog provides probable cause to search an automobile). For this reason, the Court need not address the issue of consent.
Officer Graham was justified in pulling over Defendant. Officer Graham developed reasonable suspicion of criminal activity while he was carrying out the mission of the traffic stop. The canine search of Defendant's vehicle did not unreasonably prolong Defendant's stop in light of Officer Graham's reasonable suspicion that Defendant was engaged in criminal activity. For these reasons, Defendant's motion to suppress (Doc. 23) is