U.S. v. Valdez Leal, CRIM. 3:04-28J.

385 F.Supp.2d 540

UNITED STATES of America v. Robert VALDEZ LEAL, Defendant.

No. CRIM. 3:04-28J.

United States District Court, W.D. Pennsylvania.

August 29, 2005.

Marketa Sims, Federal Public Defender's Office, Pittsburgh, PA, for Defendant.

John J. Valkovci, Jr., U.S. Attorneys, Johnstown, PA, for Plaintiff.

MEMORANDUM OPINION AND ORDER

GIBSON, District Judge.

SYNOPSIS and FINDINGS OF FACT

This case comes before the Court on Robert Valdez Leal's (hereinafter "Defendant") Motion for Discovery and to Suppress Evidence (Doc. No. 19). Upon consideration of Defendant's motion, the Response by the United States of America (Doc. No. 22), and a hearing on Defendant's motion (Doc. Nos. 31 & 32), the Court makes the following Findings of Fact:

1. On February 2, 2004, the Defendant was driving his Chevrolet Blazer in Somerset County, Pennsylvania east on Interstate 76 toward Philadelphia, Pennsylvania.

2. On the same date, State Police Officer Michael J. Volk (hereinafter "Officer Volk") was performing a routine patrol along Interstate 76 in an unmarked police vehicle. Officer Volk observed that the Defendant's Chevrolet Blazer was in violation of 75 Pa.C.S. § 4524 of the Vehicle Code.¹ At approximately 1:30 p.m., Officer Volk stopped the Defendant for the window tint violation. At the time of the stop, Officer Volk had no reason to suspect that the Defendant was engaged in any other illegal activity.

3. Officer Volk observed that the driver's side window did not roll down, and the Defendant had to open the driver's side door to communicate with Officer Volk.

4. Upon Officer Volk's request for the Defendant's driver's license and vehicle registration information, the Defendant produced the following documents: (1) a driver's license; (2) a document from State Farm Life Insurance Company, one side of which states that the name of the insured is Victor Bennet, and on the reverse side of the document is a receipt of payment dated May 9, 2003 for $205.68 for a multicar insurance policy; (3) an insurance cancellation notice with the Defendant's name and a description of the 1992 Chevrolet Blazer which the Defendant was operating at the time of the traffic stop; (4) three Texas insurance liability cards for the 1992 Chevrolet Blazer; and (5) a State Farm Insurance Company's receipt of payment for $205.00 dated December 1, 2003 for a multicar insurance policy.

5. A second state police officer arrived at the scene during the traffic stop of the Defendant Using the computer inside of the second officer's police vehicle, Officer Volk performed the following routine checks: (1) whether the registration of the Defendant's vehicle was valid; (2) whether there were any outstanding warrants on the vehicle; and (3) whether the Defendant had a criminal history. Officer Volk also performed checks using his department issued cellular telephone.² He contacted the El Paso Intelligence Center (hereinafter "EPIC") to determine whether the vehicle operated by the Defendant had been involved with drug activity or border crossings. Officer Volk also checked whether the Defendant had been involved in criminal conduct or drug activity, border crossings, international flights, or other similar conduct.

6. Officer Volk learned that the vehicle was registered to Maria Leal, who resided at the same Brownsville, Texas address that the Defendant provided. Officer Volk also learned that the Defendant had a felony conviction in the year 2000 in Texas for illegal expenditures and investing drug money. Furthermore, the vehicle operated by the Defendant had crossed the border from the United States into Mexico on January 27, 2004, approximately six days prior to the instant traffic stop. Officer Volk testified that the duration of the computer and telephone check lasted about ten minutes. During this time, Officer Volk proceeded to prepare a written warning for the window tint violation.

7. After Officer Volk received the above listed information, he returned to the Chevrolet Blazer to speak with the Defendant. Officer Volk asked the Defendant questions regarding the expiration of Defendant's automobile insurance, and whether any other person had recently driven the Chevrolet Blazer. Consequently, the Defendant explained that he did not know why his insurance was expired, and that no other person had driven the Chevrolet Blazer for at least six months.

8. Officer Volk also asked the Defendant whether he had been in trouble with the law before, or if he had ever been arrested and fingerprinted. The Defendant responded that he had never been in trouble with the law, and he had never been fingerprinted.

9. Next, Officer Volk questioned the Defendant regarding his last trip outside of the United States. The Defendant stated that he had not been outside of the United States for at least two weeks.

10. Officer Volk then asked the Defendant about his destination and travel plans on February 2, 2004. The Defendant answered that he was traveling to Columbus, Ohio. However, noting that the Defendant was traveling eastbound on the Pennsylvania turnpike, Officer Volk indicated to the Defendant that he had missed Columbus, Ohio which was located several hundred miles to the west of the location of the traffic stop.

11. The Defendant explained to Officer Volk that he was driving to Philadelphia, Pennsylvania to visit cousins who resided there. The Defendant identified for Officer Volk specific street names and locations that he would be traveling to in Philadelphia. After his visit to Philadelphia, the Defendant stated that he intended to travel to Columbus, Ohio to pick up his ill uncle and take him to Brownsville, Texas for the winter to alleviate a medical condition.

12. During his conversation with the Defendant about his travel plans, Officer Volk testified that they were standing outside of the Chevrolet Blazer; however the door to the vehicle remained open. Officer Volk noticed a strong scent of air fresheners emanating from the Blazer, and he observed two cellular telephones on the seat of the Blazer.

13. Throughout their conversation, Officer Volk observed that the Defendant's demeanor remained calm. Officer Volk asked the Defendant to step to the rear of the vehicle while they continued their conversation. In response to Officer Volk's request, the Defendant removed the keys from the ignition, locked the doors to the Blazer, and placed the keys in his pocket.

14. Officer Volk explained to the Defendant that the tint of the windows violated Pennsylvania law. The Defendant stated that once he arrived in Philadelphia, his uncle would help him remove the window tint.

15. Officer Volk testified that the Defendant explained he was driving to Philadelphia on that day, and then he would return to Columbus the next morning to pick up his uncle prior to returning to Texas. The Defendant stated that after he returned to Brownsville, Texas, he would straighten out the problem with the insurance documents.

16. Officer Volk asked the Defendant what his employment was in Brownsville, Texas. The Defendant stated that he was a carpenter with his cousin; however, Officer Volk observed that the Defendant's hands appeared uncut and manicured.

17. When their conversation concluded, Officer Volk returned the Defendant's documents to him, and he issued the Defendant a warning for the window tint violation. Then, Officer Volk told the Defendant that he was free to leave.

18. As the Defendant turned and walked toward the front of the Blazer, Officer Volk asked the Defendant if he would mind answering one additional question. The Defendant responded that he would answer the question.

19. Officer Volk asked the Defendant for permission to look inside the Chevrolet Blazer. However, the Defendant responded that he did not want Officer Volk to look in the vehicle. The Defendant then appeared to become agitated, stating that the only reason Officer Volk wanted to search the vehicle is because the Defendant is a Hispanic American. Furthermore, the Defendant claimed that he had consulted with an attorney prior to his trip to Pennsylvania, and the attorney advised him not to permit a search of his vehicle.

20. As the Defendant proceeded to admonish Officer Volk for alleged racial profiling, the Defendant grew more agitated. At that point, Officer Volk told the Defendant that he was going to detain him pending further investigation. Furthermore, Officer Volk stated that he was going to request that a drug detection canine be deployed to the scene.

21. Officer Volk explained to the Defendant that he believed that there was criminal activity afoot, and he was going to further his investigation by calling for a drug dog.

22. Officer Volk testified that approximately fifteen minutes elapsed between the time he initiated the traffic stop and the time he called for Trooper Robert Johnson³ (hereinafter "Trooper Johnson") to respond to the scene with his canine. While waiting in his unmarked vehicle, Officer Volk received confirmation that Trooper Johnson was en route to Officer Volk's location.

23. After approximately forty-five minutes to one hour later, Trooper Johnson arrived at the scene of the traffic stop. Trooper Johnson testified that his arrival at the scene was delayed due to construction and traffic on the Pennsylvania Turnpike between the New Stanton entrance and mile marker 124 where Officer Volk was waiting. Furthermore, Trooper Johnson was the only available canine unit in the Somerset County area on February 2, 2004.

24. While waiting for Trooper Johnson to arrive with the canine, the Defendant remained inside of the vehicle reading a newspaper and making telephone calls. Officer Volk remained inside of his unmarked vehicle drafting an affidavit of probable cause for a search warrant.

25. Once Trooper Johnson arrived at the scene of the traffic stop, he reported to Officer Volk to determine what should be done. Officer Volk explained that he wanted...