United States v. Garth

551 F.Supp.3d 1245

UNITED STATES of America, Plaintiff,

v.James GARTH, Barbara Wilmoth, Defendants.

Case No. 2:20-cr-00272-DBB

United States District Court, D. Utah.

Signed July 28, 2021

Cameron Warner, Assistant US Attorney, Vernon G. Stejskal, Assistant US Attorney, US Attorney's Office, Salt Lake City, UT, for Plaintiff.

Richard G. Sorenson, Public Defender, Federal Public Defender District of Utah, Salt Lake City, UT, for Defendant James Garth.

Mark J. Gregersen, Mark J. Gregersen Attorney at Law PC, Salt Lake City, UT, for Defendant Barbara Wilmoth.

MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS’ MOTION TO SUPPRESS

David Barlow, United States District Judge

Before the court are Defendant James Garth's ("Mr. Garth") and Defendant Barbara Wilmoth's ("Ms. Wilmoth") Motions to Suppress.¹ On April 14, 2021, the court conducted an evidentiary hearing on the motion.² On July 8, 2021, the court heard oral argument on the motion.³ After thorough review and consideration of the memoranda submitted by the parties, the testimony and evidence presented at the evidentiary hearing, and the oral argument presented by counsel, the court renders the following Memorandum Decision and Order.

FINDINGS OF FACT⁴

This case involved a traffic stop that was part of a traffic enforcement interdiction project on Interstate 80.⁵ On August 11, 2020, Trooper Jenson was positioned near mile marker 65 and facing west as he saw a silver pickup truck traveling eastbound.⁶ The truck was pulling a flatbed trailer which held a BMW car; the BMW was topped with a plastic tote.⁷ None of the vehicles had license plates.⁸ Jensen estimated that the truck was traveling at 90 miles per hour ("MPH"), where the speed limit was 80 MPH.⁹ His radar unit indicated 89 MPH.¹⁰ At this point, Jensen turned his vehicle around, flipped on his lights, and effectuated a traffic stop of the speeding pickup truck.¹¹

At 9:44 a.m.,¹² Trooper Jenson approached the truck on the passenger side.¹³ Inside he saw two people: a female in the driver's seat (later identified as Defendant Barbara Wilmoth) and a male in the passenger seat (later identified as Defendant James Garth).¹⁴

At 9:45 a.m., Ms. Wilmoth produced her driver's license.¹⁵ While taking down Ms. Wilmoth's information, Trooper Jenson paused to ask who owned the truck.¹⁶ Mr. Garth said that it belonged to his friend Tim, who was in the process of registering it in Oregon, but that there was a backlog due to COVID-19.¹⁷

At 9:46 a.m., while writing down Ms. Wilmoth's information, Jensen asked if the California address on Wilmoth's license was current; she said, "yes."¹⁸ Jensen then asked about their destination and purpose of travel.¹⁹ Mr. Garth explained that they were going to Salt Lake City to deliver the BMW on the trailer, and that the trailer belonged to him but was not registered.²⁰ Jensen then asked for proof of insurance for the truck.²¹

At 9:47 a.m., while Garth looked for paperwork, Jensen asked Ms. Wilmoth if she was aware of her speed.²² Wilmoth said it was just below 90 MPH; Jensen confirmed it was 89 MPH.²³ Jensen later testified that the lack of license plates alone would have justified the stop.²⁴

At 9:48 a.m., Mr. Garth provided proof of insurance on the truck.²⁵ The insurance for the truck was current; Trooper Jensen wrote down the VIN that was printed thereon.²⁶

At 9:49 a.m., Jensen asked, "if you guys live in California, how'd you get his truck in Oregon?"²⁷ Garth said that "he went and got it for a job."²⁸ Garth explained that he could not find paperwork for the BMW, but said he had a title for it.²⁹ Garth provided Jensen with his driver's license, which Jensen copied down on his notepad.³⁰

At 9:50 a.m., Jensen asked where in Salt Lake they were delivering the BMW.³¹ Garth replied that he "hadn't pulled the address up yet."³² Jensen testified that he found this suspicious since they were less than an hour away from Salt Lake City.³³ At this point, Jensen thought he might "have a possible stolen vehicle."³⁴ He also took note of the plastic tote on the roof of the BMW because in the past he had seized contraband from such cargo carriers.³⁵ At 9:50:17 a.m., Garth began searching for the address in his phone,³⁶ sitting back and holding the phone at an angle that Jensen would not be able to see.³⁷ At 9:52:36 a.m., over two minutes later, Garth produced an address: "1748 D Street South Tahoe."³⁸ Jensen believed this was a false address because of how long it took to find and because Jensen believed a normal Utah address would be something more like "1748 North, South, East, West D Street," reflecting Utah's grid-like system.³⁹ This raised Jensen's suspicion, and indicated that "they didn't want me to know their destination."⁴⁰

At 9:53 a.m., Trooper Jensen returned to his patrol vehicle.⁴¹ At 9:57 a.m., Jensen requested a driver's license check for Mr. Garth, which returned valid at 9:59 a.m.⁴² At 10:01 a.m., Jensen returned to the truck to confirm its VIN.⁴³ Jensen also asked Mr. Garth again who owned the truck.⁴⁴ Garth again provided a name and a phone number.⁴⁵ Jensen informed Garth that the truck was not in the process of being registered, based on his query.⁴⁶

At 10:04 a.m., Jensen returned to his patrol vehicle,⁴⁷ ran the VIN a second time, and then completed a citation for Ms. Wilmoth.⁴⁸ At 10:09 a.m., Jensen printed the citation, returned to the truck, and explained to Ms. Wilmoth that he was citing her for speeding and a vehicle registration violation.⁴⁹

At 10:10 a.m., Jensen resumed questioning Garth about the BMW before handing the citation to Wilmoth at 10:11 a.m.⁵⁰ Jensen testified he extended the detention "[t]o make sure that the BMW was not stolen," and agreed "that is the intent to try and gain reasonable suspicion."⁵¹ Jensen asked who owned the BMW and whether he had access to the plastic tote on top of the BMW.⁵² Garth said it did not belong to him, it was going to a business, and that he did not have keys to the tote or the car.⁵³ Jensen responded, "let's go back and look at the car [to] see if we can find a VIN number on it."⁵⁴

At 10:12 a.m., Garth tried three times to read Jensen the BMW's VIN number, but was "unable to provide the correct VIN number," so Jensen recorded the number himself.⁵⁵ Jensen testified that Garth's inability to read the VIN number was indicative of "nervous" behavior, based on his training and experience.⁵⁶ Jensen found the plastic tote was suspicious because Garth said he did not have the keys to it, and it appeared to be "of newer condition" compared to the damaged condition of the BMW.⁵⁷ Jensen also found it suspicious that Garth did not have the key to the car that was being sold.⁵⁸

At 10:13 a.m., Jensen asked Garth if he could "jump up and look at" the plastic tote.⁵⁹ Garth said, "sure."⁶⁰ Jensen stepped up on the trailer, confirmed the tote was locked, but was able to stick his hand in between the lids, and felt an object inside.⁶¹ Jensen "found [it] suspicious as if the car was being sold for parts and there was a topper that had belongings inside of it."⁶²

At 10:14 a.m., Jensen told Garth to "hang out right here for a second," and walked back to his patrol car.⁶³ Jensen then requested that Trooper West and Sergeant Wood respond, because "[a]t this time I believe[d] I had criminal activity taking place."⁶⁴ Jensen elaborated, "I didn't know if it was a stolen vehicle. I didn't know if there was illegal substances being transported. I was not aware of any of what was actually taking place at all."⁶⁵

Sgt. Wood estimated that he was "probably 20 miles away."⁶⁶ While Jensen waited for Sgt. Wood, he ran the VIN for the BMW and found that it was not stolen, but that its title was transferred to Garth in 2015.⁶⁷ This was inconsistent with Garth's previous statements that the BMW did not belong to him and that he did not have keys to the BMW.⁶⁸

At 10:17 a.m., after Trooper Jensen gestured to Garth from his patrol vehicle to walk towards him, Garth responded, "I was gonna go sit down."⁶⁹ Jensen said, "just one second" and continued to question Garth.⁷⁰ Jensen asked who was paying him to deliver the vehicle.⁷¹ Garth said he did not know, but then seconds later gave a name, "Brittany Keen," and provided a phone number.⁷² Jensen also asked how much he was being paid, and Garth repeated, "$500."⁷³ Jensen believed Mr. Garth was telling him "a false story" because "nothing that he had told me from the beginning was matching up to what was at hand."⁷⁴

At 10:18 a.m., Jensen asked Garth again for the BMW's delivery address, and Garth said, "I don't remember the address" and that "it's in the car."⁷⁵ Jensen found this "very suspicious" because Garth had previously retrieved the address from his phone, which was still in his hand.⁷⁶ Around this time, Trooper Jerome arrived.⁷⁷

At 10:20 a.m., Jensen searched Garth to make sure he did not have any weapons.⁷⁸ As Jensen prepared to deploy his canine "Drago" for an exterior sniff of the vehicle,⁷⁹ he told Mr. Garth to get Garth's dog out of the truck bed because, "I don't want [your] dog coming out while I'm running mine;" "you're gonna go stand up the road while I run my dog."⁸⁰ Jensen also had Ms. Wilmoth exit the vehicle and stand well away from the car.⁸¹

Trooper Jensen testified to a number of facts on which he based his suspicion of criminal activity leading to the canine sniff: the truck was an unregistered vehicle pulling an unregistered trailer which had an unregistered vehicle on the back;⁸² the truck "was a third-party vehicle, which due to training and experience was a possible indicator of criminal activity;"⁸³ the plastic tote on top of the BMW was "very suspicious to [Jensen] to begin with;"⁸⁴ the unusual nature of the address and Garth's subsequent failure to confirm the address;⁸⁵ Jensen eventually determined via Google search that the address provided by Garth as to their destination was a false address;⁸⁶ Garth's nervousness when asked to provide the VIN for the BMW;⁸⁷ Garth had told Jensen he did not...