United States v. Nieves

256 F.Supp.3d 133

UNITED STATES of America, Plaintiff,

v.Joseph Rosa NIEVES, Defendant.

CRIMINAL NO. 16-388 (PAD).

United States District Court, D. Puerto Rico.

Signed June 22, 2017

Philippe A. Mesa-Pabon, United States Attorney's Office, San Juan, PR, for Plaintiff.

Angel Yamil Nieves-Negron, Call, Freyre & Nieves Law Offices, San Juan, PR, Eleonora C. Marranzini, Eric A. Vos, Federal Public Defender's Office, Hato Rey, PR, Rebecca Diaz-Guerrero, RDG Law Offices, Guaynabo, PR, for Defendant.

OPINION AND ORDER

Delgado-Hernández, District Judge.

Defendant Joseph Rosa Nieves was charged with being a drug user possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Before the court is defendant's "Motion to Suppress Evidence" (Docket No. 23), which the government opposed (Docket No. 26). A hearing was held on December 16, 2016 (Docket No. 28), after which, defendant supplemented his motion to suppress (Docket No. 61) and the government opposed defendant's supplemental motion (Docket No. 65). For the reasons explained below, the motion to suppress is DENIED.

I. BACKGROUND

Agent Ismael Feliciano of the Puerto Rico Police Department ("PRPD") pulled defendant's car over because his window tint was completely dark. See, Transcript of Suppression Hearing ("TR") at 7, 11–12, 32. As he did not have the machine or training to conduct a test of defendant's window tint, he asked defendant—the owner and driver of the vehicle—to go to the police station with him (TR. at 12–13, 16–17). Defendant agreed, taking the vehicle to the station house (TR. at 17 and 59). During the initial stop, Agent Feliciano smelled marijuana inside the vehicle (TR. at 14 and 33). In the station, the shift supervisor, PRPD Sergeant López, conducted the window tint test, confirming the presence of illegal tint (TR. at 18–20).

Agent Feliciano stood watching while Sergeant López conducted the test (TR. at 18). When Sergeant López was about finished with the test but before he had completed the test form, Agent Feliciano called a K–9 unit to the scene to investigate the vehicle (TR. at 20 and 39). No more than 10 minutes later, the K–9 unit arrived at the station (TR. at 21). The K–9 walked around defendant's car, "marking" the front driver's side door for illegal substances (TR. at 21–22, 40). Then (i) Agent Feliciano read defendant his Miranda rights (TR. at 23, 41), and (ii) defendant told Agent Feliciano that he had wanted to speak with him for a while and stated that he had "metal" (that is, a firearm) under the driver's seat of the vehicle (TR. at 24–25, 41). Agent Feliciano gave defendant the Miranda Rights in written form (TR. at 26), informed Rosa that he was detained (TR at. 46–47), handcuffed him, and took him inside the station (TR. at 27–28, 46–47).

Later that night, defendant made incriminatory statements to Homeland Security Investigation ("HSI") agents regarding knowledge of the firearm and marijuana use, and consented to a search of his vehicle (TR. at 53–54, 59–60). The agents searched the vehicle, finding and seizing a Glock 23 pistol and one high capacity magazine (TR. at 62–64). Defendant was charged, and has moved to suppress the incriminatory statements and the firearm, challenging (i) the prolongation of the traffic stop; (ii) the government's reliance on a K–9 without having provided evidence of the K–9's reliability; and (iii) use of a K–9 alert to arrest him without probable cause (Docket No. 61 at p. 2).¹ The sequence and analysis of relevant events follows.²

II. DISCUSSION

A. Initial Stop.

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. Const. amend. IV. Stopping and detaining a motorist constitutes a seizure within the meaning of the Fourth Amendment. See, Whren v. United States, 517 U.S. 806, 809–810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (so recognizing). The typical traffic stop resembles, in duration and atmosphere, the kind of brief detention authorized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See, United States v. Fernández, 600 F.3d 56, 59 (1st Cir. 2010) (describing Terry's application in a traffic-stop setting). Thus, law enforcement officers may stop a vehicle without a warrant if they have a reasonable suspicion of wrongdoing—a suspicion that finds expression in specific articulable reasons for believing that a person may be connected to the commission of a particular offense. See, United States v. Campbell, 741 F.3d 251, 261 (1st Cir. 2013) (articulating test); United States v. Washington, 455 F.3d 824, 826 (8th Cir. 2006) (same).

Agent Feliciano had an articulable and reasonable suspicion, amounting to probable cause, that defendant was violating Puerto Rico's Traffic Law. The vehicle defendant was driving had dark-tainted windows, which Agent Feliciano saw before ordering the driver to stop.³ See, United States v. Santiago-Ramos, 991 F.Supp.2d 318, 323 (D.P.R. 2014) (concluding that patrolling agents had probable cause to stop vehicle, as its tinted windows were too dark in violation of Section 5285). Agent Feliciano confirmed that defendant—the vehicle's driver—was the registered owner. Given that the windows had to be tested by a photometer that Agent Feliciano was not certified to use and did not have in the patrol car, he asked defendant to accompany him to the police station, and defendant agreed. Defendant was lawfully present in the station when the test was performed.

B. Investigation

The tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's mission—to address the traffic violation that warranted the stop and to attend to related safety concerns. See, Rodríguez v. United States, ––– U.S. ––––, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015) (explaining concept). The temporary seizure of driver and passengers ordinarily continues and remains reasonable for the duration of the stop, ending when the police have no further need to control the scene. See, Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (discussing principle). Information gained subsequent to the initial stop, however, may provide a basis for expanding the officer's investigation. See, United States v. Tiru-Plaza, 766 F.3d 111, 119 (1st Cir. 2014) (so noting).

In this way, the police may extend a stop beyond the scope of what was originally permissible with the driver's consent, or if something happened during the stop to cause the officer to have a reasonable and articulable suspicion that criminal activity was afoot. See, United States v. Stepp, 680 F.3d 651, 661 (6th Cir. 2012) (explaining basis for extension); United States v. Bates, 453 Fed.Appx. 839, 842 (10th Cir. 2012) (same).⁴ The officer must work purposely to confirm or dispel his suspicions promptly. See, United States v. McGregor, 650 F.3d 813, 820 (1st Cir. 2011) (so observing). But there are no hard time limits. Id. (citing, inter alia , United States v Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) ). Such a limit would undermine the need to allow authorities to graduate their response to the demands of any particular situation. Sharpe, 470 U.S. at 686, 105 S.Ct. 1568.

The officer's actions here were permissible because they did not unreasonably extend the scope of the initial stop, and were independently supported by more than reasonable suspicion of criminal activity. When Agent Feliciano arrived with defendant in the station, he spoke with Sergeant López to test for the tint. Around the point when the last part of the test was performed, Agent Feliciano contacted Agent Mercado to bring in the K–9 unit to the station because he had smelled marijuana in defendant's vehicle during the initial traffic stop. At this juncture, the test form had not been filled in.

The K–9 unit arrived no more than 10 minutes after Agent Feliciano spoke with Agent Mercado (TR 21). Considering that Agent Feliciano had smelled marijuana in the vehicle; and the relatively short time the K–9 unit arrived after it was summoned, the intervention had not turned unreasonable when the K–9 unit walked around and marked defendant's car. See, Fernández, 600 F.3d at 59 (traffic encounter extended after active warrant was discovered during initial check and independently justified further detention).⁵ Cf. Rodríguez, 135 S.Ct. at 1614, 1616–1617 (remanding case for determination of whether reasonable suspicion of criminal activity justified detaining defendant beyond completion of the traffic infraction investigation in order to conduct a dog sniff).⁶ See also, United States v. Sanford, 806 F.3d 954, 959 (7th Cir. 2015) (holding that reasonable suspicion justified the officer in prolonging the stop by about eight minutes to wait for the arrival of the drug dog to confirm or dispel suspicion with the dog's assistance).

C. Arrest

Defendant argues that the arrest was illegal and not supported by probable cause because the government did not establish the K–9's credentials or reliability (Docket No. 61 at pp. 2, 7–10). He contends that even if the reliability of the K–9 were not an issue, the alert cannot support a warrantless arrest, for the alert may provide probable cause to search, but not to arrest. Id. at pp. 2, 10.

A warrantless arrest is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed. See, Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (so holding). The standard applies to offenses under state law, regardless of whether state law authorizes an arrest for that particular offense. See, Virginia v. M o ore, 553 U.S. 164, 176, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) (stating principle). To establish probable cause, the government must demonstrate that at the time of the arrest, the facts and circumstances known to the arresting officer were sufficient to...