United States v. Vasquez

637 F.Supp.3d 1220

UNITED STATES of America v. Esteban VASQUEZ

Case No. 5:22-cr-40004-TC

United States District Court, D. Kansas

Signed October 28, 2022

Lindsey Debenham, Office of United States Attorney, Topeka, KS, for United States of America.

Kirk C. Redmond, Richard Federico, Public Defenders, Office of Federal Public Defender, Topeka, KS, for Esteban Vasquez.

MEMORANDUM AND ORDER

Toby Crouse, United States District Judge

The Government has charged Esteban Vasquez with one count of possession with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine under 21 U.S.C. § 841(a)(1). Doc. 1 at 1-2. Vasquez moves to suppress evidence the Government obtained from his car after a traffic stop. Doc. 22. His motion is denied.

I

A

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. Warrantless searches and seizures of people or their personal property are presumed unreasonable. United States v. Karo, 468 U.S. 705, 717, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). The Government may rebut that presumption by showing that an exception to the warrant requirement applies. See Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). So while it is the defendant's burden to show the Fourth Amendment is implicated, once he carries that burden, the Government must show that a warrant was not required under the circumstances. United States v. Neugin, 958 F.3d 924, 930 (10th Cir. 2020).

The Fourth Amendment requires every traffic stop to be justified at its inception and remain reasonably limited in scope to those circumstances. United States v. Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005). The traffic stop must conclude once its mission has been accomplished unless the initial detention becomes a consensual encounter, see Bradford, 423 F.3d at 1158, or the officer develops reasonable suspicion of other illegal activity, see Rodriguez v. United States, 575 U.S. 348, 354-55, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015); see also United States v. Gomez-Arzate, 981 F.3d 832, 842 (10th Cir. 2020).

If a search or seizure violates the Fourth Amendment, the exclusionary rule generally forbids the Government from using evidence obtained from that search or seizure at trial. Herring v. United States, 555 U.S. 135, 139, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). That rule applies only where it "result[s] in appreciable deterrence" for law enforcement. Id. at 141, 129 S.Ct. 695 (alteration in original) (quoting United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). Suppression is therefore not "an automatic consequence of a Fourth Amendment violation." Id. at 137, 129 S.Ct. 695.

B

On November 19, 2021, Esteban Vasquez was driving in a rental car with his girlfriend, Blanca Chavez, eastbound on Interstate 70 near Salina, Kansas. Doc. 22 at 1. At 7:24 a.m., Kansas Highway Patrol Trooper Justin Rohr clocked Vasquez driving at 98 miles per hour in a 75-mile-per-hour zone. Id. at 2. Rohr pursued Vasquez's car and activated his emergency lights, then Vasquez pulled over to the shoulder of the Interstate. Id.; Def. Ex. 801 at 2:02. When both cars had stopped, Rohr exited his patrol car and approached Vasquez's car on the driver's side. Doc. 28 at 2.

At Vasquez's window, Rohr explained that he had pulled Vasquez over for speeding and asked for his driver's license and rental agreement. Id. Rohr then asked where they were headed. Doc. 22 at 2. Vasquez remained silent, but Chavez said they were going to Missouri. Doc. 28 at 2. When Rohr asked where in Missouri, neither of them responded. Id. Vasquez told Rohr he had rented the car but could not find the rental agreement, which he believed was digital. Id. at 2-3. Rohr told him to come back to the patrol car and sit in the passenger seat while he continued looking for the agreement on his phone. Doc. 22 at 2.

Rohr and Vasquez talked in the patrol car for about twelve and a half minutes. Id. at 3. Rohr asked again where in Missouri Vasquez and Chavez were headed. Doc. 28 at 3. This time, Vasquez said they were driving to Tennessee and planned to stay in Nashville for three or four days. Id. When Rohr asked why they did not fly, Vasquez said they were driving because his aunt lived in California. Id. Vasquez was distracted during the conversation because he was searching his phone for the rental agreement, Doc. 22 at 3, and he "appeared nervous," Doc. 28 at 4. While he and Vasquez were in the patrol car, Rohr learned from dispatch that Vasquez had a criminal history that included drug charges. Docs. 22 at 3 & 28 at 3.

Despite spending several minutes searching his phone, Vasquez still could not locate the rental agreement. Doc. 28 at 3. Rohr asked Vasquez to look for it again in the passenger compartment of the rental car, but Vasquez was still unable to locate the agreement and returned to the passenger seat in Rohr's patrol vehicle. Id. Finally, Rohr printed Vasquez's ticket, explained how to pay it, asked Vasquez if he had any questions, and told him to slow down. Doc. 22 at 4. Rohr then handed Vasquez the ticket, his driver's license, and Chavez's identification card and said, "I'll let you give these to her." Id. There was nothing in the parties' pleadings nor any evidence submitted at the suppression hearing to suggest that Rohr still had possession of any of Vasquez's or Chavez's paperwork. And Chavez—presumably the "her" Rohr was referencing—remained in the rental vehicle.

The parties dispute what happened next. The Government claims that Vasquez started to leave the patrol car, Doc. 28 at 4, but Vasquez says that he remained seated in the patrol car when Rohr started to question him again, Doc. 22 at 8. The video does not indicate that Vasquez opened the door or otherwise tried to leave. Def. Ex. 801 at 16:03. In any case, while Vasquez was still in the passenger seat and before he had opened the passenger door, Rohr asked Vasquez whether he could ask him some questions. Doc. 22 at 4. Vasquez did not say yes, but instead asked Rohr about the fine amount on the ticket. Docs. 22 at 4 & 28 at 4. Rohr answered him, then asked Vasquez whether he had anything illegal in the car, including guns, drugs, alcohol, marijuana, cocaine, heroin, and methamphetamine. Doc. 22 at 5. Vasquez answered no to each question. Id. Rohr then asked if he could search the car, and Vasquez said "Sure." Id.

Rohr's search of Vasquez's car uncovered the evidence at issue in this motion. He found cash in the center console and a paper bag in the trunk, which held several clear plastic bags that Rohr suspected contained methamphetamine. Doc. 28 at 4. Rohr then arrested Vasquez. Id. After searching the vehicle further, officers recovered a total of $17,155 in cash, seven pounds of methamphetamine, two and a half pounds of heroin, and two and a half pounds of fentanyl. Id.

C

Vasquez filed a motion to suppress the evidence obtained from the car. Doc. 22. He does not claim that the initial stop was illegal—Vasquez admits that Rohr reported his speed as "98 miles per hour in a posted 75 miles per hour zone," Doc. 22 at 2, and that Rohr "was permitted by law to conduct ordinary inquiries incident to the traffic stop," id. at 6. Instead, Vasquez argues that Rohr impermissibly extended the stop in violation of Rodriguez, 575 U.S. at 348, 135 S.Ct. 1609, and that the subsequent warrantless search "violate[d] the Fourth Amendment" because no exceptions to the warrant requirement apply, Doc 22 at 2, 11. An evidentiary hearing on the motion to suppress was held on September 28, 2022. Doc. 30.¹

II

Vasquez fails to identify a Fourth Amendment violation in this encounter. Once the initial stop ended and Rohr returned all of the paperwork to Vasquez, Vasquez consented to additional questioning. But even if the stop had not become consensual, by the time Rohr handed him the ticket, Rohr had reasonable suspicion to believe he was trafficking drugs and that alone warranted additional investigation. In either case, Vasquez voluntarily consented to the subsequent search of his car. As a result, the evidence obtained from this encounter will not be suppressed.

A

Vasquez claims he did not voluntarily consent to extend the traffic stop. This argument is unavailing.

1. After completing a traffic stop, an officer may engage the driver in a consensual encounter, during which the officer may question the driver. Gomez-Arzate, 981 F.3d at 842. "A consensual encounter is the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement officer." United States v. Mercado-Gracia, 989 F.3d 829, 836 (10th Cir. 2021) (quoting Gomez-Arzate, 981 F.3d at 842). When determining whether an encounter is consensual, the focus is on police conduct—specifically, whether it "would have conveyed to a reasonable person that he or she was not free to decline the officer's requests or otherwise terminate the encounter." Id. (quoting Bradford, 423 F.3d at 1158).

The Government bears the burden to prove the police stop became consensual. United States v. Hernandez, 847 F.3d 1257, 1264 (10th Cir. 2017). The Tenth Circuit has held that there is a bright-line rule that requires the driver's documents to be returned before the encounter may become consensual. Mercado-Gracia, 989 F.3d at 836. But that alone is not sufficient. The Tenth Circuit considers several non-exclusive factors when analyzing an extended stop, including:

the location of the encounter, particularly whether the defendant is in an open public place where he is within the view of persons other than law enforcement officers; whether the officers touch or physically restrain the defendant; whether the officers are uniformed or in plain clothes; whether their weapons are displayed; the number, demeanor and tone of voice of the officers; whether and

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