United States District Court, D. Nevada
FINDINGS & RECOMMENDATION
GEORGE FOLEY, Jr., Magistrate Judge.
This matter is before the Court on Defendant Randy Johnson's Motion to Suppress Evidence for Fourth Amendment Violation (#23), filed on October 28, 2013. The Government filed its Response in Opposition to Defendant's Motion (#27) on November 29, 2013. The Court initially scheduled an evidentiary hearing on Defendant's motion for December 5, 2013. The parties thereafter stipulated to several continuances of the evidentiary hearing which was eventually conducted on June 18 and July 30, 2014.
Defendant Randy Johnson is charged in a one count indictment filed on August 13, 2013 with possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). Indictment (#10). The indictment arises out of a highway patrol officer's traffic stop of Defendant's Johnson's rental vehicle on August 6, 2013, and the subsequent search of that vehicle during which methamphetamine was found in the trunk. Defendant argues that the vehicle search violated the Fourth Amendment and that the evidence resulting from the search should be suppressed.
NHP Trooper Ervin Raab.
The Government called Nevada Highway Patrol (NHP) Trooper Ervin Raab as a witness at the evidentiary hearing. Trooper Raab has been employed by the NHP for approximately 18 years. He has been assigned to the Nevada Interdiction Task Force ("Task Force") for the past 3 years. The Task Force is made up of members of Southern Nevada law enforcement agencies, including the Nevada Highway Patrol, and the Las Vegas, Henderson and Mesquite, Nevada police departments. Task Force officers patrol Interstate Highway 15 ("I-15") which runs through Clark County, Nevada and which is a major corridor for transporting illegal narcotics into the United States from the southwest border. Task Force officers look for vehicles that are transporting large amounts of narcotics or currency derived from drug trafficking. Trooper Raab has taken classes to identify the behavior or characteristics of individuals engaged in drug trafficking and to identify where narcotics and money may be hidden in vehicles. Trooper Raab patrols in a marked NHP patrol car which is equipped with an audio-video recording system. The recording system is also linked to a global positioning satellite (GPS) which gives a reading on the speed of the patrol vehicle. While on patrol, Trooper Raab communicates by radio and cell-phone with other Task Force officers, including officers equipped with narcotics detection dogs, i.e., K-9 units.
Trooper Raab testified that on August 6, 2013 at approximately 7:30 P.M. he was parked in his patrol vehicle on the right shoulder of northbound I-15 near mile marker 55. The speed limit on I-15 is 75 miles per hour. He testified that his attention was attracted to a blue Chrysler sedan traveling in the No. 1 travel lane that was passing a "semi." Trooper Raab proceeded to follow the Chrysler and pace its speed. He did not recall how long he paced the Chrysler, but he determined that it was traveling at 78 miles per hour. Trooper Raab testified that he has paced many vehicles and received some field training on pacing early in his career. Trooper Raab's patrol vehicle is equipped with radar, but he does not use it because he is not very good at operating it and he does not find it reliable.
Trooper Raab decided to stop the Chrysler for speeding. The audio-video recording system was activated when he turned on the patrol car's emergency lights to signal the Chrysler to stop. The system records 30 seconds back from when it is activated. A DVD of the audio-video recording was admitted into evidence as Government's Exhibit 3. Trooper Raab testified that he later reviewed the GPS speed reading on the recording which showed that his vehicle was traveling at 77 miles per hour prior to the stop.
The driver of the Chrysler pulled over to the side of the freeway and stopped near mile marker 59 at 7:51:15 P.M. Trooper Raab exited his patrol car and approached the front passenger side window of the Chrysler where he made contact with the driver, Randy Johnson, who was the only occupant of the vehicle. Trooper Raab testified that Mr. Johnson appeared to be nervous. He fumbled through his wallet for his driver's license and his hand trembled when he handed it to the trooper. Trooper Raab testified that it is common for individuals to be nervous during a traffic stop, but their nervousness usually dissipates during the course of the stop. He testified that Defendant continued to be nervous throughout the stop. Trooper Raab also observed that Defendant's hands and fingernails were dirty. Defendant later told him that he was a mechanic. Trooper Raab stated that Defendant's appearance did not appear to "fit" the new rental vehicle he was driving. He also testified that Defendant's facial characteristics were similar to those of a methamphetamine user- sunken cheeks, pale skin, and dark rings under the eyes.
Trooper Raab testified that he told the Defendant he had stopped him for speeding and Defendant responded that his cruise control was set at 75 mph. Mr. Johnson provided the trooper with his license and a copy of a car rental agreement which showed that he rented the Chrysler from Avis Car Rental in Burbank, California on August 6, 2013 at 11:36 A.M. The vehicle had a return due date of August 13, 2013 at 11:00 A.M. at the same rental location. See Government's Exhibit 2.
The audio-video recording shows that upon making contact with the Defendant, Trooper Raab asked him for his driver's license which Defendant provided. He then asked Mr. Johnson where he was coming from. The Defendant stated California. Trooper Raab asked Defendant where he was going. Defendant stated that he was going to Detroit, Michigan to visit some friends and that he would be in Detroit for about a week. Trooper Raab told the Defendant that the reason he stopped him was that the speed limit is 75 mph and he had him going "over 78." Defendant somewhat excitedly responded "No way, I have this thing!"-apparently referring to the vehicle's cruise control. Trooper Raab again asked the Defendant who he was going to see in Detroit. Defendant answered friends. Trooper Raab asked what type of friends, and Defendant answered that they were friends who used to live "out here, " but had moved back there. Trooper Raab then asked Defendant what type of work he does. Defendant responded that he was in the junk removal business. Trooper Raab asked Defendant where he rented the vehicle and he stated at the airport.
The recording shows that Trooper Raab next asked the Defendant if he had "ever been arrested before." Defendant responded yes and the trooper asked him "what for." Defendant stated that "back in the day" he had been arrested for all kinds of things such as petty theft. (Trooper Raab testified that Defendant also stated that he had been arrested for burglary.) Trooper Raab asked Defendant if there were any warrants for his arrest and Defendant said no. The trooper then stated "I'll be right back with you, " and appeared to be about to move away from the vehicle. It appears that Defendant said something to the trooper and there was a brief, but unintelligible, verbal exchange between them. Trooper Raab then asked Defendant if he had any marijuana, methamphetamine, cocaine, heroin, guns, or knives. Defendant responded no to each question. The trooper asked him if anyone had paid him to take anything across country. Defendant also responded no. Trooper Raab told the Defendant that he would be right back and returned to his patrol car at 7:54:20 P.M.
The audio-video recording shows that Trooper Raab remained at or near his patrol car until 8:16 P.M. During that period, Defendant remained inside the Chrysler. After leaving Defendant's vehicle, Trooper Raab turned off his body microphone. Because he was standing near the patrol car, however, his cell phone conversations with another officer, Detective Sandoval, were picked up by the vehicle's microphone.
Trooper Raab testified that during his initial encounter with the Defendant, he appeared to become more nervous and looked down and away when the trooper asked him if he had any narcotics, guns or knives. Trooper Raab testified that California is a source state for illegal narcotics coming across the border and that Detroit, as well as several other cities throughout the central or Midwest section of the United States, are destination cities for illegal narcotics.
Trooper Raab testified that after returning to his patrol vehicle, he requested a records check on the Defendant. He did not recall what time he requested the records check and did not record this information in his arrest report. He testified that the response time for a records check varies from dispatcher to dispatcher, but that the passage of 20 minutes before a response is received is not abnormal. Trooper Raab also used his cell-phone to call Las Vegas Metropolitan Police Department (LVMPD) Detective Adrian Sandoval to assist him with the stop. Detective Sandoval operated as a K-9 unit and had a narcotics detection dog. Detective Sandoval told Trooper Raab that he was busy, but that he would contact Detective Schaffner, another K-9 unit officer, to assist Trooper Raab. Detective Sandoval called Trooper Raab back and told him that Detective Schaffner was on the way.
Portions of the audio-video recording was played during the hearing. With the aid of the recording, Trooper Raab testified that he placed a cell phone call to Detective Adrian Gonzalez at 7:57:51 P.M. He did not get through to Detective Gonzalez at that time. He radioed NHP dispatch at 7:58:39 P.M. to request a records check on the Defendant. The NHP dispatcher was busy and unable to immediately take the information for the records check. The dispatcher told him to stand by. Detective Gonzalez called Trooper Raab back at 8:00:37 P.M. Trooper Raab made contact with the NHP dispatcher at 8:01:06 P.M. and provided the records check information. At 8:04:30 P.M., Detective Gonzalez again called Trooper Raab and informed him that Detective Schaffner would assist him. Trooper Raab contacted the "El Paso Intelligence Center" (EPIC) at 8:06:48 P.M. to run another records check on the Defendant. The recording indicates that at approximately 8:10:10 P.M. Trooper Raab thanked one of the officers who arrived on the scene for coming out. Trooper Raab was unable to state whether this was Detective Schaffner or another NHP officer who arrived on the scene. At 8:13:44 P.M. NHP dispatch provided the records check response to Trooper Raab. Trooper Raab then summoned Defendant from his vehicle at 8:16 P.M.
Trooper Raab testified that when he calls for back-up, he routinely does this before he requests a records check. He requested back-up by a K-9 officer in this instance because of his suspicions about Mr. Johnson and his desire to conduct a dog sniff of the vehicle. Trooper Raab testified that his suspicions were aroused by Mr. Johnson's nervousness, his story regarding the purpose of his travel, that he was traveling from a "source state" to a "source city, " and the fact that he was driving a rental car, although this latter fact was not overly significant. He stated that narcotics traffickers sometimes use rental cars to distance themselves from ownership or possession of the vehicle used to transport narcotics. Trooper Raab acknowledged on cross-examination, however, that the Chrysler was rented in Mr. Johnson's name.
Trooper Raab also testified about additional suspicious factors, including Defendant's physical appearance which did not match the vehicle he was driving and that his face had the appearance of a possible methamphetamine user. He also testified that Defendant's extensive criminal record, including narcotics arrests or offenses, added to his suspicions. On cross-examination, Trooper acknowledged that he listed only the following suspicious factors in his arrest report: (1) Defendant was nervous; (2) His stories of his travel were suspicious and confusing; (3) He was traveling from a known source city, Los Angeles or Burbank, California; and (4) He was traveling to a known source city, Detroit Michigan. Trooper Raab acknowledged that he discussed the other factors not mentioned in his report during his meeting with the prosecutor prior to the hearing.
Trooper Raab testified that when Mr. Johnson came back to his patrol car at 8:16 P.M., he still appeared to be nervous and was smoking a cigarette. Under some prompting by Government counsel, Trooper Raab stated that in his opinion people smoke cigarettes to calm themselves. Trooper Raab returned Mr. Johnson's documents to him. He again asked Mr. Johnson about his travel, where he was coming from, where he was going, who he was going to see and how long he was going to be there. Defendant had originally told him he was going to Detroit for a week. He asked the Defendant how long it was going to take him to drive to Detroit and Defendant said three to three and one-half days. He pointed out to the Defendant that if it took him three days to drive to Detroit and three days to return, he would only be there for one day. Defendant stated that he was going to be there for a week. Trooper Raab asked him if he was going to drive or fly back. Defendant began to say something, but then paused, appeared to change his mind, and stated that he was going to fly back. Trooper Raab testified that Defendant's statements regarding his travel plans, including flying back from Detroit, were inconsistent with the car rental agreement that required him to return the vehicle in California in one week.
Trooper Raab testified that he gave Defendant a verbal warning for the traffic infraction. He then asked Defendant if he could speak to him a little bit more and Defendant said yes. He did not tell Mr. Johnson he was free to leave. Nor did he tell Defendant that he could not leave or that he was required to answer the trooper's questions. Defendant did not indicate a desire to leave and was generally compliant with the trooper. Trooper Raab testified that he again asked Defendant if he had anything illegal in the vehicle. He asked Defendant if he had marijuana, methamphetamine, cocaine or heroin. Defendant responded no. He then asked Defendant if he could search the vehicle. Defendant said no. Trooper Raab asked for consent again and Defendant again said no. He asked Defendant why he would not consent. Defendant said his friends told him not to let the cops do that.
Trooper Raab testified that after Defendant refused to consent to the search, Detective Schaffner approached the Chrysler with the dog and did "a free air sniff" around the vehicle. Trooper Raab engaged Mr. Johnson in conversation while Detective Schaffner and the dog moved around the Chrysler. Detective Schaffner returned from the Chrysler and informed the Defendant that the dog had alerted to the presence of narcotics in the vehicle. Defendant did not respond to this statement. Trooper Raab directed Mr. Johnson to stand about fifty feet out in the desert while the officers searched the Chrysler. While the officers were conducting the search, Defendant fled into the desert. Mr. Johnson was apprehended and returned to the patrol vehicle. During ...