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United States v. Orozco

United States District Court, D. Nevada

January 28, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
VICTOR H. OROZCO, Defendant.

ORDER Def's Motion to Suppress Evidence and Statements - dkt. no. 31

MIRANDA M. DU, District Judge.

I. SUMMARY

Before the Court is Defendant Victor H. Orozco's Motion to Suppress Evidence and Statements ("Motion"). (Dkt. no. 31.) For the reasons discussed herein, the Motion is denied.

II. BACKGROUND

A. Procedural History

Orozco is charged with two counts of possession with intent to distribute controlled substances and one count of smuggling goods into the United States. (Dkt. no. 16.)

Orozco filed the Motion (dkt. no. 31), and the Government filed a response (dkt. no. 40). Subsequent to the filing of the Motion, Orozco's counsel withdrew and he was appointed new counsel. (Dkt. no. 42.) The Court denied the Motion without prejudice in order to give new counsel the opportunity to review discovery material. (Dkt. no. 50.) At the request of Orozco's counsel, the Court then reopened the Motion and granted Orozco time to file a reply. (Dkt. no. 62.) Orozco filed a reply. (Dkt. no. 64.) The Court held an evidentiary hearing over the course of two (2) days regarding the Motion (dkt. nos. 72, 73) and the parties filed post-hearing briefs (dkt. nos. 76, 77). The Court subsequently held one final day of evidentiary hearing in which Orozco called his final witness. (Dkt. no. 79.)

B. Relevant Factual Background

The following facts are taken from Trooper Zehr's testimony, Trooper Boynton's testimony and Trooper Zehr's police report.

On April 27, 2013, Trooper Zehr was on active patrol in a fully marked Nevada Highway Patrol ("NHP") unit on U.S. 6 in White Pine County, Nevada. (Dkt. no. 69, Exh. A.) He initiated a traffic stop of a commercial tractor trailer being operated by Orozco. ( Id. ) The tractor trailer had a red tractor, white box trailer and Michigan plates. ( Id. ) Trooper Zehr initiated the stop in order to conduct a North American Standard (NAS) level III safety inspection. ( Id. ) He also initiated the stop because of information he received from Detective Sergeant Brewer, with the Nevada Division of Investigations (NDI), "who advised that he had received a source of information that... there was a commercial motor vehicle possibly engaging in criminal activity and could possibly have drugs in the vehicle" and that said vehicle had a red tractor and Michigan plates. (Dkt. no. 74 at 24:25; 25:1-23.) Trooper Zehr and Trooper Boynton, also present at the time of the stop, had received updates as to the expected travel time of said vehicle and were waiting for its arrival.[1] (Dkt. no. 75 at 215, 218-20.)

Trooper Zehr approached Orozco from the passenger's side of the tractor with Trooper Boynton. ( Id. at 176:10-19.) When Trooper Zehr first approached Orozco, he observed that Orozco appeared nervous. (Dkt. no. 69, Exh. A; dkt. no. 74 at 27:21-25; 28:1-8.) Trooper Zehr also noticed "religious items" in the tractor and an "overwhelming air freshener smell." (Dkt. no. 74 at 100:3-17.)

Trooper Zehr asked Orozco for his license and paperwork for a commercial vehicle inspection. (Dkt. no. 69, Exh. A.) The paperwork Orozco provided included a lease agreement. (Dkt. no. 74 at 32:3-7.) Trooper Zehr and Trooper Boynton noticed that the lease agreement conflicted with Orozco's statement that he owned the company and further noticed that the exterior of the truck did not indicate that it was leased and also did not indicate what company Orozco was operating under. ( Id .; see also dkt. no. 75 at 198:6-17.) The paperwork Orozco provided also included his logbook. (Dkt. no. 74 at 15:1-16.) Trooper Zehr noticed that Orozco's logbook entries appeared to be missing required information, making it difficult to determine how long Orozco had been on the road and whether he was concealing hours of service. (Dkt. no. 69, Exh. A; dkt. no. 74 at 34:21-25; 35:1-10.) He also noticed the log book indicated that Orozco had a co-driver, which appeared to be inconsistent with the identified downtime and sleep berth time. (Dkt. no. 74 at 36:4-19; 49:18-25; 50:1-3; 55:15-18.) Troopers Zehr and Boynton also believed the presence of a co-driver was inconsistent with the amount of time it took Orozco to travel from Washington to Nogales, AZ, which further indicated that time might have been concealed. ( Id. at 55:2-10; 61:15-18; dkt. no. 75 at 180:3-25; 190:21-23; 191:2-6.) Shipping papers are routinely examined in an inspection. (Dkt. no. 75 at 186.) In trying to determine when loads were picked up and dropped off, Troopers Zehr and Boynton noticed that shipping papers provided by Orozco indicated that he picked up his load of watermelons on a day that he was, according to his logbook, off-duty. (Dkt. no. 74 at 42-43; dkt. no. 75 at 186-88.)

After going over the logbooks and papers with Orozco for approximately twenty (20) minutes, Trooper Zehr walked away from the tractor and spoke on the phone to Trooper Barney, who was waiting within a mile, to discuss a canine sniff of the tractor trailer. (Dkt. no. 74 at 53-54.) He did so because he was suspicious of criminal activity and wanted to have the "resources available" to investigate criminal matters. ( Id. at 55:23-25; 56:1-7.) Trooper Zehr returned to his patrol car and ran a license check and criminal history check with dispatch. ( Id. at 59-60.) During this time, Trooper Boynton was still speaking with Orozco. ( Id. at 59:10-23.)

Approximately thirty (30) minutes after the initial stop, Trooper Boynton walked back to Trooper Zehr's patrol car and discussed his confusion regarding Orozco's co-driver. (Dkt. no. 75 at 193:5-13.) Trooper Boynton walked back to the tractor to question Orozco about the co-driver and was called back by Trooper Zehr who asked him to see if he could spot any "indicators" of criminal activity inside the cab of the tractor. (Dkt. no. 74 at 67-68; dkt. no. 75 at 192-193.) Trooper Zehr called his sergeant and discussed whether or not he has "reasonable suspicion" to hold Orozco longer and also discussed "rolling into" asking Orozco for consent to search his tractor trailer once the inspection is complete. ( Id. at 71:1-25; 72:1.) At this time, Trooper Barney looked at the tractor and was "on the phone with the El Paso Intelligence Center ("EPIC"), and making inquiries [as] to the company, the tractor and the trailer, and the driver." ( Id. at 70:17-22.)

Approximately forty (40) minutes after the initial stop, Trooper Boynton walked back to Trooper Zehr's patrol car and told Trooper Zehr that he was still confused. ( Id. at 72-73; dkt. no. 75 at 195:22-25; 96:1-7.) Trooper Zehr testified they were confused over "[w]hether or not [Orozco] had two trucks, whether or not he had more drivers, where his other trucks were, and how the truck that Mr. Orozco claimed he had the additional truck that he claimed he had, how it got from Washington to Nogales." (Dkt. no. 74 at 73:5-8.) Trooper Zehr asked other officers to leave so that there would not be an "overwhelming presence of law enforcement" when he asks Orozco for consent to search his tractor trailer. ( Id. at 75:1-3.) Trooper Boynton received information from Trooper ...


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