United States District Court, D. Minnesota
Benjamin Bejar, Assistant United States Attorney, Minneapolis, MN (for the Government).
Alberto O. Miera, Miera Law Office, St. Paul, MN (for Defendant).
REPORT & RECOMMENDATION
TONY N. LEUNG, Magistrate Judge.
This matter is before the Court, United States Magistrate Judge Tony N. Leung, on Defendant's Motion to Suppress Evidence (ECF No. 17). This motion has been referred to the undersigned for a report and recommendation to the district court, the Honorable Ann D. Montgomery, District Judge of the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1(a)(3).
A hearing was held on August 22, 2014. Assistant United States Attorney Benjamin Bejar appeared on behalf of the United States of America (the Government). Attorney Alberto O. Miera appeared on behalf of Defendant.
The Court heard testimony from Trooper Douglas Rauenhorst of the Minnesota State Patrol. The Court received the following exhibits: Government Exhibit 1, two DVDs of the traffic stop at issue; Government Exhibit 2, a photograph of objects held in place to show how the objects were suspended from a rearview mirror; Government Exhibits 3, 4, 5, and 11, photographs of air fresheners in a vehicle and a key in the ignition; Government Exhibit 6, a photograph of a white sweatshirt and two small bags in the rear of a vehicle; Government Exhibit 7, a photograph of a handbag and the identification cards of Co-Defendant Olga Margarita Valencia; Government Exhibit 8, a photograph of Defendant's non-government-issued "Nebraska" identification card; Government Exhibit 9, a copy of the "Minnesota State Patrol Consent to Search" form signed by Valencia; Government Exhibit 10, a copy of the "Violation Report" issued for objects being suspended from a rearview mirror; Government Exhibit 12, a printout of the Nebraska Department of Motor Vehicles registration for a red 2004 Ford Expedition; Government Exhibit 13, a printout of the Nebraska Department of Motor Vehicles historical record for a red 2003 Ford Expedition; Defendant Exhibit A, a flyer for AmeraCard Enterprises, Inc. identification cards; and Defendant Exhibit B, a demonstrative photograph of items hanging from a rearview mirror.
Post-hearing briefing is now complete and this motion is ripe for a determination by the Court.
Based upon the file and documents contained therein, along with the testimony presented and exhibits received, the undersigned Magistrate Judge makes the following:
Trooper Rauenhorst is a licensed peace officer and has been with the Minnesota State Patrol for 18 years. (Tr. 10.) In his current position, he performs regular patrol and canine duties. (Tr. 10.) Before working with the Minnesota State Patrol, Trooper Rauenhorst was a member of the Drug Task Force for the Blue Earth County Sherriff's Department, worked for two years with the Janesville Police Department, and served as a criminal investigator for the United States Marine Corps. (Tr. 10.) Trooper Rauenhorst has an associate's degree and a bachelor's degree from Mankato State. (Tr. 11.) Trooper Rauenhorst has also received skills training from Hibbing Technical College, the "MP school, " and the United States Marine Corps. (Tr. 11.) Trooper Rauenhorst has received additional training related to controlled substances and the trafficking thereof, including the "covert drug investigations school; DEA school; [and] Desert Snow training." (Tr. 11.) Through this training, Trooper Rauenhorst was instructed on types of controlled substances, different trafficking routes, methods of concealing controlled substances in passenger and commercial vehicles, and common indicators of drug trafficking on the highways. (Tr. 11, 12-13.) In particular, one of the "Desert Snow" training sessions covered over 200 hidden compartments, or "hides, " for concealing controlled substances and contraband in passenger vehicles. (Tr. 11, 12.) Trooper Rauenhorst also participated in a training session covering hides in commercial vehicles. (Tr. 12.)
Through his training and experience, Trooper Rauenhorst has become aware of some common indicators of drug trafficking on the highways. (Tr. 12, 13.) One of these indicators is the use of third-party vehicles or recently purchased vehicles. (Tr. 13.) Hidden compartments are often placed inside the vehicle, the vehicle is used to run drugs, and then the vehicle is discarded within a short period of time. (Tr. 13.) A vehicle's registration is therefore important. (Tr. 13.) Other common indicators are the use of "masking agents" to conceal the odor of narcotics, such as fragrance, laundry detergent, fabric softener, and dryer sheets, and the presence of air-tight bags, such as heat-sealed or food-saver bags. (Tr. 13, 14.) Trooper Rauenhorst testified that masking agents are used in an effort to conceal the odor of narcotics from both human and canine officers. (Tr. 14.) Trooper Rauenhorst also testified that substantial amounts of cash are also significant because most narcotics transactions are cash transactions. (Tr. 36.) Trooper Rauenhorst testified that a particular indicator occurring by itself may have an innocent explanation. (Tr. 97.)
Trooper Rauenhorst has also been a canine handler since 1999 and works with his canine, Diesel, who is trained to detect narcotics. (Tr. 14.) Diesel is certified every year with the United States Police K9 Association and was nationally certified in May 2014. (Tr. 14.) Diesel "placed 6th in Nationals." (Tr. 14.) Trooper Rauenhorst testified that masking agents generally do not interfere with the canine's ability to detect the presence of narcotics. (Tr. 15; see Tr. 57-58, 94.)
On June 5, 2014, Trooper Rauenhorst was patrolling the area of Interstate 35 between Albert Lea and Owatonna, Minnesota. (Tr. 15.) Trooper Rauenhorst was monitoring traffic, including observance of the speed limit, vehicle equipment, and observance of Minnesota traffic laws. (Tr. 15-16.) At approximately 10:40 a.m., Trooper Rauenhorst spotted a red Ford Expedition with "objects hanging down from the rearview mirror in view of the driver and the windshield." (Tr. 17.) With certain exceptions not applicable here, the suspension of an object between the driver and the windshield of a motor vehicle is prohibited by Minnesota law. (Tr. 17.) Minn. Stat. § 169.71, subd. 1(a)(2). Trooper Rauenhorst observed what "[l]ooked like strings or possibly beads..." hanging down. (Tr. 18.)
Trooper Rauenhorst turned on his emergency lights and pulled over the Expedition. (Tr. 19, 21.) When Trooper Rauenhorst turned on his emergency lights, the video equipment in his squad car activated. (Tr. 19.) The recording equipment is such that it "backs up" to one minute prior to the switching on of the emergency lights and begins recording from that point forward. (Tr. 19; see Gov't Ex. 1, DVD 1.)
Trooper Rauenhorst approached the Expedition on the passenger side and spoke to the occupants. (Tr. 21.) There were four occupants in the vehicle: a male driver, a front female passenger, and two rear male passengers who appeared to be in their teens. (Tr. 21, 22; see Tr. 64.) Trooper Rauenhorst also observed an approximately two-inch cloth square on a string and beads resembling a rosary hanging down from the rearview mirror. (Tr. 23, 24, 25; see Tr. 65-66; see Gov't Ex. 2.) The driver appeared nervous, kept looking down and away, and would not maintain eye contact with Trooper Rauenhorst. (Tr. 23.)
Additionally, Trooper Rauenhorst noticed the "strong odor of air freshener stemming from inside the vehicle." (Tr. 31; see Gov't Ex. 1, DVD 1.) Trooper Rauenhorst observed several air fresheners in the Expedition, including in the dash vent, hanging from the steering column, and hanging in the rear of the vehicle. (Tr. 32; see Gov't Exs. 3, 4, 5, 11.) In total, there were approximately six to seven air fresheners in the Expedition. (Tr. 33.)
Trooper Rauenhorst also noticed that, other than the ignition key, no other keys were present on the key ring, such as a house key or key for another vehicle. (Tr. 34; see Gov't Ex. 11.) Trooper Rauenhorst testified that a single key in the ignition is significant in drug trafficking because an organization will purchase the vehicle, use it for a short time, and then discard the vehicle. (Tr. 35.) Because the vehicles are just being used to transport narcotics and not "for personal use, " "there's no other reason to have a regular house key, other vehicle keys or anything like that." (Tr. 35.) Similarly, Trooper Rauenhorst observed that the Expedition had new rear tires. (Tr. 48.) Trooper Rauenhorst testified that "[a] lot of these organizations, they don't want the vehicles to break down and they are in good mechanical order." (Tr. 48.)
The female passenger was identified by a Nebraska driver's license as Valencia. (Tr. 22.) Valencia told Trooper Rauenhorst that she and Defendant were married and they were traveling from Omaha to visit the Mall of America. (Tr. 28, 29, 34-35; Gov't Ex. 1, DVD 1.) When Valencia reached into her purse to get her driver's license, Officer Rauenhorst noticed "a significant amount" of cash in the purse. (Tr. 36, 76; see Gov't Ex. 1, DVD 1.) Valencia also produced a California driver's license and a permanent resident card. (Tr. 38; Gov't Ex. 7.) Trooper Rauenhorst was also able to determine that the Expedition was purchased in mid-May and registered to Valencia at the end of May. (Tr. 40; see Gov't Ex. 12.)
Defendant, the driver, produced a non-government-issued "Nebraska" identification card and a Mexican driver's license, which appeared to be current. (Tr. 22-23, 25, 26-27, 69, 70, 71, 93; see Gov't Ex. 8.) Trooper Rauenhorst testified that Defendant's identification card "didn't appear to be real" and would not return any information when he attempted to run the card through his magnetic card reader. (Tr. 25, 27; see Gov't Ex. 1, DVD 1.) Trooper Rauenhorst tried entering Defendant's name and date of birth as well as the number on the identification card, none of which "c[a]me back on file." (Tr. 25-26.)
Trooper Rauenhorst also learned from Valencia that Defendant had been in the country for two years and had a passport at home in Nebraska. (Tr. 29, 30; see Tr. 76; Gov't Ex. 1, DVD 1.) Valencia told Trooper Rauenhorst that she worked at T.J. Maxx and Defendant worked construction. (Tr. 29.) When asked why the address on her driver's license and Defendant's identification card were different, Valencia responded that the correct address was the address on her driver's license. (Tr. 29, 93.) It also appeared that there was no luggage in the Expedition. ( See Tr. 37, 38, 84-87, 91-92.)
Trooper Rauenhorst subsequently tried to verify some of the information supplied by Valencia through the El Paso Intelligence Center ("EPIC") database. (Tr. 30.) EPIC is a database containing information from different agencies including Immigration and Customs Enforcement, the Drug Enforcement Administration, and the Federal Bureau of Investigation. (Tr. 30.) EPIC contains information on active investigations as well as entries into the United States. (Tr. 30-31.) EPIC also did not return any information regarding Defendant. (Tr. 31.)
Significant to the totality of the circumstances in this case, Trooper Rauenhorst did learn additional information regarding Valencia from EPIC. (Tr. 39.) Trooper Rauenhorst learned that, in February, a red Ford Expedition registered to Valencia was stopped in Colorado on its way to California. (Tr. 39.) During the stop, law enforcement seized $16, 000 cash. (Tr. 39.) The dispatcher told Trooper Rauenhorst that the Ford Expedition involved in the February stop had only "temporary registration." (Tr. 40.) Based on the information he received at the time, Trooper Rauenhorst believed the Expedition stopped in February and the Expedition involved in his traffic stop were the same vehicle. (Tr. 40.)
Trooper Rauenhorst then tried verifying Defendant's identity by fingerprint through IBIS, an electronic database that is linked to the Minnesota Bureau of Criminal Apprehension. (Tr. 27-28, 39, 72; see Gov't Ex. 1, DVD 1.) Trooper Rauenhorst also did not receive any results through IBIS. (Tr. 28, 73.) Trooper Rauenhorst asked Defendant if he had any other identification on him and Defendant stated he did not. (Gov't Ex. 1, DVD 1.)
Based on his observations and the information he had acquired, including the EPIC information concerning the Expedition stopped in February and that vehicle's California destination (a location which Trooper Rauenhorst testified is a "source" for illegal contraband) as well as the absence of information concerning Defendant's entry into the United States, Trooper Rauenhorst believed that there was illegal contraband, specifically narcotics, in the Expedition he stopped. (Tr. 44, accord Tr. 92.) Trooper Rauenhorst completed the traffic stop and issued a written warning to Defendant. (Tr. 44, ...