UNITEDSTATES DISTRICT COURT
SOUTHERDISTRICT OF IOWA
UNITEDSTATES OF AMERICA, ) CRIMINAL ACTIONNO.
Plaintiff, ) 3:03-CR-80
JOHNADAMS XXX, )
SUPPLEMENTTO MOTION TO VACATE , SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 BY APERSON IN FEDERAL CUSTODY
TABLE OF CONTENTS
TABLEOF CONTENTS i
TABLEOF AUTHORITIES ii
I.ROADSIDE VIDEO 1
II.TROOPER GUILL’S TRIAL TESTIMONY 4
A.Ineffective Assistance of Counsel 6
B. Mr. XXX’s Consent to Search was notValid and No Reasonable Suspicion Existed to Otherwise Search His Vehicle. 7
1.Principles of Law 7
a. United States v. Jones, 234 F.3d 234 (5th Cir. 1999) 9
b. United States v. Dortch, 199 F.3d 193 (5th Cir. 1999) 10
c. United States v. Santiago, 310 F.3d 336 (5th Cir. 2002) 12
d. United States v. Perkins, 348 F.3d 965 (11th Cir. 2003) 12
e. United States v. Beck, 140 F.3d 1129 (8th Cir. 1998) 14
f. United States v. Jones, 269 F.3d 919 (8th Cir. 2001) 16
3. Instant Case 17
CERTIFICATEOF SERVICE 21
Illinoisv. Caballes, 543 U.S. 405 (2005) 7
Joshuav. Dewitt, 341 F.3d 430 (6th Cir. 2003) 6-7, 19
UnitedStates v. Beck, 140 F.3d 1129 (8th Cir.1998) 14-17, 19
UnitedStates v. Dortch, 199 F.3d 193 (5th Cir.1999) 8, 10-12, 17, 19
UnitedStates v. Jones, 234 F.3d 234 (5th Cir.1999) 9-10, 12, 17, 19
UnitedStates v. Jones, 269 F.3d 919 (8th Cir.2001) 8, 16
UnitedStates v. Lambert, 46 F.3d 1064 (10th Cir.1995) 8
United States v. Perkins, 348 F.3d 965 (11th Cir. 2003) 13-14, 18
UnitedStates v. Santiago, 310 F.3d 336 (5th Cir.2000) 8, 12-13, 17, 19
UnitedStates v. Wood, 106 F.3d 942 (10th Cir.1997) 19
JohnAdams XXX has finally obtained the videotapes of his roadside stop by TrooperBryan Guill which ultimately led to the seizure of the drugs for which he wasconvicted. The videotapes wereintroduced at trial as Government’s Exhibits 1 and 2 and a combined videotapeis submitted as Attachment A to this Supplement. As discussed below, the videotape establishes beyondperadventure that Mr. XXX had a meritorious suppression motion which his trialcounsel failed to research and pursue.
Thevideotape of the roadside stop reveals that Mr. XXX was driving a car, withSabrina Laprade as a passenger, that was stopped by Iowa State Trooper BryanGuill at approximately 11:14:00 onFebruary 17, 2003. When TrooperGuill approaches Mr. XXX’s vehicle, the following discussion takes placethrough the open driver’s window between Trooper Guill and Mr. XXX:
1. Trooper Guill tells Mr. XXX he wasgoing a little fast
2. Trooper Guill asks Mr. XXX where they(Mr. XXX and Ms. Laprade) are going and Mr. XXX responds that they are goingsomeplace warm because their heater is broken
3. Trooper Guill asks where they arecoming from and Mr. XXX responds, “El Paso.”
4. Trooper Guill asks where they arecoming from today and the response isunintelligible.
5. Trooper Guill asks where their luggageis and Mr. XXX responds that it is in the trunk.
6. Trooper Guill tells Mr. XXX that hisspeed was 90 miles per hour.
Atapproximately 11:15:14, Trooper Guillreturns to his vehicle to run a license check on Mr. XXX’s vehicle and arecords checks on Mr. XXX and Ms. Laprade. The dispatcher first responds at 11:19:42 and then at 11:22:25 responds again and tells Trooper Guill that Mr. XXXhas a prior conviction for marijuana sale in California. At approximately 11:23:58 before returning to the Mr. XXX’s vehicle,Trooper Guill asks the dispatcher to locate a drug dog to come to the scene.
Trooper Guill returns to Mr. XXX’s car at 11:24:31 and orders Mr. XXXto come back to the patrol car so that he can “explain the ticket.” When Trooper Guill and Mr. XXX returnto the patrol car, rather than “explain[ing] the ticket,” Trooper Guill peppers Mr. XXX with a barrage of questions,including:
-Whodid you buy the car from?
-Whydoesn’t the heater work?
-Whereare you coming from?
-Whydid you take that route?
-Whereare you going?
-Doyou have an insurance card?
-Whendid you buy the car?
-Howdo you know Ms. Laprade?
-Howlong have you been dating Ms. Laprade?
-Isthere anything in the car that I should know about?
-Doyou have any objection if I go through the car?
-Doyou still live in California?
Duringthe entire time, the videotape establishes that Trooper Guill retained Mr. XXX’s license.
At11:29:50, TrooperGuill again asks the dispatcherto locate a drug dog and tells the dispatcher, “Let them know it is prettygood!” At 11:33:28,the dispatcher notifies Trooper Guill thata dog has been located.
At11:34:01, Trooper Guill approachesthe passenger side of the vehicle and questions Ms. Laprade as to where she andMr. XXX were headed, where they came from and if there was anything in the carthat he should know about and he then brings Ms. Laprade back to the patrolcar.
From11:39:22-11:41:17, Trooper Guill searchesMr. XXX's car after obtaining his signature on a consent to search form. It is not until 11:42:18 that he tells Mr. XXX that he ordered a drug dogand that it would be there shortly. In the interim he asks Mr. XXX what he does for a living and Mr. XXXtells him he does “data entry.”
Thedrug dog arrives at approximately 12:08:24,almost one hour after Trooper Guill originally stopped Mr.XXX. During the entire time,Trooper Guill retained Mr. XXX’s license and resisted providing him thespeeding citation. Indeed, the speeding citation that wasultimately issued does not contain Mr. XXX’s signature and instead states “InJail.” See Attachment C hereto.
II.TROOPER GUILL’S TRIAL TESTIMONY
Trooper Guill testified at trial that, upon his stopof Mr. YYY’s vehicle, it appeared “odd” that “the passenger and driver werewearing a stocking hat and coat.” SeeTr. at 12:14-18. Of course, thevideotape indicates that Mr. YYY told him that the car’s heater was notworking. Trooper Guill admitted oncross examination that “with a broken heater in the middle of February itwouldn’t be unusual to be wearing a coat and stocking cap in a car.” Id.at 51:18-21.
TrooperGuill also testified that it was “odd” to him that the vehicle was registeredin Texas when both Mr. YYY and Ms. Laprade had California identification. Id.at 12:20-22. He also found it“odd” that there was no luggage visible in the vehicle. Id. at 12:23:24. Of course, the videotape indicates,quite naturally, that the luggage was ultimately found in the closed trunk ofthe sedan.
TrooperGuill claimed that the “driver appeared to be a little nervous”and “[t]he passenger avoided eye contact” with him. Id. at12:18-19. Nevertheless, heacknowledges on the videotape that Ms. Laprade was sleeping when he originallystopped the vehicle.
TrooperGuill testified that, given these “odd facts,” he brought Mr. YYY back to hispatrol car to question him. Id. at 16:2:14. He claims to have made “casual conversation” with Mr. YYY at this pointas to where he and Ms. Laprade were coming from and where they were going. Id. at 16:10-17. He alsoclaimed, although his testimony is belied by the videotape, that it was only after he took Mr. YYY to the patrol car that Mr. YYY toldhim the car’s heater was broken. Id. at 16:21-23.
TrooperGuill told the jury that, following the questioning in the patrol car,he obtained Mr. YYY’s oral and written consent to search the vehicle. Id.at 18:23-19:3. As noted above,Trooper Guill testified under oath at trial that it was only at this point thathe requested the K-9 unit, although the videotape clearly shows Trooper Guill’stestimony to be perjurious. Id. at 23:17-20. Likewise, Trooper Guill was adamant when he told the jury at trial thathe “did not search the vehicle or get into the vehicle before the dogarrived. Id. at 52:1-2. It was after.” The factthat the videotape shows Trooper Guill searching and entering the vehicleapproximately one-half hour before the arrival of the K-9 unit, clearlyindicates that this testimony is also false.
A.Ineffective Assistance of Counsel
There can be no question that the failure to pursuea suppression motion based upon an unconstitutional search of a vehiclefollowing a roadside stop that yields incriminating evidence constitutesineffective assistance of counsel. Indeed, the United States Court of Appeals for the Sixth Circuitaddressed this very question in Joshua v. Dewitt, 341 F.3d 430(6th Cir. 2003). In Joshua, an Ohio State Trooper, following a traffic stop ofJoshua’s vehicle for speeding, learned that Joshua was “a known drugcourier.” Id. at 434-435. In addition, the trooper claimed that Joshua was “nervous and restless”and that, when he questioned Joshua about his travel plans, the route “‘didn’tmake any sense what so ever.” Id. at 435. There was also a discrepancy in the rental car papers for the car Joshuawas driving. Id. at 443. Consequently, the trooper detained Joshua until he could arrange for aK-9 search for Joshua’s car. Id. at 435. The K-9 search ultimately discovered a large quantity of crackcocaine. Id.
TheSixth Circuit in Joshua held that,despite a state court ruling to the contrary and the deference it was requiredto give the state court findings under the Antiterrorism and Effective DeathPenalty Act of 1966, Joshua’s counsel was ineffective for failing to challenge the basis for his continueddetention pending the K-9 search of his vehicle. In reaching this holding, it concluded that the discrepancyin the rental car papers, Joshua’s alleged nervousness, and the trooper’sknowledge of Joshua’s criminal history did not support Joshua’s continueddetention until the arrival of a K-9 unit. Id. at 443-452. Similarly, the Court found that taking route that “made no sense to thetrooper” was “not a fact suggestive of illegal conduct.” Id. at 445.
Coincidentally,the “odd” factors alleged in Joshua areremarkably similar to the “odd” factors recounted by Trooper Guill in theinstant case. One of the onlydistinguishing factors is that Joshua, unlike Mr. YYY, was apparently not askedto consent to the ultimate search of his vehicle. But, as explained below, given the facts of the instant casethis distinction is without Fourth Amendment relevance.
B. Mr. YYY’s Consent to Search was notValid and No Reasonable Suspicion Existed to Otherwise Search His Vehicle.
1.Principles of Law
There are two well established principles of lawthat should guide this Court’s determination as to whether Mr. YYY would havehad a valid motion to suppress.
First,when a person is stopped for a traffic violation “[a] seizure that is justifiedsolely by the interest in issuing a...ticket to the diver can become unlawfulif it is prolonged beyond the time reasonably required to complete themission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). Indeed, cases from this circuit as well as other circuitsestablish that a traffic stop may not last any longer than is necessary tocomplete the investigative purposes of the traffic stop unless, while that investigation is being completed, thestate can show that the investigating officer developed “reasonable suspicion”to detain the person for some other reason. See, e,g., United States v. Jones, 269 F.3d 919, 925 (8th Cir. 2001) (“After TrooperDeWitt had completed this initial investigation and determined that Jones wasneither tired nor intoxicated, that his license and registration were valid,and that there were no outstanding warrants for his arrest, then the legitimateinvestigative purposes of the traffic stop were completed.”).
Second,once a court determines that a traffic stop should have concluded under theprinciple outlined above, a person’s consent to the search of his vehiclecannot be considered voluntary when the investigating officer does not returnthe person’s license prior to obtaining the consent. See United States v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999), citing, United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995). Indeed, as noted by the United StatesCourt of Appeals for the Tenth Circuit in Lambert what began as a consensual encounter quickly becamean investigative detention once the agents received Mr. Lambert's driver'slicense and did not return it to him. Id.
The above principles of law are perhaps bestexplained in United States v. Santiago, 310 F.3d 336, 341-42 (5th Cir. 2000):
Duringa traffic stop, an officer can request a driver's license, insurance papers, andvehicle registration; he or she may also run a computer check and issue acitation. The officer may detainand question the subjects of a traffic stop during the time a computer check isbeing conducted.....
However,a Fourth Amendment violation occurs when the detention extends beyond the validreason for the stop. Once acomputer check is completed and the officer either issues a citation ordetermines that no citation should be issued, the detention should end and thedriver should be free to leave. Inorder to continue a detention after such a point, the officer must have areasonable suspicion supported by articulable facts that a crime has been or isbeing committed. (citations omitted)
There are also several cases on point, in additionto the Joshua case discussed above, that should guide thisCourt’s determination as to whether Mr. YYY would have had a valid motion tosuppress.
a. United States v. Jones, 234 F.3d 234 (5th Cir. 1999)
Jones is almost directly onpoint. In that case, the driver,Daniel, was stopped for speeding. Jones, 234 F.3d at 237. The officers that stopped Daniel asked him and hispassenger, Jones, a series of questions. Id. The officers took Daniel and Jones backto the patrol car and “initiated a conversation with Daniel concerning theissuance of the warning ticket” and requested a records check while asking moreprobing questions of Daniel and Jones Id. at 237-38. Three minutes after the records check was completed, the officers askedDaniel if he would consent to the search of the vehicle and he didconsent. Id. at 238. Just like the instant case, at the time the officers in Jones requested permission to search, they had retainedDaniel’s license and warning citation. Id. Ultimately, drugs were discovered. Id.
The Fifth Circuit first held that Daniel’s consent tosearch was the fruit of an unlawful detention because it occurred after the speeding investigation should have beencompleted and while the officers retained his license and the ticket:
Atleast three minutes transpired from the response by the dispatcher to the timethat Russell asked for consent to search the car. Except for obtaining Daniel'ssignature, Russell had completed the warning citation. But instead of obtainingDaniel's signature and returning his driver's license and rental agreement,Russell chose the more dilatory tactic of exiting the car, returning Jones'sidentification papers before doing the same for Daniel, and, most importantly,repeating to Jones the same questions that were asked of him before. After the computer checkswere finished, any delay that occurred with respect to the warning citationbeing meted out was due to the officers' action or inaction. The basis for thestop was essentially completed when the dispatcher notified the officers aboutthe defendants' clean records, three minutes before the officers sought consentto search the vehicle. Accordingly, the officers should have ended thedetention and allowed the defendants to leave. And the failure to release thedefendants violated the Fourth Amendment. The district court erred by not soholding.
Id. at 241.
TheFifth Circuit then considered whether, regardless of consent, the officers had“reasonable suspicion” to search the car based upon the fact that both Danieland Jones gave inconsistent answers to questions and that Daniel had a priorarrest on crack cocaine charges. It held that these reasons did not constitute “reasonable suspicion” to independentlysupport the search in that case.” Id. at 248-49.
b. United States v. Dortch, 199 F.3d 193 (5th Cir. 1999)
InDortch, the defendant was legitimatelystopped for a traffic violation. Dortch, 199 F.3d at 195. Like the instant case, following the stop, the officer notedthat the car was not registered to either the driver, Dortch, or thepassenger. Id. at 195. Like the instant case,the driver and the passenger gave conflicting answers to where they hadbeen. Id. at 196. Like the instant case, the officer who stopped the car did not see anyluggage . Id. Like is the instant case, the officer claimed Dortch was “nervous.” Unlike the instant case, thepassenger and driver also gave conflicting answers as to how they came intopossession of the car. Id. Whilethe officer was running a records check, he obtained Dortch’s permission tosearch the trunk but not the vehicle. Id. The officer then informed Dortch that,although he was free to go, hiscar would be detained pending a K-9 search. Id. Ultimately, the K-9 alerted to drugs onDortch’s person, rather than in his vehicle, and Dortch consented to a pat downof his body where drugs were located. Id.
Dortchappealed the denial of his suppression motion. The Fifth Circuit first noted correctlythat Dortch could not successfully claim that any detention pending the computer check on his license wasimpermissible. Id. at 198. Nevertheless, the Court next noted that, once the records check wascompleted, the continued detention of Dortch had to be supported by reasonablesuspicion. Id. at 199. It then held that, “the confusion as to the relationship of Dortch tothe proper renter of the vehicle, combined with Dortch's absence as anauthorized driver on the rental agreement and the allegedly inconsistent answerabout the stay in Houston, gave rise only to a reasonable suspicion that thecar might have been stolen” and not that the driver was involved with drugactivity to justify detention pending the arrival of the K-9. Id. Likewise, it held thatDortch’s alleged “nervousness” also did not justify continued detention afterthe traffic stop investigation should have concluded.
Forpurposes of applying Dortch to theinstant case, it is significant that the government argued that Dortchconsented to the search of his body. Nevertheless, the Fifth Circuit held that Dortch hadnot been free to go at the time he gave consent because the officer hadretained his license and rental papers at the time consent was obtained and,consequently, Dortch’s consent was fruit of the illegal detention that tookplace following the time he should have been released when the records checkwas completed. Id. at 202.
c. United States v. Santiago, 310 F.3d 336 (5th Cir. 2002)
TheFifth Circuit, in Santiago, again addressed the issues that confront this Courtin the instant case. There, aLouisiana State Trooper conducted a traffic stop of Santiago and his vehiclebecause of a flashing light emanating from the vehicle. Id. at 337-38. Uponapproaching the vehicle, the trooper noted that the light was from a crystalball hanging from the car’s rear view mirror and concluded that this wasillegal under Louisiana law. Id. Thetrooper proceeded to ask Santiago and his passenger numerous questions. Id. After some time, thetrooper ran a check on Santiago’s license. He then proceeded to ask Santiago additional questions oncethe records check was complete and obtained Santiago’s consent to search thevehicle after asking these additional questions. Id. at339.
TheFifth Circuit, like it did in Jones and Dortch, concluded that, once the records check wascomplete, the stop should have been concluded. Id. at 342(“Trooper Raley's original justification for the stop ended, however, at thetime the computer check was completed. At that point, there was no reasonable or articulablesuspicion that Santiago was trafficking in drugs, but Raley nonethelesscontinued his interrogation after the original justification for the stop hadended.”). It then held that,because the consent to search occurred during the illegal detention, it did not support theresulting search. Id. at 343 (“[U]nder the circumstances of this case,the consent to search was not an independent act of free will, but rather aproduct of the unlawfully extended detention.”).
d.United States v. Perkins,348 F.3d 965 (11th Cir. 2003)
Here, an Alabama patrolman stopped Perkins for atraffic violation. Perkins,348 F.3d at 967. After thepatrolman completed a driver’s license check and issued a warning ticket and“he was finished with that portion of his investigation relating to the trafficstop,” the patrolman “continued todetain Perkins because of his nervousness; what he perceived as Perkins'evasive behavior in response to his questions; and his hunch that Perkins wasbeing untruthful about his destination.” Id. at 968. Like Trooper Guill in this case, thepatrolman then pursued his hunches with further questioning. Ultimately, the patrolman in Perkins asked for permission to search the car and Perkinsrefused. Id. The patrolmanthen requested a K-9 search that resulted in the seizure of drugs. Id. The United States Courtof Appeals for the Eleventh Circuit held the search unconstitutional.
ThePerkins Court first concluded that “thecircumstances here do not give rise to the requisite reasonable suspicionjustifying continued detention of Perkins and [his passenger] after the warningticket had been issued.” Id. at 970. The government then argued that the following circumstances created“reasonable suspicion” to extend the stop beyond the time necessary to concludethe traffic violation:
(1)Perkins' nervousness; (2) the "odd behavior" of Perkins in repeatingthe questions [the patrolman] asked him; (3) Perkins' possession of a Floridadriver's license while claiming to live in Montgomery, Alabama; and (4) the"inconsistent" statements from Perkins and [his passenger] withregard to whom they were going to see in Greenville, Alabama.
Id. TheEleventh Circuit quickly rejected this argument. Id. (“We find that these circumstances,separately or cumulatively, cannot support a legitimate inference of furtherillegal activity that rises to the level of objective, reasonable suspicionrequired under the Fourth Amendment.”)
e. United States v. Beck, 140 F.3d 1129 (8th Cir. 1998)
In Beck, the United States Court ofAppeals for the Eight Circuit confronted a traffic stop of the defendant by anArkansas patrolman. UnitedStates v. Beck, 140 F.3d 1129, 1332 (8thCir. 1998). After speaking toBeck, the officer returned to his patrol car to run a records check. Id. Following the completionof the check, he returned Beck’s license and rental car agreement and askedpermission to search the vehicle. Id. Becknervously declined to give consent. Id. The patrolman then called for a K-9 unit and the dog,once it arrived, alerted on Beck’s car. Id. at 1332-33.
TheEight Circuit first noted “[u]nless Officer Taylor had a reasonably articulablesuspicion for believing that criminal activity was afoot, continued detentionof Beck became unreasonable after he had finished processing Beck's trafficviolation.” Id. at 1134. Nevertheless, it also noted (as distinguished from this case), that theinitial questioning of Beck after the patrolman returned to the vehicle was“consensual” but only because “Officer Taylor had already returned Beck’sdriver’s license and rental agreement” at this juncture and, therefore, Beckwas free to go at the time he gave his consent. Id. at1135. It then went on to holdthat, although the encounter was consensual because Beck’s paperwork wasreturned, it became non-consensual when Beck was informed that, if he refusedto consent to a search, a K-9 unit would be called. Id.
Becausethe search took place after the detention of Beck became non-consensual, theEight Circuit examined the facts to see if there was independent “reasonablesuspicion” to justify the non-consensual detention. Id. at 1136-40. Some of these factors match the “odd”factors allegedly present in this case, but there were many additional factorsthat might have supported a “reasonable suspicion” determination in Beck that was not present in the instant case:
Here,the government contends that reasonable suspicion for Beck's renewed detentionarose from the following seven circumstances: (1) Beck was driving a rental carwhich had been rented by an absent third party; (2) the Buick was licensed in California; (3) there was fastfood trash on the passenger side floorboard; (4) no visible luggage in thepassenger compartment of the automobile; (5) Beck's nervous demeanor; (6)Beck's trip from a drug source state to a drug demand state; and (7) OfficerTaylor's disbelief of Beck's explanation for the trip.
Id. at 1137. Still the Eight Circuit found that these facts did notconstitute independent “reasonable suspicion” for thesearch Beck’s vehicle. Id.at 1137-40.
Someof the Court’s observations regarding the factors alleged to support“reasonable suspicion” in Beck areapplicable to the “odd” facts identified in the instant case. First, it held that the fact that therental car was in some other person’s name was not “inherentlysuspicious.” Id. at 1137. Second, it observed that it had previously noted that “out-of-stateplates are consistent with innocent behavior and not probative of reasonablesuspicion.” Id. Third,it dismissed the “no luggage in the passenger compartment” factorout-of-hand. Id. at 1139 (“[W]e think that this circumstance failsto generate any suspicion of criminal activity. Indeed, motorists are specificallyadvised by law enforcement agencies, as a crime prevention tip, not to leavetheir luggage in view.”). Finally,it was equally dismissive of the officer’s subjective assessment of Beck’snervousness. Id. (“It certainly cannot be deemed unusual for amotorist to exhibit signs of nervousness when confronted by a law enforcementofficer.”).
f. United States v. Jones, 269 F.3d 919 (8th Cir. 2001)
AMissouri trooper stopped Jones for moving violations that might have beencaused by intoxication. Jones, 269 F.3d at 922. While conducting a records check on Jones, the trooper engaged him in conversation. Id. The trooper thenreturned Jones’ paperwork and issued him a warning citation. Id. at 923. He then askedpermission to search Jones’ vehicle and Jones declined. Id. The trooper then calleda K-9 unit and the drug dog alerted to drugs. Id. at923-924.
TheEight Circuit first noted that a seizure had taken place once Jones refusedpermission to search his vehicle. Id. at 926. It then reviewed whether there was independent “reasonable suspicion” tosupport the seizure. Id. at 926-29. The government relied upon the following alleged factors: “ Jones slowedwhile being passed, his camper wheels crossed traffic lines, he gave aninconsistent answer regarding his prior arrest record, and he acted nervouslyupon being detained and questioned inside Trooper DeWitt's patrol car.” The Court held that the factors did notconstitute “reasonable suspicion” to justify the seizure. Id. at 929 (“Trooper DeWitt's detention of Jones past the point necessaryto complete his traffic stop investigation exceeded the scope of a lawfullyinitiated traffic stop. The extended investigative detention was unsupported bya reasonable, articulable suspicion that criminal activity was afoot andtherefore violated Jones's Fourth Amendment right to be free from unreasonableseizure.”).
3. Instant Case
Applying the foregoing legal principles as well asthe precedent discussed above, there can be no doubt whatsoever that Mr. YYYhad been “seized” at the time the K-9 unit was called to his vehicle. Mr. YYY does not complain of theinitial stop nor does he complain of the initial questioning prior to therecords check being run. Nevertheless, once Trooper Guill processed the traffic violation andcompleted the records check, he should have issued Mr. YYY his citation,returned his license and allowed him to proceed. When Trooper Guill did not allow Mr.YYY to proceed after processing the traffic violation, an illegal seizure hadoccurred.
Next,despite Mr. YYY’s consent to the search of his vehicle, such consent was notvalid in that it was fruit of the illegal seizure. As noted consistently by the Fifth Circuit, in Dortch,Jones, and Santiago, the fact that the detention continued past the timeit should have been concluded makes any consent obtained during such a periodillegal. Likewise, it issignificant that, at the time consent was obtained in this case, Trooper Guillhad not returned Mr. YYY’s license. Compare, Beck, 140 F.3d at 1135 (Consensual because license was returned).
Therefore,the only real question is whether there was independent “reasonable suspicion”to detain Mr. YYY for almost an hour in order to conduct a K-9 search of hisvehicle. At trial, the trooperidentified the following factors: (1) the vehicle was registered in Texas whenboth Mr. YYY and Ms. Laprade had California identification; (2) there was noluggage present in the vehicle; (3) the “driver appeared to be a littlenervous” and “[t]he passenger avoided eye contact” with him. Moreover, giving the governmentthe benefit of the doubt, Trooper Guill learned of a fourth factor- that Mr.YYY had a conviction for marijuana sale- after conducting the records check butprior to calling for a drug dog and prior to returning Mr.YYY’s vehicle wherehe could have concluded the traffic stop.
Ofcourse, factors 2 and 3 were dismissed out of hand by the Eight Circuit in Beck. As tothe factor 1, given that Mr. YYY was now living in Texas it would not beunusual for him to have bought a car in Texas. The simple fact that he did not change his driver’s licensedoes not indicate criminal behavior. See Perkins, 348 F.3d at 971 (“[T]here are many reasons one mayhave failed to change the license including lack of time because of a recentmove, cost, inconvenience, carelessness, or simple laziness.”). Finally, a driver’s criminal historyhas been held not to be sufficient to create “reasonable suspicion.” As noted by the United States Court ofAppeals for the Tenth Circuit when analyzing “reasonable suspicion” factors tojustify a traffic stop:
Wehave previously cautioned that prior criminal involvement alone is insufficientto give rise to the necessary reasonable suspicion to justify shifting thefocus of an investigative detention from a traffic stop to a narcotics orweapons investigation. "Ifthe law were otherwise, any person with any sort of criminal record...could besubjected to a Terry-type investigativestop by a law enforcement officer at any time without the need for any otherjustification at all." Giventhe near-complete absence of other factors which reasonably gave rise tosuspicion, the fact that Mr. Wood had previously been convicted of narcoticsviolations adds little to the calculus.
UnitedStates v. Wood, 106 F.3d 942, 948 (10thCir. 1997). See alsoJones, 234 F.3d at 24849.
Asset forth above, there was no basis to detain Mr. YYY between what should havebeen the end of the traffic investigation at 11:24 and the alert of K-9 Freonat 12:09. Consequently, Mr. YYYhad a meritorious suppression motion, supported by precedent, that would haveresulted in the suppression of the drugs that were ultimately seized from hisvehicle. Moreover, such a motionwould have been case dispositive.
/s/ F. Clinton Broden
CERTIFICATE OF SERVICE
Icertify that on July 20, 2006, I caused the foregoing document to be served byelectronic means, on:
UnitedStates Attorney’s Office
110East Court Avenue
DesMoins, Iowa 50309
/s/ F. Clinton Broden