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United States v. Constanza

United States District Court, M.D. Georgia, Macon Division

June 15, 2018

UNITED STATES OF AMERICA,
v.
GUSTAVO CONSTANZA and MILFRANDEL CEDANO, Defendants.

          ORDER

          MARC T. TREADWELL, JUDGE.

         Defendants Gustavo Constanza and Milfrandel Cedano have moved to suppress evidence found in a vehicle in which Constanza was the passenger and Cedano was the driver. Docs. 32; 60.[1] For the following reasons, the motions are DENIED.

         I. FINDINGS OF FACT

         The Court finds that the evidence admitted at the hearing on the Defendants' motions establishes the following facts by a preponderance of the evidence. United States v. Beechum, 582 F.2d 898, 913 n.16 (5th Cir. 1978) (citing Lego v. Twomey, 404 U.S. 477, 489 (1972)).[2]

         On August 4, 2016, at approximately 11:45 am, Sergeant Anthony Thompson, Sergeant Jeremy Haire, and Thompson's drug-detection canine, Jazz, of the Lamar County Sheriff's Office were patrolling the southbound lanes of Interstate 75 in a marked patrol car. Docs. 41 at 1, 3; 64 at 14:9-14, 20:22. Thompson testified that while driving, he saw a gold Jeep “cross over the yellow solid fog line located on [his] side of the roadway on several occasions.”[3] Doc. 64 at 14:13-19. He “proceeded to get behind the vehicle and activated [his] emergency equipment to conduct a traffic stop.” Id. According to Thompson, as soon as the emergency equipment is activated, a video recorder on the patrol car begins recording, though he did not realize until after the fact that there was no audio. Id. at 14:2-8. The video footage, which was admitted into evidence as “Government Exhibit 3” at the hearing, shows the Jeep pull over to the left shoulder of the interstate and come to a full stop. Docs. 61-4 at 0:15-0:26; 64 at 25:3-21. After running the vehicle's tag on the computer in his patrol car and informing Dispatch of the tag, Thompson approached the vehicle from the driver side, explained the reason for the stop to the driver, Cedano, and asked for his driver's license. Doc. 64 at 34-45, 63:19-22, 65:3-6. Thompson testified that as Cedano was handing his driver's license, Cedano's hand “was shaking terribly” and his “voice was starting to murmur or stutter.” Doc. 64 at 16:23-17:4. Thompson then noticed at the top of Cedano's driver's license the words, “Limited Permit, ” in big bold letters. Id. at 17:4-6. When he asked Cedano to step out and come to the rear of the vehicle so that he could hear him better, Cedano complied and confirmed he had a limited permit. Id. at 17:7-18:15. Because Thompson knew, based on his experience and training, that a limited permit could only be used for work, school, or medical reasons, he asked several questions, including where Cedano was headed, to determine whether Cedano was in violation of his limited permit. Id. at 17:24-18:5, 18:1-3. Once Cedano told Thompson he was headed south so that the passenger, Constanza, could purchase a vehicle, Thompson concluded Cedano was in violation of his limited permit and decided the Defendants “were no longer free to go at that time.”[4] Id. at 18:6-22, 43:4-13.

         In the meantime, while Thompson was questioning Cedano, Haire approached the driver side of the vehicle to speak with Constanza. Doc. 61-4 at 1:10-1:40. Haire testified that Constanza provided his driver's license, which was later found to be suspended, and stated he and Cedano were traveling south so that Cedano could purchase a vehicle. Doc. 64 at 19:1-7, 82:3-13. Haire then joined Thompson and Cedano at the rear of the vehicle where Haire learned that Constanza's explanation of why they were traveling south contradicted Cedano's. Docs. 61-4 at 1:42-1:1:55; 64 at 82:14-21. Haire asked Cedano whether the vehicle belonged to him. Doc. 64 at 113:8-16. According to Haire, after Cedano replied “no” and stated he did not know who owned the vehicle, Cedano began “holding his own hands and hugging himself nervously.”[5] Id. at 93:10-22, 113:8-114:6. Haire testified that Constanza also told him the vehicle did not belong to him. Id. at 120:19-121:1. At this point, only about three minutes had elapsed since the officers approached the vehicle. Doc. 61-4 at 0:25-3:15.

         Because of the inconsistent stories and the nervous behavior exhibited by the Defendants, Haire asked Cedano if there were any drugs in the vehicle. Doc. 64 at 82:22-83:5. Receiving no response, Haire asked if he could search the vehicle, to which Cedano replied, “No.” Id. at 83:6-9.

         At that point, about four minutes into the stop, Thompson, who also testified he observed “criminal indicators, ” such as stuttering of speech and lots of hand movement, deployed Jazz to conduct a free air sniff around the vehicle. Docs. 61-4 at 4:20; 64 at 75:9-11. Thompson walked Jazz around the vehicle and, approximately twenty-two seconds into Jazz's sniff, Jazz alerted, by sitting down, indicating drugs were inside the vehicle. Doc. 61-4 at 4:25-4:47. The officers then searched the vehicle and, within ten seconds, Haire found a brown paper bag containing suspected methamphetamine under the driver's seat, “just slightly tucked behind the driver's seat.” Docs. 61-4 at 5:27-5:36; 64 at 83:19-21. The officers immediately placed the Defendants in handcuffs and arrested them. Doc. 61-4 at 5:35-5:56. Approximately five minutes had elapsed from the time the officers initiated the traffic stop to when the arrest was made. Id. at 0:25-5:35.

         After making the arrest, Thompson ran the driver's and the passenger's information and contacted Dispatch. Doc. 64 at 22:24-23:12. When he learned from Dispatch that Cedano did in fact have a limited permit and that Constanza was wanted on a trafficking in methamphetamine charge, Thompson called for a tow truck. Doc. 64 at 76:10-19. According to Thompson, “if there is not another licensed driver that can take the vehicle at that time, ” it is their policy to do an inventory search before the vehicle is impounded by the wrecker. Id. at 23:19-24. There is no evidence that the Lamar County Sheriff's Office has a written policy or procedure for impounding vehicles and inventorying their contents. But pursuant to their “policy, ” the officers conducted an initial inventory search of the vehicle at the scene. Id. at 76:19-21. But because it was unsafe to conduct an inventory search while the vehicle was parked close to the traffic lanes and there was ongoing traffic, the vehicle was taken to the Sheriff's Office where Thompson and Lieutenant Chad Payne continued the inventory search. Id. at 24:3-9. Thompson testified that during the inventory search at the Sheriff's Office Lieutenant Payne told him he located a “trap”-a hidden compartment-at the rear of the vehicle. Id. at 24:11-14. Specifically, the trap was found behind a bumper, but the trap was discoverable without having to remove the bumper. Id. at 77:22-78:4. While there was nothing inside the hidden compartment, based on his training and experience, Thompson concluded that “traps” are “used by criminals to conceal criminal activity, whether it be narcotics, currency.” Id. at 24:15-19, 78:9-11. On September 21, 2017, a grand jury indicted the Defendants with one count of possession with intent to distribute methamphetamine. Doc. 1.

         II. MOTION TO SUPPRESS STANDARD

         The movant bears the initial burden of persuading the court, through specific factual allegations and supporting evidence, that the evidence should be suppressed. United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir. 1977). Once the movant establishes a basis for the motion, the burden then shifts to the Government to prove by a preponderance of the evidence that the search or seizure of evidence was legally and factually justified. United States v. Freire, 710 F.2d 1515, 1519 (11th Cir. 1983) (citation omitted) (“Upon a motion to suppress evidence garnered through a warrantless search and seizure, the burden of proof as to the reasonableness of the search rests with the prosecution. The Government must demonstrate that the challenged action falls within one of the recognized exceptions to the warrant requirement, thereby rendering it reasonable within the meaning of the [F]ourth [A]mendment.”); United States v. Matlock, 415 U.S. 164, 177 n.14 (1974) (citation omitted) (“[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence.”).

         III. DISCUSSION

         In their motions to suppress, the Defendants argue that the search of the vehicle following a traffic stop violated their Fourth Amendment rights and, thus, the evidence seized from the search should be excluded under the exclusionary rule.[6] Docs. 32; 60.

         The Fourth Amendment to the United States Constitution protects the right of persons to be free from unreasonable searches and seizures. U.S. Const. amend. IV. “Under the exclusionary rule, evidence obtained in an encounter that is in violation of the Fourth Amendment, including the direct products of police misconduct and evidence derived from the illegal conduct, or ‘fruit of the poisonous tree, ' cannot be used in a criminal trial against the victim ...


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