United States District Court, N.D. Georgia, Newnan Division
MAGISTRATE JUDGE'S REPORT, RECOMMENDATION, AND
RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE.
Carlos Montelongo-Guzman (“defendant”) is charged
in a one-count indictment with intent to distribute a
Schedule II controlled substance, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2.
[Doc. 1].Defendant has moved to suppress statements
and evidence obtained following a traffic stop that occurred
on August 15, 2018. [Docs. 18 & 19]. After an evidentiary
hearing held on March 22, 2019,  the parties filed
post-hearing briefs on the motions to suppress. See
[Docs. 25, 28, & 29]. For the reasons that follow, it is
RECOMMENDED that defendant's motions to
suppress, [Docs. 18 & 19], be DENIED.
STATEMENT OF FACTS
August 15, 2018, at approximately 1:35 p.m., Georgia State
Patrol (“GSP”) Trooper T.J. Hamilton
(“Trooper Hamilton”) was watching northbound
traffic on Interstate 85 “around mile marker 38”
as part of the criminal interdiction unit responsible for
that segment of the highway. (Tr. at 8-9). An Infiniti QX 80
SUV traveling in the far-right lane-later determined to be
driven by defendant-caught Trooper Hamilton's attention
when the driver “suddenly hit the brakes” after
coming within view of Trooper Hamilton's patrol car. (Tr.
at 9-11, 31). As the SUV drove by, Trooper Hamilton observed
that both individuals inside “appeared to be
nervous” and “were sitting upright in the
seat.” (Tr. at 10, 33-34). After passing him, the SUV
began to “weave in [its] lane” and approached the
rear of a tractor-trailer. (Tr. at 10-11, 35). Trooper
Hamilton testified that this behavior suggested the driver
was engaged in “mirror driving, ” which he
explained refers to the driver focusing on his rear-view
mirror to see whether the patrol car was about to pursue him,
rather than focusing on the road ahead. (Tr. at 10). In
Trooper Hamilton's opinion, the SUV closed to within
“a few vehicle” lengths behind the
tractor-trailer and continued to “clos[e the]
distance” before eventually changing lanes and passing
the tractor-tailor. (Tr. at 11-12, 35). The SUV was
“definitely within” the standard three-second
rule, which Trooper Hamilton testified was the rule
“used as an evaluation of whether someone is following
a vehicle too closely” and described it as the time it
takes from when the “rear bumper of the vehicle in
front” passes “a fixed object on the side of the
road” until “the front bumper of [the] vehicle
[behind] passes that same fixed object.” (Tr. at 11,
Hamilton pulled onto the interstate and began following the
SUV to verify the license plate and vehicle information. (Tr.
at 12). After failing to receive any information from
dispatch because the “in-car [Georgia Crime Information
Center (‘GCIC')] system was down, ” Trooper
Hamilton continued to follow and kept pace with the SUV for
about a mile. (Tr. at 12-13, 39). During that time, the SUV
traveled at approximately 65 miles per hour through a
construction zone, a stretch of the interstate where the
posted speed limit was 60 miles per hour. (Tr. at 12-13,
55-56). Trooper Hamilton verified the speed of the SUV using
the “Stalker Radar” affixed to his patrol car.
(Tr. at 13, 39). He then initiated a traffic stop by
activating his blue lights. (Tr. at 13-15); see also
(Gov. Ex. 1).
the SUV came to a stop, Trooper Hamilton approached it on the
passenger side and introduced himself, while standing at the
front passenger window. (Tr. at 14, 44; Gov. 1 at 1:11-1:22).
Defendant was in the driver's seat and a female was in
the front passenger seat. See (Gov. Ex. 1). Trooper
Hamilton asked if defendant had his license and whether the
vehicle belonged to him. (Tr. at 14; Gov. Ex. 1 at
1:22-1:25). Defendant replied the vehicle was a rental, so
Trooper Hamilton asked if defendant had any rental papers and
added that he could not get any information on
defendant's tag. (Tr. at 14; Gov. Ex. 1 at 1:25-1:39).
Defendant handed Trooper Hamilton the rental agreement. (Tr.
at 19-20; Gov. Ex. 1 at 1:55). Responding to a remark made by
defendant, Trooper Hamilton explained that he pulled
defendant over for speeding and for following “that
18-wheeler pretty close.” (Gov. Ex. 1 at 2:22-2:45).
Defendant advised that he was headed to Atlanta, and Trooper
Hamilton asked defendant about the purpose of his trip. (Tr.
at 20-21; Gov. Ex. 1 at 2:48-3:03). Trooper Hamilton noticed
that the rental agreement showed a one-way rental from Texas
to Rhode Island, so Trooper Hamilton inquired further about
that apparent discrepancy. (Tr. at 20-21; Gov. Ex. 1 at
3:03-3:23). Trooper Hamilton attempted to determine whether
defendant and the female passenger resided in either
California or Houston, (Gov. Ex. 1 at 3:34), and defendant
indicated that he lived in California, (Gov. Ex. 1 at 3:36);
[Doc. 25 at 4]. Continuing the background check, Trooper
Hamilton told defendant to “hang on one second”
while he returned to his patrol car. (Gov. Ex. 1 at 3:51).
For the next several minutes, Trooper Hamilton can be heard
on the dash-camera recording reentering his patrol car and
relaying information to the El Paso Intelligence Center
(“EPIC”) concerning defendant and his
vehicle. (Gov Ex. 1 at 4:08-19:26). Trooper
Hamilton then received notice of a possible criminal arrest
warrant for defendant. (Gov. Ex. 1 at 14:32-15:19; Tr. at 20,
22). He attempted to gain identification information by
requesting either a photograph or detailed description. (Gov.
Ex. 1 at 16:40-16:50).
learning about the arrest warrant, Trooper Hamilton returned
to defendant's vehicle to continue their conversation.
(Gov. Ex. 1 at 19:33). Defendant stepped out of the SUV and
first showed Trooper Hamilton a copy of the rental
registration on defendant's cell phone. (Gov. Ex. 1 at
19:45-20:04). Trooper Hamilton apologized for the delay,
informed defendant that their system for running people was
down, and asked if defendant had a pending arrest warrant out
of California for a narcotics-related offense. (Gov. Ex. 1 at
20:05-20:30). Trooper Hamilton further explained that there
appeared to be an active arrest warrant for someone with the
same last name as defendant, his driver's license number,
and his date of birth, but the name
“Montelongo”appeared as a given name on the
warrant instead of as part of a hyphenated last name. (Gov.
Ex. 1 at 20:30-21:30). Trooper Hamilton also explained that
he was waiting for a photograph from the warrant. (Gov. Ex. 1
at 21:40). Trooper Hamilton then asked defendant to run his
fingerprints through a handheld scanner so that he could
confirm whether the warrant was for defendant and proceeded
to scan defendant's fingerprints. (Gov. Ex. 1 at
21:55-23:33; Tr. at 25, 48). Defendant denied any knowledge
of a 2013 arrest warrant. (Gov Ex. 1 at 23:15-23:28).
Hamilton returned to his patrol car with the scanner while
defendant stood and waited on the side of the interstate.
(Gov. Ex. 1 at 23:33-28:00). Trooper Hamilton later rejoined
defendant and asked to try the fingerprint device a second
time. (Gov. Ex. 1 at 28:08-28:54; Tr. at 48-49). While
scanning defendant's prints, Trooper Hamilton asked
defendant if there was anything illegal in the vehicle and
received a negative response. (Gov. Ex. 1 at 28:39-28:43).
After another brief trip to his patrol car, Trooper Hamilton
returned and explained it could take a while to come back and
that “the files [were] down for some reason.”
(Gov. Ex. 1 at 29:01-30:00). Trooper Hamilton stated that the
warrant was for possession of dangerous drugs and that is why
he had asked if there was anything illegal in the vehicle,
and he then asked if defendant had a problem with him
searching the SUV. (Gov. Ex. 1 at 30:05-30:20). Defendant
responded that he just wanted to get on the road and that he
had not done anything illegal. (Gov. Ex. 1 at 30:20-30:35).
Trooper Hamilton pointed out the traffic violations, which
they further discussed, (Gov. Ex.1 at 30:35-31:18), and the
reasons why defendant's license appeared to be associated
with an arrest warrant, (Gov. Ex. 1 at 31:18-33:08). After
defendant asked how long this usually takes, Trooper Hamilton
stated he would go back to his patrol car and check. (Gov.
Ex. 1 at 33:12-33:26). But, before Trooper Hamilton got back
in his patrol car, defendant asked him to inform the female
passenger what was going on. (Gov. Ex. 1 at 33:26-33:38).
Trooper Hamilton told the passenger the reason for the delay
and then returned to his patrol car. (Gov. Ex. 1 at
thereafter, Trooper Munoz arrived on the scene and Trooper
Hamilton summarized the situation to him, including that the
“system [was] down” and he “was advised
that there [was] a warrant associated to [defendant's]
driver's license and his birth date, ” but the name
was “showing Carlos Guzman” and
“Montelongo, his second last name, [was] showing as a
middle.” (Gov. Ex. 1 at 34:55-35:38; Tr. at 28). While
Trooper Hamilton remained inside his patrol car for another
minute, Trooper Munoz spoke with defendant. (Gov. Ex. 1 at
35:39-37:00). Trooper Hamilton then exited his patrol car and
placed defendant in handcuffs, explaining that the warrant
had been confirmed, and that they would “now  just
wait to see if they want to come pick you up.” (Gov.
Ex. 1 at 37:00-38:54, 40:56-41:05; Tr. at 26).
waiting to receive information on whether the California
warrant required extradition, Trooper Munoz explained to
defendant that until extradition was confirmed, “You
are not technically under arrest.” (Gov. Ex. 1 at
41:30-42:30). He reiterated that, “You're detained,
” and that defendant was only wearing handcuffs for
officer safety. (Gov. Ex. 1 at 42:30-42:42). Defendant
replied, “I understand that.” (Gov. Ex. 1 at
42:34). Trooper Munoz continued by explaining, “Right
now, we're assuming that . . . you're gonna drive
away from here until they [California] say you can't . .
. I've seen them not extradite people.” (Gov. Ex. 1
at 43:43-44:02). During this exchange, defendant admitted
driving above the 60 miles per hour speed limit. (Gov. Ex. 1
at 44:35; Tr. at 55).
46 minutes into the traffic stop, Trooper Johnathan Nelms
(“Trooper Nelms”) arrived on the scene with his
K-9 named Jack. (Gov. Ex. 1 at 46:47; Tr. at 57, 60). At
that point, Trooper Hamilton was still waiting to hear about
extradition. (Gov. Ex. 1 at 47:10; Tr. at 27). Trooper Nelms
and Jack conducted a free air K-9 sniff of the SUV by making
two counterclockwise passes around the vehicle. (Tr. at
60-61, 68; Gov. Ex. 1 at 48:18-50:10). During the second
pass, Jack gave a positive alert by sitting down near the
“bottom right of the driver door.” (Tr. at 69;
Gov. Ex. 1 at 49:58). Trooper Nelm's handling of Jack
that day complied with GSP policies and procedures. (Tr. at
result of the positive K-9 alert, Trooper Hamilton searched
the SUV. (Tr. at 28; Gov. Ex. 1 at 52:33). He discovered 67
individually wrapped bundles of cocaine inside three bags
that were located in the SUV. (Tr. at 28; Gov. Ex. 1 at
52:56; Gov. Ex. 5). Trooper Hamilton eventually issued two
traffic citations to defendant for speeding and following too
closely, which he did not complete until after he confirmed
defendant had an active warrant and after Jack gave a
positive alert. (Tr. 27, 56); see also (Def. Exs. 1A
& 1B). Upon discovering the cocaine, Trooper Hamilton
placed defendant and the female passenger under arrest and
contacted federal authorities. (Tr. at 28-29). Before federal
agents arrived on scene, Trooper Hamilton advised the female
passenger of her Miranda rights and spoke with her,
(Gov. Ex. 1 at 55:29-57:45), and then Trooper Hamilton
similarly advised defendant of his Miranda rights,
(Gov. Ex. 1 at 1:12:35-1:13:12). In response, defendant
stated that he wanted a lawyer present. (Gov. Ex. 1 at
1:13:12). Shortly thereafter, defendant indicated that he
wanted to know his options and would speak with federal
agents. (Gov. Ex. 1 at 1:14:00-1:16:42). At no point during
the traffic stop did any officer un-holster a firearm or
point a weapon at defendant, nor did anyone yell, threaten,
or speak to defendant in an aggressive manner. See
(Gov. Ex. 1).
force officer Jonathan Heeb (“TFO Heeb”) of the
High Intensity Drug Trafficking Task Force, arrived at the
traffic stop sometime between 3:00 and 4:00 p.m. (Tr. at
72-73). After speaking to one of the troopers, TFO Heeb met
with defendant in the back seat of a patrol car. (Tr. at
73-74). Defendant was “really interested in what his
options were, ” so TFO Heeb decided to continue the
conversation at a nearby GSP office. (Tr. at 74-76). After
arriving there, Trooper Nelms first met with defendant,
advised him of his Miranda rights, and asked him if
he would be willing to complete a handwritten witness
statement. (Tr. at 62; Gov. Exs. 2 & 3). Defendant signed
his initials next to each of the rights listed on the
Miranda form and signed the waiver at the bottom of
the page indicating his desire to “willingly make a
statement.” (Gov. Ex. 2 (all caps omitted); Tr. at
63-64). Defendant then wrote and signed a separate witness
statement form. (Tr. at 64; Gov. Ex. 3).
approximately 4:54 p.m., TFO Heeb began his formal interview
of defendant by presenting him with a second Miranda
waiver form. (Tr. at 76; Gov. Ex. 6). Defendant signed his
initials next to each of the rights listed, wrote
“Yes” twice to indicate that he both
“understood [his] rights” and was “willing
to answer some questions, ” checked a box indicating he
had read the form, and signed that he “freely and
voluntarily” was willing to answer questions. (Gov. Ex.
6). At one point during the hour-long conversation that
followed, defendant gave TFO Heeb consent to search
defendant's two cell phones. (Tr. at 79-80). Defendant
provided the “passwords for his phones” to TFO
Heeb and showed him specific items contained in his cell
phones. (Tr. at 80). At no point did defendant withdraw his
consent to search his phones, and he remained “very
cooperative” throughout the interview. (Id.).
On September 4, 2018, TFO Heeb applied for and received a
search warrant to extract data from the two cell phones.
(Gov. Exs. 7 & 8). The warrant was executed on September
12, 2018. (Gov. Ex. 8 at 2).
contends that the “evidence obtained through the
warantless search and any pre-search statements are due to be
suppressed.” [Doc. 28 at 6]; see also [Docs.
18 & 19]. In particular, defendant argues that
“there was not reasonable suspicion to support the
traffic stop, ” and that “even if the stop were
proper at its initiation, it was impermissibly
prolonged.” [Doc. 28 at 6]. The government responds
that the “traffic stop was justified by reasonable
articulable suspicion that  [d]efendant had committed two
different traffic violations, ” that the “GSP
troopers were further authorized to detain  [d]efendant
while they determined whether he was wanted for an
outstanding arrest warrant, ” and that a “K-9
alert later provided probable cause to search the vehicle for
controlled substances.” [Doc. 25 at 9].
Probable Cause to Initiate the Traffic Stop
Fourth Amendment protects individuals from unreasonable
search and seizure.” United States v. Rowls,
402 Fed.Appx. 467, 468 (11th Cir. 2010) (per curiam)
(unpublished) (citation and internal marks omitted). The
“[t]emporary detention of individuals during the stop
of an automobile by the police, even if only for a brief
period and for a limited purpose, constitutes a
‘seizure' of ‘persons' within the meaning
of [the Fourth Amendment].” Whren v. United
States, 517 U.S. 806, 809-10 (1996) (citations omitted);
see also United States v. Purcell, 236 F.3d 1274,
1277 (11th Cir. 2001); United States v.