United States v. Cruz

          ORDER

          DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE

         Defendant Margo Cruz is charged with conspiracy and possession with intent to distribute cocaine. Doc. 1 at 1-2. The cocaine was found in his vehicle after a drug-detecting dog alerted to the vehicle following a traffic stop. Defendant has filed a motion to suppress evidence obtained as a result of the stop. Doc. 39. The motion is fully briefed, and an evidentiary hearing was held on July 12, 2019. The Court will deny the motion.

         I. Background.

         The facts in this order are based on the briefing by the parties and evidence presented during the hearing, including credibility determinations.

         On December 19, 2016, Special Agent Kyle Stalder of the Drug Enforcement Administration (“DEA”) was conducting video surveillance of a residence at 5123 East Red Bird Lane in San Tan Valley, Arizona (“the Residence”), by means of a pole camera. The pole camera had been installed after the DEA received information that co-defendant David Gallego-Machado was using the Residence as a “drug and/or drug proceeds storage location.” Doc. 44 at 1-2. At approximately 11:01 a.m., Agent Stalder saw a silver Jeep Cherokee registered to Gallego-Machado depart from the residence. Around noon, the Jeep returned, driving in tandem with a white sedan that Agent Stalder thought was either an Infiniti or a Jaguar. The white vehicle had yellow license plates. Agent Stalder could not zoom the camera quickly enough to read the plates, but he had received information that the drug trafficking operation was sending drugs to New Mexico and assumed the yellow plates were New Mexico plates.^[1] Court's Livenote Transcript, July 12, 2019 (“Tr.”) at 10. The white sedan entered the garage of the Residence and the garage door was closed. After about ten minutes, the garage door opened and the white vehicle pulled out and left the area. Id. This sequence of events was captured on the pole camera and was played for the Court during the evidentiary hearing.

         Anticipating that the vehicle was headed to New Mexico, Agent Stalder contacted Navajo County Sheriff Office (“NCSO”) Sergeant William Murray and explained that the DEA was surveilling the Residence and a suspicious vehicle just left. Tr. at 12. Sergeant Murray suggested Agent Stalder contact NCSO Deputy Randall Keith, who was on patrol. Tr. at 12. Deputy Keith is part of the NCSO Traffic Enforcement and Criminal Interdiction Unit. Doc. 44 at 3. Agent Stadler contacted Deputy Keith, relayed the information, and sent him a picture of the white vehicle taken from the pole camera. Tr. 20-21; see also Tr. at 40. This communication is not documented in DEA or NCSO reports, but the Court found the testimony of Agent Stalder and Deputy Keith credible on this point.

         At approximately 3:50 p.m., Deputy Keith initiated a traffic stop of the white Infiniti sedan with New Mexico plates that Defendant was driving east on I-40 in the Holbrook area, heading toward New Mexico. The dashboard camera in Deputy Keith's vehicle was not functioning properly and did not record the traffic stop. See Doc. 44 at 3 n.1. Deputy Keith's body camera recorded the encounter once he made the stop. Id.

         Deputy Keith approached Defendant's car from the passenger side. Doc. 44 at 3. He requested Defendant's license, registration, and proof of insurance, and explained that he stopped Defendant's vehicle because it crossed the fog line on the road and followed another vehicle too closely. Id. at 4. He said he would issue Defendant a warning and asked him to step out of the vehicle and follow him to his patrol car. Id. Deputy Keith testified that during this interaction Defendant appeared “very tense and jittery” and seemed to be having difficulty swallowing and speaking. Id. at 3. & n.2. While Deputy Keith completed the warning and ran the license plate, he asked Defendant questions about his travel. Id.; Doc. 39 at 3. Defendant, who lives in New Mexico, said that he drove to Phoenix to attend an Arizona Cardinals game but was unable to obtain tickets from a scalper. Doc. 44 at 4. He also told the Deputy that he has family in Phoenix, but stayed at a Hampton Inn in Glendale. Id. Around 3:57 p.m., Sergeant Murray arrived on scene. Docs. 39 at 3, 44 at 4.

         At approximately 4:00 p.m., Deputy Keith completed the warning. He then informed Defendant that he was part of a team looking for “illegal narcotics, explosives, weapons, identity theft items and large amounts of currency” along the I-40 corridor. Docs. 39 at 3, 44 at 5. He asked Defendant if he was carrying any of these items, and Defendant said no. Docs. 39 at 3, 44 at 5. Deputy Keith asked permission to search Defendant's vehicle, and Defendant said no. Docs. 44 at 5, 39 at 3.

         At that point, Deputy Keith told Defendant he was going to walk his drug-detection dog, Russell, around the car. Docs. 39 at 3, 44 at 5. Deputy Keith retrieved Russell from his vehicle and the search began at about 4:01 p.m. Doc. 44 at 5. After about 16 seconds, Deputy Keith testified, Russell “alerted” to the car when he “pawed the trunk area near the license plate and remained in the area of the trunk sniffing intently for several seconds.” Doc. 44 at 5. Deputy Keith returned Russell to his patrol car, informed Defendant that Russell had alerted to the trunk, and opened the trunk where he discovered four vacuum-packed rectangular packages of a white powdery substance in the spare tire compartment. Doc. 44 at 6. Defendant was arrested and transported to the NCSO office. Id. Testing revealed that the powdery substance was cocaine. Id. Defendant was charged with conspiracy to possess with intent to distribute cocaine (Count 1) and possession with intent to distribute cocaine (Count 2). Doc. 1.

         Defendant moves to suppress all evidence obtained as a result of the stop. Doc. 39. He makes four arguments: (1) Deputy Keith had no grounds to stop his vehicle; (2) the stop was illegally prolonged by questioning about illegal activity and the dog search; (3) Russell lacked training and was not reliable because of subpar performance in the field; and (4) Russell did not alert to the trunk. Id. at 5-6. The Court will address each argument.

         II. Reasonable Suspicion to Conduct the Traffic Stop.

         Temporary detention of individuals during the stop of an automobile by police, even if only for a brief period and a limited purpose, constitutes a seizure under the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 653 (1979). Because investigatory traffic stops are akin to on-the-street encounters addressed in Terry v. Ohio, 392 U.S. 1 (1968), the same objective standard applies: an officer may conduct an investigatory stop of a vehicle if there is “reasonable suspicion” that a particular person “has committed, is committing, or is about to commit a crime.” United States v. Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006).

         Defendant argues that Deputy Keith lacked reasonable suspicion to stop his vehicle because (1) crossing the fog line is not against the law in Arizona and (2) Deputy Keith used an improper method for determining that Defendant was following too closely in violation of A.R.S. § 28-730. Doc. 39 at 7-11. The government does not respond to the fog-line argument. Doc. 44 at 6-7. Thus, the Court will consider only whether Deputy Keith had reasonable suspicion to stop Defendant for following too closely.

         In Arizona, “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent and shall have due regard for the speed of the vehicles on, the traffic on, and the condition of the highway.” See A.R.S. § 28-730. The law grants officers broad discretion to determine whether a vehicle is unreasonably close. See United States v. Ayala, No. CR-16-002727-001, 2016 WL 4719980, at *4 (D. Ariz. Sept. 9, 2016).

         Before stopping Defendant's vehicle, Deputy Keith followed him and used a stopwatch to determine that Defendant was driving less than two seconds behind the vehicle in front of him at a speed of approximately 75 m.p.h. Doc. 44 at 7. Defendant argues that, using Deputy Keith's timing rule, the minimum distance between vehicles at 75 m.p.h. would be at least 220 feet, which is an excessive following distance to require of motorists. Doc. 39 at 10.^[2] Defendant asserts that it would be better for police to require a distance of one car length for every 10 m.p.h. of speed. Id.; see also Doc. 59 at 3 (citing case law accepting this standard). Defendant argues that “utilization of a two or three second rule would make nearly everyone using the freeway, especially while driving in heavy traffic, subject to being stopped for the traffic offense of following too closely.” Doc. 39 at 11.

         Arizona courts have upheld the two-second rule when evaluating the reasonableness of a traffic stop. See, e.g., State v. Sweeney, 227 P.3d 868, 877 (Ariz.Ct.App. 2010) (Brown, J. concurring); State v. Morando, No. 2 CA-CR 2012-4035, 2013 WL 3519455, at *2 (Ariz.Ct.App. July 11, 2013); State v. Rich, No. 1 CA-CR 08-0293, 2010 WL 682276, at *3 (Ariz.Ct.App. Feb. 25, 2010) (officer testified that two seconds was the minimum following distance considering the perception and reaction times of the ordinary person). This rule is also recommended by the Arizona and New Mexico Driver's License Manuals. See Exs. 13-14. In light of this acceptance of the two-second rule, the Court will defer to Deputy Keith's interpretation of the law and his evaluation of Defendant's driving. See State v. Paul, No. 1 CA-CR 16-0262, 2017 WL 2242849, at *2 (Ariz.Ct.App. May 23, 2017) (deferring to the officer's interpretation of unsafe and unreasonable traveling distance). The fact that there may be other reasonable methods for calculating safe driving distance does not make Deputy's Keith's method unreasonable, particularly when it has been accepted by Arizona courts and Arizona and New Mexico licensing authorities.

         Defendant's argument that the two-second rule would implicate too many innocent drivers is unavailing. Defendant cites Reid v. Georgia, 448 U.S. 438 (1980), where the Supreme Court found that the following facts, grouped together, were not sufficient to support reasonable suspicion: (1) the defendant had arrived from Fort Lauderdale, which the agent testified is a principal place for origin of cocaine sold elsewhere in the country; (2) the defendant arrived in the early morning, when law enforcement activity is diminished; (3) the defendant and his companion appeared to be trying to conceal the fact that they were traveling together; and (4) they apparently had no luggage other than their shoulder bags. Id. at 441. The Supreme Court held that allowing reasonable suspicion on these innocuous facts would implicate too large a group of “presumably innocent travelers.” Id.

         This case is unlike Reid. The officers in Reid observed otherwise innocent behavior and used it to infer that criminal activity was occurring. The Supreme Court sought to protect against officers inferring criminal conduct from innocent behavior common to a broad segment of the public. In this case, the criminal activity was not inferred from innocent behavior. Arizona law prohibits following at an unsafe distance. A.R.S. § 28-730. Deputy Keith observed that very behavior. He was not inferring criminal behavior from innocent facts, he was observing the very behavior that violated the statute. Defendant does not argue that the statute is invalid or improper, and, for reasons explained above, the Court concludes that Deputy Keith's method of evaluating the following distance was not unreasonable. That many drivers violate the statute does not require officers to stop using a reasonable method to enforce it, and officers have discretion on when to make traffic stops based on such violations. See Engquist v. Or. Dep't of Agr., 553 U.S. 591, 603-04 (2008) (“There are some forms of state action . . . which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments.”); Prouse, 440 U.S. at 653-54.

         Defendant cites three district court cases interpreting A.R.S. § 28-730. Docs. 39 at 9, 59 at 4. In Ayala, an officer stopped a vehicle traveling three car lengths behind a leading vehicle, which he testified violated § 28-730 because the driver should have been two seconds behind. 2016 WL 4719980, at *2. The court studied the officer's dashboard camera video and determined that no objectively reasonable officer could have found that the driver was too close to the vehicle in front of him. Id. at *4. The court also found it significant that the officer observed the vehicle only for two seconds before initiating the traffic stop. Id. The Ayala court had the benefit of a video of the vehicle before the traffic stop. The Court does not have such a video. And even if it did, the video would be considered only to ensure that Defendant was following less than two seconds behind the leading vehicle, a fact Defendant does not dispute.

         The other two district court cases are inapposite. In United States v. Milan-Zavala, CR05-01702, 2006 WL at 2033012, at *4 (D. Ariz. July 17, 2006), the court determined that following 20 feet behind a tractor trailer at 65 m.p.h. was following too closely. As discussed above, the fact that other courts and other officers use different methods to find a vehicle is traveling too closely does not render Deputy Keith's method unreasonable. Defendant also cites United States v. Terry, No. CR-16-1350-TUC-CKJ (EJM), 2017 WL 8897148, at *8 (D. Ariz. Apr. 20, 2017), where the magistrate judge noted that many motorists follow too closely every day without thinking they will be pulled over. The judge's observation, which was used to discredit the driver's testimony that she was following at an appropriate distance, is irrelevant to Deputy Keith's decision. See Engquist, 553 U.S. at 603-04; Prouse, 440 U.S. at 653-54.

         To the extent that Defendant suggests that Deputy Keith pulled the vehicle over for other purposes - a fact the Court does not find - it would not matter. See Doc. 59 at 4. Even if a stop is pretextual, it does not violate the Fourth Amendment if it was supported by reasonable suspicion. Whren, 517 U.S. 806, 813 (1996).^[3]

         III. Reasonable Suspicion to Prolong the Traffic Stop.

         Traffic stops generally can last only as long as reasonably necessary to carry out the mission of the stop. Rodriguez v. United States, 135 S.Ct. 1609, 1614-16 (2015). That mission includes “determining whether to issue a traffic ticket” and “checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance.” Id. at 1615.

         The Supreme Court has made clear that “[a]n officer's inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” Arizona v. Johnson, 555 U.S. 323, 333 (2009). But officers may “perform unrelated investigations that prolong a stop [if] they have ‘independent reasonable suspicion justifying the ...