United States District Court, D. Arizona
G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
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
facts in this order are based on the briefing by the parties
and evidence presented during the hearing, including
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. 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.
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
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.
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
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.
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.
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.
Reasonable Suspicion to Conduct the Traffic Stop.
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).
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.
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).
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. 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.
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
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
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.
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.
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.
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).
Reasonable Suspicion to Prolong the Traffic Stop.
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.
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 ...