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United States v. Diaz

United States District Court, D. South Carolina, Charleston Division

April 6, 2018

UNITED STATES OF AMERICA,
v.
ERICK DIAZ, ALEXANDER GEORGE BOZZETTI, Defendants.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         This matter is before the court on a motion to suppress filed by defendants Erik Diaz (“Diaz”) and Alexander George Bozzetti (“Bozzetti”) (collectively, “defendants”). After consideration of the testimony presented during multiple lengthy suppression hearings, a thorough analysis of the relevant caselaw, and a careful review of the dashcam video of the traffic stop, the court grants the motion to suppress. The court finds that there was no reasonable suspicion to prolong the traffic stop to conduct the free-air dog sniff as required under Rodriguez v. United States, 135 S.Ct. 1609 (2015). Furthermore, even if the officers did have reasonable suspicion to prolong the traffic stop, the drug dog Rao (“Rao”) did not “alert.” And finally, even if Rao did “alert, ” the court finds that Rao was unreliable under Florida v. Harris, 568 U.S. 237 (2013) such that its “alert” did not establish probable cause to search the vehicle.

         I. BACKGROUND

         On June 4, 2015, Lance Corporal K.L. Byrd (“Byrd”) of the South Carolina Highway Patrol (“SCHP”) visually observed a black Nissan with Florida license plates traveling at 77 miles per hour in a 70 miles per hour zone on Interstate 95 and swerving multiple times across the white fog line. Byrd decided to pull the car over for the traffic infraction. See S.C. Code §§ 56-5-1810, 1900. Byrd stopped the car travelling southbound on I-95 at mile marker 68, roughly 9-10 hours from Pennsylvania. Tr. 21:1-16. Equipped with a dashboard video camera, Byrd's vehicle recorded the ensuing traffic stop.

         Once the car stopped, Byrd approached the passenger side of the vehicle to find Diaz in the driver's seat, and Bozzetti and Juan Rodriguez (“Rodriguez”) as passengers. Byrd asked Diaz for his license and registration and to step outside the vehicle. At this point, Byrd observed an “overwhelming” odor of air freshener from the five air fresheners visible, three clip-in air fresheners in the front air conditioning vents, one on the rear view mirror, and one hanging in the back passenger area. Byrd also noticed that the passenger in the front seat was breathing rapidly. Byrd explained to Diaz the reason for the traffic stop, and began to ask a series of questions about where the car was coming from, to which Diaz responded that the car was coming from Pennsylvania from his brother's wedding. Byrd appeared to have difficulties understanding Diaz, as evidenced by Byrd asking where the car was coming from and Diaz repeating “Pennsylvania” multiple times before Byrd seems to understand the answer.

         Byrd then called for backup from his superior in the SCHP “Aggressive Criminal Enforcement” (“ACE”) team, Corporal Avery Stephen English (“English”). While Diaz was waiting outside his car, Byrd then went back to his police car to call Lance Corporal James Franklin Sweatman III (“Sweatman”) of the SCHP to come to the scene and bring his police dog Rao. After calling Sweatman, Byrd left the police car and informed Diaz that the stop would take longer because he was checking the vehicle identification number (“VIN”). At this point, English had arrived. English then went to talk to the remaining two passengers in the car, Bozzetti and Rodriguez, and asked them questions including: “How long have you been on the road, ” “How long were you all up in Pennsylvania, ” and “Are you all related? Are you friends?” The passengers answered while Diaz was standing outside the car. English also asked the passengers questions about the wedding in Pennsylvania that Diaz had told Byrd they all attended on Sunday. When asked, Bozzetti told English that they were in Pennsylvania for the wedding of Diaz's brother and that it was on Saturday. Upon running the VIN number back in the police car, Byrd determined that the rental car that Diaz was driving was due back in Miami the day before.[1] Byrd asked Diaz about the rental car being overdue under the rental agreement, to which Diaz responded that he called the rental company that day to extend the rental period for the car.

         Within fifteen minutes of first making contact with Diaz, Byrd handed Diaz's documents back and explained the warning to him. After giving the warning, Byrd asked Diaz if he could search the vehicle. Diaz refused, and said that he would like to get back on the road to Miami. Byrd then said that Rao would run the exterior of the car and if it did not alert to narcotics, Diaz would be free to go. Diaz responded “Okay.” Sweatman then deployed Rao to conduct a free-air sniff of the vehicle to determine if there were narcotics in the vehicle. After being run around the car, Rao “alerted” to the driver's door of the vehicle. The troopers asked the passengers if they were “smoking a little marijuana, to tell us and we will let you be on your way.” The passengers all once again denied that there were any drugs in the car. Upon searching the car after Rao “alerted, ” the officers found no narcotics but did find 171 credit and gift cards contained inside luggage and empty cigarette packs.

         Defendants Diaz and Bozzetti were indicted on one count of possession of counterfeit access devices, a violation of Title 18, United States Code § 1029(a)(3) and (2), and one count of aggravated identity theft, a violation of 18 U.S.C. § 1028(a)(1). On January 13, 2017, Bozzetti filed a motion to suppress the evidence found in the car after the traffic stop. On April 12, 2017, Diaz joined the motion. The government responded on May 1, 2017. The court held a hearing on October 27, 2017, during which it heard the testimony of English and Sweatman. Because Byrd could not be present at the first suppression hearing, the court continued the hearing until February 1, 2018, during which Byrd testified. The motion has been fully briefed and is now ripe for the court's review.

         II. DISCUSSION

         Defendants challenge the seizure of the evidence in the case on three separate grounds: (1) that the initial traffic stop was not supported by reasonable suspicion; (2) there was not reasonable suspicion to warrant the additional detention after the traffic stop had been completed; (3) neither the drug dog nor the alert were reliable enough to establish probable cause. The court analyzes each argument in turn.[2]

         A. Bozetti's Standing to Challenge Search

         The government first argues that Bozetti, as a passenger of the rental car whose name was not on the rental car agreement, [3] has no legitimate expectation of privacy in the contraband found under the front passenger side floor mats. Contraband was found in three locations: in the defendants' luggage, in several empty cigarette packets, and under the front passenger side floor mats. It is the contraband found in this last category that the government challenges Bozetti's standing to contest.[4]

         The government relies on a rule about reasonable expectations of privacy that does not control in this case. Specifically, it relies on circumstances similar to that of United States v. Avagyan, 164 F.Supp.3d 864, 880 (E.D. Va. 2016), aff'd sub nom. United States v. Ghazaryan, 2017 WL 1382027 (4th Cir. Apr. 18, 2017), where the court held that under Rakas v. Illinois, 439 U.S. 128 (1978), non-owner passengers who have the owner's permission to use the car[5] have standing to challenge a search only of the “particular areas of the automobile in which he has a legitimate and reasonable expectation of privacy.” The Avagyan court went on to say that “[n]on-owner passengers who have the owner's permission to be in the vehicle enjoy standing only as to items over which they have control; passengers, therefore, have no interest in the space under the driver's seat, in the trunk, or in a locked glovebox to which only the owner has a key.” The government argues that under the current state of the law Bozetti cannot challenge the search of the front passenger side floor mats because he has no reasonable expectation of privacy in that part of the rental car. Certainly, while the contraband was not found in the trunk, the fact that the cards were found underneath the passenger side floor mats, and that a slit had been cut on the vertical portion of the floorboard below the glove compartment into which the cards appeared to have been hidden, indicates that Bozetti would not have had a legitimate expectation of privacy in that portion of the car and thus has no standing to contest the contraband that was found in that specific location.[6]

         But that is not the correct rule. Here, Bozzetti was a passenger of the car who was seized as soon as Byrd impermissibly extended the traffic stop without reasonable suspicion. As soon as a defendant is illegally seized, that defendant is entitled to suppress any evidence that is derived from the unlawful seizure. In United States v. Rodriguez-Escalera, 2018 WL 1178359, at *7 (7th Cir. Mar. 7, 2018), the government pursued the exact same argument that is currently before the court. There, the government argued that the passenger in a car that was subjected to a free-air dog sniff had no standing to challenge the methamphetamine that was found in the subsequent search of that car once the drug dog alerted, even if the traffic stop had been unconstitutionally prolonged without reasonable suspicion. The Seventh Circuit rejected this argument out of hand, reasoning that because the passenger of the car had been detained without reasonable cause, “[t]he drug evidence was therefore derived from the unlawful seizure, and Rodriguez, as a subject of that seizure, is entitled to have suppressed any evidence which is the fruit of that violation.” Id. Here, there is a clear causal connection between Bozzetti's seizure and the officers finding the contraband in the floorboard. Bozzetti was detained in the Nissan while Sweatman ran Rao around the Nissan to conduct a free-air sniff. Rao's alert during this unconstitutionally prolonged seizure of Bozzetti is the only thing that gave the officers probable cause to search the car. Thus, any contraband seized during the subsequent search of the car is inadmissible if it is the fruit of a prolonged unlawful seizure. Bozzetti-like the passenger in Rodriguez-Escalera-has standing to challenge the admission of any evidence which is the fruit of the unlawful seizure.

         B. Reasonable Suspicion for Initial Traffic Stop

         Having determined that both defendants have standing to challenge the evidence that was seized as a result of the search, the court moves to the merits of the motion. Defendants first challenge the initial traffic stop as unconstitutional, arguing that Byrd lacked reasonable suspicion to stop the car. This argument is unavailing. Byrd “visually observed” Diaz speeding at mile marker 74, but did not turn on his blue lights and initiate the traffic stop until mile marker 68. Tr. 8-15. In those intervening six miles, Byrd also observed Diaz make a lane violation by crossing the white fog line. Tr. 194:19-23. It was only after Byrd observed Diaz cross the white fog line that he stopped the car.

         A traffic stop is a “seizure” within the meaning of the Fourth Amendment and must be reasonable under the circumstances. See Delaware v. Prouse, 440 U.S. 648, 653-54 (1979). The constitutionality of a traffic stop is assessed under the two-prong standard in Terry v. Ohio, 392 U.S. 1 (1968). First, the articulated basis for the traffic stop must be legitimate. See United States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992). Second, the officers' actions during the traffic stop must be “reasonably related in scope” to the basis for the seizure. Id.

         This first prong is satisfied “whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation.” See Arizona v. Johnson, 555 U.S. 323, 327 (2009). A “vehicular violation” includes a failure to comply with traffic laws. Here, Byrd visually observed the car going 77 miles per hour in a 70 miles per hour speed zone, and observed the vehicle swerve to the right across the solid white fog line. Tr. 140:16-20 (Byrd testifying about pulling the Nissan over for traffic violations, specifically that he “noticed” the Nissan “traveling at a high rate of speed, 70 miles per hour” and then “actually cross the white fog line to the right.” Tr. 140:16-20. Both the speeding of the car and the swerving between lanes constitute traffic violations.

         In United States v. Sowards, 690 F.3d 583, 591 (4th Cir. 2012), the Fourth Circuit stated in broad terms that “the Fourth Amendment does not allow, and the case law does not support, blanket approval for the proposition that an officer's visual speed estimate, in and of itself, will always suffice as a basis for probable cause to initiate a traffic stop.” Where, as here, the traffic stop is based on a vehicle's estimated speed that is only slightly in excess of the legal speed limit, there must be “additional indicia of reliability” such as radar, pacing, or other corroborating evidence to support the reasonableness of the officer's visual estimate. There was no testimony about whether Byrd's so-called “visual inspection” of speeding was corroborated by pacing or radar. Instead, Byrd testified that he determined that the Nissan was speeding by “visually” looking at the vehicle and determining that the Nissan was going faster than 70 miles per hour. Tr. 192:10-12. Byrd did testify that he “did activate” his radar “at some point, ” although he conceded that there was nothing in his report of the traffic stop that discussed a radar. Tr. 192:13-23. Certainly, Byrd was trained in visually estimating speeds and his testimony regarding Diaz's rate of speed was credible. But based on the “totality of the circumstances” analysis that remains the prevailing standard for evaluating the reasonableness of an officer's visual speed estimate, Byrd's visual speed estimate was in and of itself insufficient to constitute probable cause to initiate a traffic stop.

         That being said, Byrd did not initiate the traffic stop until he observed the vehicle travel across the fog line, or the white traffic line along the shoulder of the road. Swerving across the white traffic line is a traffic violation. S.C. Code § 56-5-1810, 1900. During the suppression hearing, no testimony was offered that Diaz did not actually swerve across the fog line. Instead, Diaz pointed to the lack of dashboard video recording of the traffic stop at issue in this case. The dashcam video did not capture the traffic infractions, as Byrd testified that the video activates only when the police cruiser's blue lights turn on. Tr. 140:22-141:22. Furthermore, at the time of the traffic stop SCHP officers did not have any body cameras. Tr. 188:12-14. Despite Diaz's best efforts to argue otherwise, the court has no reason to require that officers use their personal cellular phones to record a routine traffic stop. See Tr. 195:13-19. Since Diaz has neither denied that he committed the traffic violation of swerving across the fog line nor produced any evidence that calls Byrd's testimony into question, the court finds that Byrd had probable cause to initiate the traffic stop of the vehicle.

         In Whren v. United States, 517 U.S. 806, 809-810 (1996), the Supreme Court held that a traffic stop did not violate the plaintiff's Fourth Amendment rights where the officer had probable cause to believe several vehicle code violations had been committed. The Whren court stated that “[a]s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Id. Since the car swerved across the white fog line, this offense alone constitutes reasonable suspicion to effectuate a traffic stop. Byrd had reasonable suspicion for the initial traffic stop and the first prong of Terry is fulfilled.[7]

         The second prong of the Terry test asks if the officer took impermissible actions after initiating the traffic stop. Officers may conduct certain safety-related checks such as requesting a driver's license and vehicle registration, checking for criminal records, and outstanding arrest warrants “so long as” these unrelated inquires did not “measurably extend the duration of the stop.” Rodriguez v. United States, 135 S.Ct. 1609, 1615 (2015) (quoting Johnson, 555 U.S. at 333). Here, Byrd asked Diaz for his driver's license and vehicle information, asked Diaz to step out of his car and asked a number of questions for roughly two minutes about his trip. Byrd then checked the VIN, and concurrently asked the passengers of the car the same questions that he had asked Diaz about the trip. Byrd then headed back to his vehicle, and English arrived on the scene. Byrd then “debriefed” English on the situation, shared his concerns based on the passengers' “nervous demeanor” and other factors that they were transporting contraband, after which English asked the passengers the same questions that Byrd had asked. While English was asking questions, Byrd checked for outstanding warrants on the license and began to type out a warning. After printing out the warning, Byrd asked Diaz a number of questions about the presence of contraband in the vehicle as well as questions about his itinerary. Byrd then handed Diaz the warning, and asked if he could search the vehicle. At the point that Byrd handed Diaz the warning, the initial traffic stop was complete. The court now finds that Byrd did not delay the stop to ask questions irrelevant to the purpose of the stop, as Byrd's questions about the purpose and itinerary of the defendants' trip were posed during and were relevant to the legitimate traffic stop. See Muehler v. Mena, 544 U.S. 93 (2005) (Analogizing questioning during a search to performing a dog sniff during a traffic stop, which does not violate the Fourth Amendment if it does not extend the stop “beyond the time reasonably required to complete [the stop's original purpose].”). The Fourth Circuit has cautioned against engaging in “post hoc evaluation of police conduct” to determine if there are less-intrusive means by which the objectives of the traffic stop could have been accomplished. Palmer, 820 F.3d at 649 (quoting United States v. Sharpe, 470 U.S. 675, 686-87 (1985).

         Since the traffic stop fulfills both prongs of the Terry test, the initial traffic stop was constitutional and does not constitute a ground for suppression.

         C. Reasonable Suspicion to Prolong the Traffic Stop

         Next, the defendants contend that the evidence should be suppressed because there was no reasonable suspicion to prolong the traffic stop as required to conduct the free-air dog sniff under Rodriguez.[8] The court agrees.

         1. Applicable Rule

         The government relies on Illinois v. Caballes, 543 U.S. 405 (2005) to argue that the Supreme Court has already held that “law enforcement may use a canine to sniff around a vehicle even in the absence of reasonable, articulable suspicion of drug activity.” Gov. Resp. 6. First, this is a misrepresentation of the basic rule articulated in Caballes. In Caballes, the Supreme Court found that the use of a trained narcotics sniffing dog around the exterior of car during an otherwise lawful traffic stop was permissible because it did not implicate privacy interests, and that “the duration of the stop . . . was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop.” Furthermore, Caballes is inapplicable here-Byrd had already handed Diaz the warning, thus ending the traffic stop, before the dog sniff was initiated. Caballes says nothing about whether reasonable suspicion is required where a dog sniff is initiated after an “otherwise-completed traffic stop.” The applicable rule is the one articulated in Rodriguez. In Rodriguez, the Court addressed the question of “whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop, ” and held that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures.” Id. at 1612. The Rodriguez Court discussed the mission of a traffic stop as encompassing the typical “checking of the driver's license, determining whether there are outstanding warrants, and inspecting the automobile's registration and proof of insurance.” Id. at 1615.

         In Rodriguez, the officer had issued a warning and returned the driver's documents prior to the dog sniff. Similarly, here the dashcam video clearly shows that Byrd had already issued Diaz the warning before the dog sniff was initiated. The warning was issued 15 minutes after Byrd “first made contact” with Diaz. The entire stop took 23 minutes, so the dog sniff extended the stop by 8 minutes. The dog sniff therefore prolonged the stop.[9] And indeed, English himself testified that Byrd had completed the initial traffic stop before the free-air sniff was conducted, as Byrd had returned all of the passengers' ID cards, registration, and rental car agreement, and explained the warning before Rao was run around the car. Tr. 17:19-18:10. To be constitutionally reasonable, Byrd needed reasonable suspicion to conduct it. As explained below, the court finds that there was no reasonable suspicion.

         2. Reasonable Suspicion

         For reasonable suspicion, an officer must be able to articulate more than an “‘inchoate and unparticularized suspicion or hunch' of criminal activity.” Illinois v. Wardlow, 528 U.S. 119, 123-124 (2000) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). The reasonable suspicion test is one of totality of the circumstances. United States v. Perkins, 363 F.3d 317, 319 (4th Cir. 2004). However, the court may evaluate the “cumulative information” available to the police officer to determine if a series of innocent acts taken together can rise to the level of reasonable suspicion. United States v. McBride, 676 F.3d 385, 392 (4th Cir. 2012).

         This court first surveyed how courts in this circuit had ruled in similar factual situations post-Rodriguez to set forth some guideposts by which this court could determine if Byrd impermissibly extended the duration of the traffic stop to conduct the dog sniff. Namely, the court uses two post-Rodriguez Fourth Circuit cases to draw out some factors that are important in determining whether reasonable suspicion existed, one in which the Fourth Circuit found that there was reasonable suspicion for a dog sniff and another where there was not.

         In United States v. Williams, 808 F.3d 238, 244 (4th Cir. 2015), the Fourth Circuit found that there was no reasonable suspicion to deploy a drug dog, even viewing the evidence in the light most favorable to the government as required by United States v. Watson, 703 F.3d 684, 689 (4th Cir. 2013). The government's argument for a finding of reasonable suspicion rested on five factors: (1) the defendants were traveling in a rental car; (2) the defendants were traveling “on a known drug corridor at 12:37 A.M.”; (3) defendants' stated travel plans were inconsistent with the due date for the return of the rental car; and (4) the defendant was unable to provide a permanent home address in New York even though he claimed he lived there part-time.[10] The Williams court first dismissed the factors that defendant was using a rental car and that defendant was driving at night on an interstate highway as constituting reasonable suspicion, finding that “the overwhelming majority of rental car drivers . . . are innocent travelers with entirely legitimate purposes” and that there was “no basis on this record for assigning some nefarious significance to the 12:37 AM time of traffic stop, ” as “it is far from self- evident that interstate trafficking of drugs and contraband is more common at night.” Williams, 808 F.3d at 249. For the third factor, that of the expiring rental agreement, the Williams court quoted the Tenth Circuit's decision in United States v. Santos, 403 F.3d 1120, 1129 (10th Cir. 2005) that “law-abiding rental car users frequently extend the rental without incurring a penalty or paying a higher rate” and that a “large number of innocent travelers [] extend their trips beyond the time originally provided for in their rental agreements” in finding that just because the defendant's travel plans exceeded the duration of the rental agreement there was no reasonable suspicion of criminality. Williams, 808 F.3d at 249. Finally, the Fourth Circuit rejected the fourth factor, that the defendant was unable to provide a home address.

         More recently, the Fourth Circuit in United States v. Palmer, 820 F.3d 640, 647 (4th Cir. 2016) upheld a district court's denial of a motion to suppress where the following reasonable suspicion factors existed to extend the traffic stop with a drug dog sniff: (1) defendant was in a high crime area where citizens were complaining about drug dealing; (2) the officer believed that the car's windows were illegally tinted; (3) the defendant was nervous during the traffic stop; (4) the car emitted an “overwhelming” scent of air freshener from the multiple air fresheners in the car; (5) defendant was a suspected member of a violent gang; (6) defendant's driver's license listed a P.O. box address rather than a residence; (7) defendant was driving a vehicle registered in another person's name; and (8) defendant had a criminal record that included four previous arrests for narcotics charges as well as a charge of possession of a firearm by a convicted felon. The Palmer court found it particularly “compelling” that when the officer approached the car he smelled an overwhelming odor from the air fresheners that he could see in the vehicle, suggesting that the defendant was attempting to mask the smell of drugs. See also United States v. Foreman, 369 F.3d 776, 785 (4th Cir. 2004) (concluding that air fresheners on rearview mirror supported reasonable suspicion because they are “commonly used to mask the smell of narcotics”).

         In considering whether the factors articulated by a police officer amount to reasonable suspicion, the court is to “separately address each of these factors before evaluating them together with the other circumstances of the traffic stop.” United States v. Powell, 666 F.3d 180, 187-88 (4th Cir. 2011). In Williams, the court conducted the “totality of the circumstances” analysis by first reviewing each of the facts relied upon by the district court during an evidentiary hearing on a suppression motion first separately and then in the aggregate. This analysis means that the court should first parse out each of the factors that the officers believe constituted “reasonable suspicion” to prolong the traffic stop to conduct the drug dog sniff separately to determine if each factor rises to the level of reasonable suspicion, and eliminate those factors that are “innocent facts” when analyzed separately. For example, the fact that Diaz was driving a rental car and that he was driving on a major interstate highway after midnight are “innocent facts” as discussed by the Williams court. After eliminating those innocent facts, the court must conduct a ...


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