The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Before the court is defendant's motion to suppress evidence seized from him, and statements allegedly made by him, during a traffic stop and subsequent search of his vehicle. (Dkt. No. 5.) On June 17, 2010, the court held an evidentiary hearing related to defendant's motion, and the following witnesses testified at the hearing: Officer Jennifer Linn ("Officer Linn"), defendant, and defendant's passenger on the day in question, Daniel Zoller ("Mr. Zoller"). For the reasons that follow, the undersigned will deny defendant's motion to suppress.
On January 30, 2010, at approximately 2:30 p.m.,*fn1 Officer Linn, a U.S. Forest Service Law Enforcement Officer, was patrolling on El Dorado National Forest land when she nearly collided with a vehicle driven by defendant on a narrow mountain road. Officer Linn was driving downhill around a blind corner, and defendant was driving uphill in the opposite direction. The road on which the near collision occurred is narrow with no painted center line and, at the time, snow berms several feet in height impaired visibility at the blind corner. Defendant swerved to avoid the collision, and both drivers stopped their respective vehicles in the middle of the road.
With the vehicles still facing in opposite directions, Officer Linn activated the vehicle's lights, exited her vehicle and approached defendant's vehicle on the driver's side. She asked for defendant's driver's license and asked him why he was driving on the wrong side of the road. Defendant provided his driver's license and stated that he was "swinging wide" to turn onto a dirt road leading to Junction Reservoir. Officer Linn also obtained identification information for Mr. Zoller, who did not have a driver's license with him.
According to Officer Linn, when she first approached defendant's vehicle and obtained identification information from defendant and Mr. Zoller, she observed that defendant and Mr. Zoller had red, glassy, watery eyes, which suggested to her, based on her training and experience, that they might be under the influence of marijuana. Officer Linn asked defendant whether there was any marijuana or marijuana paraphernalia in the vehicle. Officer Linn testified that defendant hesitated, looked away, looked back at her, and responded "no." At this point, Officer Linn believed that defendant was not being truthful.
Officer Linn returned to her patrol car, drove it and parked it behind defendant's car, and verified defendant's and Mr. Zoller's information with the dispatch center. Defendant's driver's license came back "clean" and the registration on the vehicle was in order, but dispatch reported that Mr. Zoller's license had been suspended or revoked.
Officer Linn then approached defendant's vehicle for a second time, this time from the passenger side.*fn2 Officer Linn testified that at this point in the encounter she had already decided not to issue a traffic citation to defendant, but that her purpose on her second approach of the vehicle was to investigate possible marijuana possession. Officer Linn asked Mr. Zoller why his license was suspended. She also asked Mr. Zoller whether he had smoked marijuana that day, and Mr. Zoller initially responded "no" and then said that he had smoked marijuana that morning. Officer Linn then ordered Mr. Zoller to open his mouth so that she could check for marijuana residue or particulate in his mouth.*fn3 Mr. Zoller complied, and Officer Linn did not observe any residue or particulate. Officer Linn then asked Mr. Zoller if there was any marijuana in the vehicle, and Mr. Zoller responded that he was not aware of the presence of any marijuana in the vehicle.
After questioning Mr. Zoller, Officer Linn asked defendant whether there was any marijuana or drug paraphernalia in the vehicle.*fn4 Defendant responded that there was not. Officer Linn then asked defendant whether he minded if she looked in his vehicle if there were no drugs in it. Defendant refused this request for consent to search his vehicle. Officer Linn responded: "You don't want me to look in your car, why?" According to Officer Linn, defendant then "blurted out, 'Okay, there's weed.'" As discussed below, defendant's and Mr. Zoller's testimony have created a factual dispute regarding whether, just prior to defendant's statement regarding "weed," Officer Linn told defendant that his refusal to consent constituted probable cause to search the vehicle and intimated that she would call for back-up. In any event, defendant then stated that the drugs were under the passenger seat and that they belonged to him. Thereafter, Officer Linn asked defendant and Mr. Zoller to step out of the vehicle, checked them for weapons, and moved them to the front of the vehicle. Officer Linn then recovered a plastic bag containing 1.2 grams of marijuana, two green discs containing 2.2 grams of concentrated marijuana (hashish), and a glass pipe containing a consumable amount of marijuana.
Officer Linn issued a Violation Notice for violation of 21 U.S.C. § 844(a), possession of marijuana/concentrated marijuana. She did not issue a traffic citation, but gave defendant some form of verbal warning regarding driving on the wrong side of the road. The entire encounter lasted approximately nineteen minutes.*fn5
On April 13, 2010, the government filed an information charging defendant with a misdemeanor violation of 21 U.S.C. § 844(a) for knowingly and intentionally possessing a Schedule I controlled substance. (Dkt. No. 1.) On May 3, 2010, defendant filed the instant motion seeking to suppress physical evidence seized, and statements made, as a result of the traffic stop. (Dkt. No. 5.) Defendant requested an evidentiary hearing and, on June 17, 2010, the court held an evidentiary hearing regarding defendant's suppression motion. (Dkt. No. 15.)
A. Officer Linn's Initial Stop of Defendant's Car was Lawful
Defendant first argues that Officer Linn's initial stop of defendant's car was illegal because she lacked a reasonable suspicion of criminal activity or a traffic violation to support the ...