Defendant Christopher Chelgren is charged in an information as follows: possession of marijuana in violation of 21 U.S.C. § 844, careless or reckless driving in violation of 36 C.F.R. § 261.54(f) and minor in possession of alcohol in violation of 36 C.F.R. § 261.58(bb). He has filed a motion to suppress physical evidence seized and all statements obtained on February 6, 2010 following a traffic stop. He argues that the stop was not justified by reasonable suspicion of any traffic violation; the stop was improperly prolonged; he did not consent to the search of his car; he was questioned improperly before he was given Miranda warnings; and both his waiver of his right to remain silent and his statements were not voluntary.
On July 28, 2010, the court held a hearing on defendant's motion to suppress. Rebecca Kaiser, Certified Law Student, appeared for defendant, who was present; Robert Sweetin, Certified Law Student, appeared for the government.
Ken Marcus has been a law enforcement officer with the United States Forest Service since 2007. As part of his training, he received instruction on identifying the objective signs of marijuana use, which include red, dilated eyes, debris in the mouth, and tremors. He relies on a card, entered into evidence as Government's Exhibit 1, which lists some of the symptoms of such use.
Officer Marcus also has been trained on identifying the drug by smell and sight. Since becoming a law enforcement officer, he has had numerous encounters with people using marijuana in the national forest.
On February 6, 2010, Officer Marcus was on patrol in the Placerville District of the El Dorado National Forest, in Sierra Tahoe's Parking Lot E, a special use area. The parking lot was perhaps seven-eighths full, pedestrians were in the area and there were some people sledding on a nearby hill. At 12:04 p.m., Marcus saw a car, a Subaru, in a sideways skid and stopped it for reckless driving.
When Officer Marcus reached the car, he asked defendant, the driver, for his license, registration and proof of insurance. He also asked why defendant and his two passengers were not wearing their seatbelts and then inquired, "Who has marijuana in this vehicle?" Officer Marcus testified he could smell freshly burnt marijuana as he stood at the driver's window.
The car's occupants denied having any marijuana and claimed they had not unfastened their seatbelts until the car stopped. Defendant said he had to get out of the car to comply with Marcus's renewed request for his driver's license. As defendant got out, Marcus recognized him and his mother's car from an arrest for possession of "hash" two years before. Defendant asked for defendant's consent to search the car, but defendant said, "It's not necessary, sir." Defendant continued to look for proof of insurance and called his mother to ask about the registration.
Officer Marcus walked back to his own vehicle, but then returned to defendant's Subaru when one of the passengers said he had the registration. Marcus took the proffered documents. Standing at the passenger window, Marcus said, "Now I'm telling you for a fact I smell marijuana." He testified that the odor of marijuana was much stronger from the passenger side of the car. He acknowledged that the back seat passenger was smoking a cigarette, but testified at hearing that the smell of marijuana is different and distinct from cigarette smoke.
Officer Marcus then questioned defendant and passengers about the presence of marijuana or a pipe or the use of the car to transport marijuana earlier. Defendant conceded he may have had marijuana in the car after he picked up his prescription from "the cannabis club" sometime earlier, but denied there was any marijuana or a pipe in the car.
Officer Marcus said he had probable cause for a search of the car. At 12:11 p.m., he ordered defendant and the passengers out of the car so he could undertake the search. In the back seat, Marcus found three beers and an open bottle of hard lemonade. One passenger, who claimed to be twenty-one, said the alcohol was his. After Marcus warned him that making a false statement was an offense and administered Miranda*fn2 warnings, the passenger denied the alcohol was his. Marcus told defendant he would be cited for being a minor in possession of alcohol because it was his car.
Officer Marcus then continued his search and found a plastic grocery bag containing a sealed jar of a substance he believed to be unburnt marijuana and a marijuana pipe and a pack of cigarettes. Defendant denied the marijuana was his. The passenger who had been seated closest to the marijuana also denied it was his. Marcus Mirandized the passenger, who invoked his right to remain silent, and handcuffed him as part of the investigation. Around 12:23 p.m., Marcus Mirandized defendant, but did not handcuff him or tell him he was under arrest because he was being basically cooperative. He asked if defendant wanted to talk to him and defendant said yes. Marcus had defendant stick out his tongue and saw a green stripe of marijuana debris, which is one sign of marijuana use as listed on Exhibit 1. When defendant said he had not smoked that day, Deputy Frisby -- an El Dorado County Sheriff's officer who had arrived on the scene -- asked if defendant was stupid because he was arguing with someone who had been doing this longer than defendant had been alive. Marcus also noticed that defendant 's pupils were dilated, which is another possible sign of marijuana use. Although Marcus believed defendant had used marijuana, a reasonable inference to be drawn from his testimony is that he did not believe defendant was under the influence of the drug.
Officer Marcus continued his search and found two small baggies of marijuana in the driver's area of the car, each labeled as medical marijuana.
There were vehicles and pedestrians in the area, as well as Sierra-Tahoe security guards. As noted, Deputy Frisby from the El Dorado ...