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United States of America v. Jose Salvador Sanchez-Palomino and Francisco Javier Velasco

February 18, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
JOSE SALVADOR SANCHEZ-PALOMINO AND FRANCISCO JAVIER VELASCO, DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Defendants Jose Salvador Sanchez-Palomino and Francisco Javier Velasco ("Defendants") are charged with (1) conspiracy to possess with intent to distribute five kilograms or more of cocaine, and (2) possession with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1), respectively. Defendants filed a Motion to Dismiss the Indictment or Suppress Evidence Based on Equal Protection and Due Process Violations (ECF Nos. 59 and 60) and requested an evidentiary hearing on the matters.

This case arises from an incident on February 12, 2009. Defendants were traveling northbound on Interstate 5 ("I-5") when Shasta County Sheriff Deputies John Kropholler and Christopher McQuillan stopped their vehicle for allegedly speeding in violation of California Vehicle Code § 22349(a). The officers subsequently searched portions of the vehicle and found thirteen kilograms of cocaine hidden in the rear bumper.

Defendants argue that Officers Kropholler and McQuillan "almost exclusively stop Hispanic drivers," and then detain the drivers and passengers while voraciously searching and dismantling parts of the vehicle. Defendants maintain that this selective enforcement of the vehicle code violates their rights under the Fourth and Fourteenth Amendments to the United States Constitution (hereinafter, the "Fourth Amendment" and the "Fourteenth Amendment," respectively). In contrast, the United States of America (the "Government") argues that Defendants were pulled over initially for speeding alone, and their race played no part in the officers' decision to stop and search their vehicle.

The matter was called for an evidentiary hearing beginning September 13, 2010. Evidence was presented on the pleadings and during seven days of testimony from numerous witnesses, and the Court heard final arguments from both sides on day eight. Based upon the totality of the circumstances and weighing the credibility and veracity of each witness, the Court makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

NSI Cal-MMET DHE

1. Officers Kropholler and McQuillan are Shasta County Sheriff department officers assigned to the North State Initiative California Multi-Jurisdictional Methamphetamine Team ("NSI Cal-MMET"). NSI Cal-MMET was originally created in 2002 to curb the production and distribution of methamphetamine drugs in several northern California counties.

2. In 2007, the counties of Shasta, Tehama, Butte, Glenn, and Colusa entered into a memorandum of understanding to collectively fight drug trafficking. The program has evolved over time, and the task force currently focuses on catching all types of drug traffickers along the I-5 corridor that runs through the above counties.

3. Officers Kropholler and McQuillan are full-time employees of NSI Cal-MMET's Domestic Highway Enforcement team ("DHE"), who patrol I-5 mostly in the Shasta County region between the Oasis Road and Bridge Bay Road exits. Currently, each officer is assigned to a heavily-marked police-outfitted Chevrolet Tahoe. Prior to late 2009, Officers McQuillan and Kropholler generally patrolled the same area in one vehicle.

4. Other officers from the Shasta County Sheriff's department regularly assist Officers Kropholler and McQuillan, and work overtime as part of NSI Cal-MMET DHE. An overtime officer is with the officers eight out of every ten stops.

5. Because Officers Kropholler and McQuillan often patrol the same area along I-5 in Shasta County, they stop to assist each other if they notice a search or stop in progress for "safety reasons."

6. NSI Cal-MMET DHE conducts a high volume of traffic stops to look for criminal indicators of smuggling. The task force mostly patrols in this area because the shoulder areas of I-5 are widest there within the county, making traffic stops there safer for the officers.

7. In addition to standard police vehicle equipment such as the California Law Enforcement Telecommunications System ("CLETS"), Officer McQuillan's police vehicle is equipped with an in-car DVD system to record stops, document them for prosecutions, and assist in officer safety. The vehicle also has an Automated License Plate Registration System that, in conjunction with CLETS, can cross-check a vehicle's license plate with the California Department of Justice database for stolen license plates or vehicles. Officer McQuillan has a four-way Doppler radar that can calibrate the speeds of up to four vehicles at once. Officer McQuillan uses these tools as additional means to initiate traffic stops.

8. The primary mission of NSI Cal-MMET DHE is not to issue traffic citations. The officers use the California Vehicle Code "as a tool" to pull a vehicle over and search for drugs. Traffic citations are issued at times, but usually only when there is a "flagrant violation" of traffic laws, and "the risk to public safety is great."

Mexican Drug Cartels

9. I-5 traverses three states, including numerous California counties, from Mexico to Canada, and a main artery for drugs to flow throughout the west coast and Canada. In the five-county region the task force mainly supports, the majority of cocaine and heroin comes from Mexico and originates from Mexican drug cartels.

10. NSI Cal-MMET DHE focuses particularly on mid- to high-level drug smugglers, ninety-nine percent of whom originate from Mexico. A mid- to high-level drug smuggler is characterized as someone who is attempting to traffic more than five kilograms of drugs. Though only roughly fifty percent of methamphetamine and marijuana is manufactured in Mexico, much of the mid- to high-level smuggling of all drugs in the United States is managed by Mexican drug cartels.

11. Mexican drug cartels commonly choose to employ people of Mexican descent, and prefer to work with individuals who have a familial relationship to the leadership of the cartel.

12. There was conflicting evidence presented, both on the pleadings and during the hearing, as to the proper baseline of the Hispanic population on this particular stretch of I-5. Defendants proffered evidence of the population of Shasta County, as well as California Highway Patrol accident data to attempt to quantify the Hispanic traffic along I-5.*fn1

The Government's expert, Mark Carretia, testified at the hearing that neither statistical baseline properly reflects the racial composition of the traffic flowing along the northern portion of I-5. The Court finds that the statistical data proffered by Defendants is not a sufficient baseline or indicator of the population of Hispanic traffic along this stretch of I-5.

13. Mexican drug cartel operations along I-5 appear to favor using import sedans such as Nissans, Toyotas, and Hondas. Cars of this nature have many sidewall compartments that are void, perfect for smuggling contraband. Passengers and drivers of vehicles smuggling contraband do not usually have access to the hidden compartments containing illegal items, and rely on their contacts at the origin and destination of the vehicle to load and unload the smuggled items.

Officer McQuillan

14. Officer McQuillan has been employed by the Shasta County Sheriff's Office since 1999. He has over sixteen years of police experience, and over twelve years of criminal interdiction experience on highways and interstates across California. He has worked as a narcotics investigator since 2005. Additionally, Officer McQuillan handles asset forfeiture processing for CalMMET and the Shasta County Sheriff's Office.

15. Before becoming a police officer, Officer McQuillan installed auto alarms on Nissans, Subarus, and Chevrolets for a car dealership in Redding, California. He testified under oath that he has "worked on literally thousands of vehicles."

16. Officer McQuillan has completed a number of training courses, including a course on racial profiling/diversity training, basic narcotics investigations, and specialized training courses on drug interdiction, vehicle hiding compartments, and the specifics of drug cartels.

17. In addition to his other duties, Officer McQuillan is also currently assigned as a terrorist liaison officer with the Department of Homeland Security. In this position, he shares anti-terrorism information and daily updates on national terrorist threats and security awareness issues with the Shasta County Sheriff's Office.

18. Officer McQuillan has participated in at least fifty undercover purchases of controlled substances, and was the undercover agent purchasing controlled substances on three occasions. While working in highway interdiction, Officer McQuillan has investigated at least two hundred cases where controlled substances were seized from vehicles traveling on I-5.

19. Officer McQuillan has two sustained findings of misconduct with the Shasta County Sheriff's Office in 2002; one involving a delinquent gas station charge account that went to small claims court, and another for using a county-owned laptop for personal use, and failing to return the laptop in a timely fashion.

Officer Kropholler

20. Officer Kropholler has been employed by the Shasta County Sheriff's Office since 1994, and has been assigned to NSI Cal-MMET DHE since 2007. He is also certified as a canine handler and trainer.

21. Officer Kropholler has completed over one thousand hours of training as part of his law enforcement duties. He has logged over 150 hours alone in training on counter-smuggling, smuggling, and interdiction.

22. Officer Kropholler has two disciplinary issues in his police file; in 1997, he was suspended from duties for thirty days for falsifying his employment application (there appeared to be a discrepancy regarding the means by which one of his previous employments was terminated) in violation of Shasta County's policy on dishonesty. In 2003, Officer Kropholler received a letter of reprimand from the Sheriff's Office for taking an unauthorized break from his duties outside of his patrol area.

Use of Canine

23. Officer Kropholler has a canine, Maximus, that routinely travels with the DHE and assists in locating drugs and other contraband in stopped vehicles. NSI Cal-MMET DHE protocol requires that every effort be made to have a canine present during a traffic stop. Officer Kropholler stated that, to his knowledge, a warrant is not necessary to walk Maximus around a vehicle under suspicion of smuggling.

24. Maximus is trained specifically on highway interdiction and alerts to the presence and location of drugs. The canine has participated in over 780 vehicle searches. Officer Kropholler is careful not to overuse Maximus, to prevent him from being "tricked" or otherwise decreasing his effectiveness. When he is used, Maximus almost always searches a car outside first, then proceeds inside the vehicle while he is on a leash six feet in length. Officer Kropholler operates the dog from the passenger side of a vehicle for safety purposes.

25. Maximus is specifically trained with Officer Kropholler to alert to the presence of methamphetamine, cocaine, marijuana, and heroin. Maximus alerts Officer Kropholler to the presence of drugs by pawing the area, and altering his body language in a way that Officer Kropholler is trained to notice and interpret.

26. Maximus is trained, and Officer Kropholler is trained to identify, various alerts, but there are inherent flaws in canine drug interdiction. The canine can "miss," which indicates Maximus alerts to an area, but no contraband or drugs are subsequently found in that area. This is distinct from a "false positive," where Maximus correctly alerts to a smell or presence of odor, but nothing is seized, and likely the odor indicates contraband previously resided in that area.

27. Although Maximus may have been evaluated and trained appropriately, his evaluator had a fiduciary relationship with the canine, in violation of industry standard protocol. Canine training expert William Schroeder has personally witnessed over 800 canine searches, and has never seen a canine alert one hundred percent correctly in the field.

Though Officer Kropholler asserted that Maximus alerts one hundred percent correctly in the field, the Court finds that Maximus likely does not alert ...


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