United States District Court, N.D. California
For Luis Martin Ortiz, Defendant: Geoffrey A. Hansen, LEAD ATTORNEY, Federal Public Defender, San Francisco, CA.
For USA, Plaintiff: Wai Shun Wilson Leung, LEAD ATTORNEY, United States Attorney's Office, Northern District of California, San Francisco, CA.
ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS
(Docket No. 12)
EDWARD M. CHEN, United States District Judge.
Defendant Luis Martin Ortiz has moved the Court to suppress evidence obtained through a search of his person and vehicle conducted on October 21, 2013. Motion to Suppress (" Motion" ), Docket No. 12. The Government opposes the Motion. Government's Response to Defendant's Motion to Suppress (" Response" ), Docket No. 15. On July 30, 2014, the Court held an evidentiary hearing to resolve factual disputes as to whether Ortiz consented to the search of his vehicle, and whether reasonable suspicion supported the prolongation of a traffic stop and subsequent frisk of Ortiz. Minute Order, Docket No. 19. The day before the hearing, the City of Ukiah Police Department (" UPD" ), joined by the Government, filed a Motion to Quash a subpoena Ortiz had served on the UPD four days earlier. Docket No. 26. The subpoena requested information from the personnel files of three officers who were present at various times during the searches.
Having considered the parties' briefs and accompanying submissions, as well as testimony, the witnesses' demeanor, and
arguments presented at the evidentiary hearing, the Court hereby GRANTS Ortiz's Motion to Suppress and the UPD's Motion to Quash.
I. FACTUAL BACKGROUND
The testimony of Pintane and Ortiz during the evidentiary hearing largely coincided with their declarations, the police report and briefs filed in conjunction with the Motion to Suppress. The testimony however clarified some points and provided a few additional facts, as noted below.
A. The Initial Traffic Stop
At approximately 10:00 p.m. on October 21, 2013, Ortiz was driving his truck with only his parking lights on, and headlights off, a violation of the California Vehicle Code. UPD Report (" UPD Rpt." ), Docket No. 12-1, 3; Declaration of Luis Ortiz (" Ortiz Decl." ), Docket No. 12-2, ¶ 2. Pintane, a sergeant with the UPD for fifteen years, called in Ortiz's truck and activated his overhead lights. Declaration of Richard Pintane (" Pintane Decl." ), Docket No. 16, ¶ 1; UPD Rpt. at 3. Ortiz drove about 500 feet and pulled into a gas station, stopping between two pumps. See Defendant's Reply Memorandum in Support (" Reply" ), Docket No. 18, 7:12-13; UPD Rpt. at 3; Ortiz Decl. ¶ 4; Motion at 4 n. 2.
Pintane approached Ortiz's truck and explained the reason for the stop. UPD Rpt. at 3; Ortiz Decl. ¶ 5. Ortiz laughed that his headlights were turned off and turned them on. UPD Rpt. at 3; Ortiz Decl. ¶ 5. Ortiz then asked if he could move his vehicle. UPD Rpt. at 3; Ortiz Decl. ¶ 7. During the evidentiary hearing, Ortiz testified that in response to his request Pintane put one finger up to indicate that Ortiz should wait while Pintane listened to communication over his radio. The Government did not dispute this specific testimony. Ortiz further testified he told Pintane he wanted to move his truck closer to the pump so he could pump gas. But Pintane testified Ortiz did not mention wanting to pump gas, and that he believed Ortiz may have wanted to park the truck intending to leave it.
Ortiz asked for Pintane's registration and proof of insurance. UPD Rpt. at 3. Ortiz explained that the insurance card would not reflect the present vehicle, as his truck was new. Id.; Ortiz Decl. ¶ 5. Pintane testified that Ortiz became nervous when asked for the paperwork and that Ortiz's hand shook as Ortiz retrieved the paperwork from the glove box and handed it to Pintane. Pintane Testimony. While Pintane reviewed the paperwork, Ortiz dropped his hands. UPD Rpt. at 3. Pintane asked Ortiz to keep his hands where he could see them. Id.; Ortiz Decl. ¶ 6. Ortiz complied, but " lowered them again shortly thereafter[,]" and Pintane asked him to place them on the steering wheel. UPD Rpt. at 3.
Pintane then called UPD dispatch to check Ortiz's license status and for any outstanding warrants or supervised release. Id. Pintane noted again that Ortiz was nervous and asked a second time if he could move the truck. Id. at 4. Pintane refused and told Ortiz to keep his hands on the wheel. UPD Rpt. at 4; Ortiz Decl. ¶ 7. UPD dispatch " advised Ortiz had a valid license and was not on probation/parole or on any type of supervised release." UPD Rpt. at 4.
B. Continued Stop: Consent
After the check came back clear, Pintane called for a second unit and proceeded to ask Ortiz further questions. Id.
1. Pintane's Version of the Facts
According to Pintane, he asked if Ortiz had anything illegal in the truck. Id. " Ortiz hesitated [and] looked around the vehicle" before saying no. Id. Pintane then asked Ortiz if he could search the vehicle and " Ortiz hesitated, looked around[, and] stated, 'Go ahead.'" Id. When Ortiz stayed in the truck, Pintane told Ortiz that he " could not search the vehicle with him in [sic] seated in the driver seat." Id. Ortiz responded " Oh," opening the door and stepping out, and Pintane asked Ortiz whether there was anything Pintane should be concerned about, to which Ortiz replied, " there might be some bullets." Id.
2. Ortiz's Version of the Facts
On the other hand, Ortiz explained that he responded to the request to search his car by saying, " Why? I'm not on parole or probation." Ortiz Decl. ¶ 8. Then, Pintane told Ortiz if he did not " have anything illegal in the truck, [he] should have nothing to hide." Id. Ortiz replied, " well, you have no reason to search me if I'm not on parole or probation." Id. At that point, Pintane said, " sir, would you please step out of the truck," and Ortiz complied. Id. Ortiz contends that he mentioned a necklace made out of a bullet, but did not otherwise mention bullets in the car. Motion at 13.
C. Continued Stop: Frisk and Arrest
Pintane held Ortiz's hands behind Ortiz's back, beginning a frisk with his free hand. UPD Rpt. at 4; Ortiz Decl. ¶ 9. Pintane then " grabbed" Ortiz's clothing " on the front of his body at the waistline" in search of a handgun. UPD Rpt. at 4. During the evidentiary hearing, Pintane testified that Ortiz wore a " baggy" shirt and what he believed to be denim pants. He explained that the folds in the shirt's material made it difficult for him to be certain that Ortiz was not concealing a weapon. Pintane Testimony. Ortiz, on the other hand, testified that he had been wearing a tee shirt, which he explained to the Court was very similar to the one he was wearing at the hearing. The shirt that he showed the Court at the end of the evidentiary hearing was made of a thin, cotton-like material. The Government did not dispute this testimony. Pintane stated Ortiz watched him closely while he conducted the frisk.
Pintane did not feel anything during the frisk. UPD Rpt. at 4. He then lifted Ortiz's shirt up " exposing his waistline, the top of his pants," and " the tail end of . . . a torn piece of a clear plastic bag." Id. Pintane states that based on his " training and experience that drugs, specifically methamphetamine, are often packaged in this manner (placed in the corner of a plastic baggie, then torn off and tied into a knot) and that people do carry drugs down their pants in an attempt to conceal them," he believed what he " had seen was drugs." Id. at 4-5.
Pintane " initially acted as though [he] did not see the packaging as [he] was alone, Ortiz was much larger than [him,] and he still believed a firearm was present." Id. at 5. He " lowered [Ortiz's] shirt and called for the responding unit to speed up their response." Id. Pintane handcuffed Ortiz without incident. Id.
Once Officer Covella arrived to assist, Pintane removed the baggie under Ortiz's shirt containing " a quantity of white crystalline substance, which [Pintane] suspected was methamphetamine." Id. Ortiz was put under arrest. Pintane Decl. ¶ 4. Twelve minutes elapsed between the time Pintane first called in the incident to dispatch and the arrest. Id.
D. Search of Ortiz and Truck Incident to ...