United States District Court, E.D. California
in large part on the Supreme Court’s relatively recent
decision in Rodriguez v. United States, __U.S. __,
135 S.Ct. 1609 (2015), defendant Jairo Cornejo moves to
suppress physical evidence seized and statements made on
December 13, 2014 following a traffic stop. The government
opposes the motion. The court heard testimony at an
evidentiary hearing on September 23, 2015 and March 29, 2016,
and heard argument on August 12, 2015 and June 8, 2016. At
each hearing, Richard Bender appeared for the government and
Kelly Babineau appeared for Cornejo. As explained below, the
court GRANTS IN PART defendant’s motion.
December 15, 2014, the government filed a criminal complaint,
alleging that defendant had possessed with the intent to
distribute methamphetamine and heroin under 21 U.S.C. §
ECF No. 1. On December 18, 2014, a grand jury indicted
defendant on two counts, consistent with the
complaint’s allegations. ECF No. 5. Cornejo entered a
not guilty plea on December 30, 2014. ECF No. 8. On June 17,
2015, defendant moved to suppress evidence and requested an
evidentiary hearing. ECF No. 28. The government opposed the
motion, ECF No. 32, and Cornejo replied, ECF No. 33. On
August 12, 2015, the court held an initial hearing and
determined an evidentiary hearing was necessary to resolve
factual disputes. See ECF No. 35.
court completed the first day of the evidentiary hearing on
September 23, 2015 and, due to various scheduling conflicts
and requests for continuances, completed the second day of
the evidentiary hearing on March 29, 2016. ECF Nos. 38 &
66. Shasta County Deputy Sheriff Jesse Gunsauls, one of the
two deputies involved in the traffic stop, testified for the
government. Jeff Dalton, an employee with Enterprise Car
Rental’s Sacramento legal compliance office, and Laurie
Sowder, a training manager at a consolidated 911 dispatch
center in Shasta County, testified for defendant. The
following exhibits were admitted into evidence:
 a dash cam video of the traffic stop (Ex. 1; Bates No.
 a photograph of Cornejo’s rental car showing the
position of the deputies’ vehicles at the time of the
stop, after Deputy Hughes arrived (Ex. 2; Bates No. 050);
 photographs of the passenger area and passenger side floor
of Cornejo’s rental car at the time of the stop (Exs.
3, 3a; Bates Nos. 0033, 0034);
 a photograph of Cornejo’s Washington state
driver’s license (Ex. 4; Bates No. 0081);
 Cornejo’s rental car agreement and photographs of
the rental agreement (Exs. 5, 6a, 6b, 6c; Bates Nos. 0016,
0060, 0061, 0063);
 a photograph of the warning citation completed by the
deputies for Cornejo’s alleged traffic violation (Ex.
7; Bates No. 0011); and
 the Shasta County Sheriffs dispatch logs for the incident
(Ex. 15; Bates Nos. 00128, 00130-33).
parties submitted closing arguments in the form of
post-hearing briefs. ECF Nos. 76 & 77. The court heard
oral argument on June 8, 2016. The parties then filed
supplemental authorities in support of their positions, ECF
Nos. 79 & 80, and the motion was submitted on June 15,
Saturday, December 13, 2014, at or about 9:09 a.m., Deputy
Gunsauls was traveling north on Interstate I-5 near Redding,
California. Dashboard Video 9:08:52, 2 Ex.1 (“Vid.”); Evid.
Hr’g Tr. 29, ECF Nos. 49 & 72 (“Tr.”);
see Investigation Report 5, Mot. Suppress Ex. A, ECF
No. 28-1 (“Rep.”).3 Gunsauls was driving a marked Chevrolet
Tahoe as a K-9 unit. Tr. 24; see Rep. 1. His patrol
vehicle was equipped with a radar system and an audio/video
recording system. Tr. 24-25; see Rep. 1. At the
time, Gunsauls was assigned to the domestic highway
enforcement unit of the Shasta County Sheriffs Office, an
intelligence unit that has specialized training in counter
terrorism and counter smuggling. Tr. 13, 84. The unit does
high volume traffic stops between Highway 36, Highway 299,
Highway 44, and Interstate 5 within Shasta County, and
Gunsauls’ primary duty is traffic-based enforcement.
Tr. 13, 85. Gunsauls also supplements SINTF, a local task
force that works in conjunction with law enforcement agencies
to enforce California’s controlled substance laws. Tr.
86; see Shasta County Sheriff’s Office,
crimes.aspx (last visited July 18, 2016).
observed a white Nissan Sentra sedan (“the sedan”
or “the rental car”) ahead of him in the number
one lane (far left lane), which he visually estimated to be
traveling at seventy miles per hour. Tr. 29–30;
see Rep. 1. The posted speed limit was sixty-five
miles per hour. Tr. 30; see Rep. 1. Cornejo was the
driver and sole occupant of the sedan. Tr. 143, 150; Rep. 1.
Gunsauls moved directly behind the sedan in the number one
lane and activated his radar unit, which returned a reading
of seventy miles per hour. Tr. 29–30; Rep. 1. As
Gunsauls approached the sedan, Cornejo slowed to sixty miles
per hour, five miles per hour below the posted speed limit.
Tr. 30; Rep. 1. Gunsauls testified that he then stopped the
sedan because it “was impacting other traffic on the
roadway” and had violated California’s speed laws
prohibiting excessive or excessively slow speeds, California
Vehicle Code sections 22349 and 22400.Tr.
30–31, 110–11; Ex. 7; Rep. 1. The only other
traffic visible on the video at the time of the stop,
however, is a gray mini-van that was driving in the number
two lane (right lane) at some distance in front of the sedan.
Vid. 9:08:57. The stop occurred just north of the Fawndale
Road exit on Interstate 5. Tr. 40, 81; Rep. 1.
Gunsauls activated his overhead lights, the in-car camera and
audio system automatically started recording. Tr.
24–26; Vid. 9:08:52. Throughout the stop, as described
below, Gunsauls turned his microphone off and on at various
times to selectively mute the audio recording. Tr.
25–28, 168–69. Hughes did not have a microphone
on his uniform, so Gunsauls controlled the audio recording
completely. Tr. 56. Gunsauls testified that he turned off his
microphone during his conversations with Hughes and other law
enforcement personnel for “officer safety
reasons.” Tr. 28. When asked what he meant by this,
Gunsauls explained that someone watching the video at a later
date could learn his tactics, and that he
“[didn’t] want to educate the persons that are
committing these crimes on how to better do them.” Tr.
180; see also Tr. 28, 164–66.
response to Gunsauls’ emergency lights, Cornejo pulled
over immediately. Vid. 9:08:52–9:09:10; Tr. 80, 143.
Cornejo accidentally turned on the windshield wipers instead
of his blinker. Vid. 9:09:16–9:09:19; Tr. 175. Gunsauls
approached the passenger side door and told Cornejo he
stopped him because Cornejo was driving at seventy miles per
hour and then “slowed way down” to sixty miles
per hour, and there were “cars passing [him] on the
wrong side of the road.” Vid. 9:09:28–9:09:39;
Rep. 1. He asked for Cornejo’s license and the
registration and proof of insurance for the car. Id.
9:09:50–9:10:03. Cornejo told him that the sedan was a
rental and that he was driving to Washington. Id.
9:10:05–09:10:10; Rep. 1. Cornejo first handed Gunsauls
a credit card, realized his mistake, and then gave him a
valid Washington state driver’s license and a rental
agreement from Enterprise Car Rental. Tr. 32; Rep. 1.
rental agreement was a pre-printed Enterprise form with
handwriting on it. Exs. 5, 6a, 6b, 6c; Tr. 41. Gunsauls
testified that the rental agreement appeared suspicious,
because he had never seen a handwritten rental agreement
before, the agreement included a manual imprint of
Cornejo’s credit card, and the agreement overall did
not appear complete or “legitimate.” Tr. 41,
45–46. In addition, the agreement had the phrase
“CA only” written on it, even though Cornejo said
he was traveling to Washington state. Tr. 43–46.
asked about Cornejo’s current plans, and Cornejo said
he was driving from San Jose, California, where he had been
visiting his parents. Vid. 9:10:10–9:10:35; Rep. 2. The
agreement showed Cornejo had rented the car at 11:20 a.m. the
day before. Ex. 5; Tr. 42. Gunsauls looked into the car and
saw three empty Rock Star-brand energy drinks, an empty
Arizona-brand watermelon drink can, two empty water bottles,
one cell phone, and a small bag of chips on the front
passenger floor board. Tr. 33, 150–52, 177,
189–91; Ex. 3; Rep. 2. He also saw a second cell phone
on the front passenger seat, a GPS unit on the center
console, and an Arizona-brand drink in the cup holder of the
center console. Tr. 178; Rep. 2. Based on his training and
experience, Gunsauls believed the beverage containers
indicated long-distance travel over a short period of time.
See Tr. 33–34, 175–77. He believed San
Jose was approximately six hours south of the location of the
traffic stop, so he “found it strange or suspicious
that somebody would drink that much liquid in six hours,
especially energy drinks.” Tr. 33. At the evidentiary
hearing, Gunsauls acknowledged that he did not know when
Cornejo consumed the drinks, and they could have been there
from the day before when he rented the car. Tr. 33–34,
testified that he noticed Cornejo was breathing rapidly and
displaying signs of nervousness. Tr. 51–54, 112,
175–77, 188–89; see Rep. 2. The video
does not provide a clear view of Cornejo during the initial
conversation to corroborate Gunsauls’ account of
Cornejo’s behavior. Vid. 9:09:28–9:10:49.
Cornejo’s breathing is not detectable on the audio due
to the amount of background noise. Id. Gunsauls told
Cornejo to give him a second to check the documents and said
he would probably just give Cornejo a warning. Vid.
9:10:43–9:10:49; Rep. 2. This initial conversation
lasted approximately one-and-a-half minutes. Vid.
Records Check and Dispatch of Deputy Hughes
returned to his patrol car with Cornejo’s
driver’s license and rental agreement while Cornejo
waited in the sedan. Id. 9:10:49–9:10:55.
Gunsauls turned off his microphone. Id. 9:11:02; Tr.
testified that at this point, he was sixty percent certain
Cornejo was smuggling something, based on his nervousness and
the empty beverage containers in his vehicle. Tr.
38–40, 184; see also Tr. 33–34,
51–54, 175–77. This initial suspicion raised a
number of safety concerns. Tr. 38, 48, 184. Gunsauls
testified that he knew from his training and experience that
persons engaging in smuggling sometimes travel together with
an associated vehicle to help defend the substance in their
car. Tr. 39–40. As a result, Gunsauls needed to both
keep an eye on Cornejo and look out for other cars traveling
with him. Tr. 38.
in his patrol car, Gunsauls says he notified dispatch of the
traffic stop through his radio, reviewed Cornejo’s
documents, contacted the El Paso Intelligence Center
(“EPIC”) to determine if there were any warrants
outstanding for Cornejo, and ran the sedan’s license
plate. Tr. 46–47, 145, 149, 182–83. Gunsauls ran
the license plate on the computer inside his patrol car at or
about 9:15 a.m. and learned within a minute that the sedan
was not reported lost or stolen. Tr. 229; Ex. 15. at
4–5. The timing of the EPIC check is not clear from the
record, but Gunsauls testified that it typically takes
between three and five minutes to complete. Compare
Tr. 183–84 (Gunsauls did not remember the timing, but
on average an EPIC check takes three to five minutes),
with Tr. 117 (Gunsauls was on the phone with EPIC
for ten minutes, until Hughes arrived). Gunsauls learned
Cornejo had no outstanding warrants. Tr. 47, 147, 149.
Although Gunsauls had the capability, he did not at this time
run Cornejo’s driver’s license to verify its
validity. Tr. 148–49. Neither did he call Enterprise
Car Rental to verify the legitimacy of the agreement. Tr.
121–22, 149. Gunsauls also did not begin filling out
the warning citation. See Vid. 9:10:58–9:21:11
(reflection in window shows Gunsauls setting his clipboard
down on the far right-hand side of his dashboard, where it
remains untouched for approximately ten minutes);
id. 9:21:38–9:21:48 (after exiting his patrol
car, Gunsauls pulls out a blank warning citation, places it
on top of his clipboard, checks his watch, and then begins
filling out the citation). Gunsauls later wrote in his
Investigative Report that he observed Cornejo fidgeting while
he waited in the sedan, Tr. 2, but Cornejo’s actions as
seen on the dashboard video do not convey any obvious
nervousness, see Vid. 9:10:58–9:21:11.
Gunsauls broadcast over dispatch that he was conducting a
traffic stop, Deputy Ray Hughes overheard the transmission
and responded that he was on his way to the scene. Tr.
183–86, 199, 230; Ex. 15 at 1. Gunsauls normally works
with a second deputy when conducting a highway traffic stop.
Tr. 199–201. Gunsauls waited for Hughes to arrive. Tr.
Instruction to Exit Vehicle and Pat-Down Search
eight minutes after Gunsauls initiated the stop, Hughes
arrived. Tr. 146; Ex. 15 at 1. Gunsauls and Hughes spoke
briefly off camera and without the audio on, for about four
minutes. Tr. 49, 119, 146, 160. Gunsauls was halfway seated
in the front passenger seat of the patrol car and Hughes was
standing outside of the car by the open, passenger side door.
Tr. 119, 146. Approximately twelve minutes into the stop,
Hughes approached the passenger side of the sedan and
instructed Cornejo to exit. Vid. 9:21:12–9:21:25; Tr.
49; Rep. 2. Gunsauls left his patrol car and turned his
microphone back on. Vid. 9:21:18–9:21:29; Tr. 119. At
Hughes’ request, Cornejo consented to a pat down
search, and while Hughes searched him, Gunsauls began filling
out the written warning citation on his clipboard in front of
his patrol car. Vid. 9:21:38–9:22:00; Tr. 49–50,
120; Rep. 2. Hughes found no weapons. Vid.
9:21:38–9:22:00; Tr. 49; Rep. 2. Hughes then told
Cornejo to stand next to Gunsauls in front of the patrol car.
Completion of Written Citation and Questioning
spoke with Cornejo while he continued to fill out the written
warning citation. Id. 9:22:04. During this time,
Hughes stood guard to the side, in the background of the
video or off camera. Id. 9:22:04–9:22:23.
Gunsauls testified that Hughes was there to watch out for
other vehicles and keep an eye on Cornejo. Tr. 56–57,
196. Later, however, Gunsauls had Hughes complete the warning
citation while Gunsauls simultaneously conducted a K-9 sniff
of the sedan. Vid. 9:28:23–9:30:40. Nothing in the
record suggests any of the safety concerns that required
Hughes to provide backup at one point lessened later in the
warning citation is a one-page document that contains fifteen
lines. Ex. 7. Gunsauls testified that practical issues, such
as needing to confirm the recipient’s eye color, and
safety concerns, such as staying aware of surroundings, add
time to filling out the citation. Tr. 171–74. During
his conversation with Cornejo, Gunsauls wrote in the time and
date; Cornejo’s name, mailing address, driver’s
license number, age, and physical description; the
vehicle’s license plate and description; the owner and
insurer of the vehicle; and the vehicle code violation. Ex.
7; see Tr. 132 (describing which sections Gunsauls
filled in, and which Hughes later filled in as described
below). Cornejo is a 5'10", Hispanic male and was
200 pounds and twenty-seven years old at the time. Ex. 7;
see Vid. 9:26:40 (confirming information with
Cornejo). Cornejo told Gunsauls he was driving at sixty-six
miles per hour on cruise control, and then decreased the
cruise control to sixty-five miles per hour when he saw
Gunsauls’ patrol vehicle. Vid. 9:22:08–9:22:39.
told Cornejo that his radar read sixty-miles per hour when he
stopped Cornejo and that a mini-van had passed them on the
right-hand side. Vid. 9:22:30–9:22:49; Rep. 2. As
noted, the video shows the gray mini-van driving in the
number two lane and at some distance in front of Cornejo when
he was pulled over. Vid. 9:08:52. No other cars are visible
in the video at the time of the stop.
told Cornejo the citation was just a warning and was not a
real ticket. Vid. 9:23:08–9:23:13; Rep. 2. Cornejo
asked if he would have to go to court, and Gunsauls told him
he would not need to, because it was just a warning. Vid.
9:23:25–9:23:32; Rep. 2.
he continued completing the warning citation, Gunsauls asked
Cornejo more questions, such as how long he was in San Jose;
where Toppenish, the city on Cornejo’s driver’s
license, is located; personal demographic information
requested by the warning citation; what he did for a living;
and where he was going to return the car. Vid.
9:23:05–9:28:23; Rep. 3. Cornejo responded that he was
visiting his parents in San Jose for a few days, details cars
for a living, and was going to return the rental car in
Washington. Vid. 9:23:05–9:28:23. Cornejo delayed
slightly before responding where Toppenish is located. Vid.
9:23:44–9:24:06. Gunsauls asked whether he was supposed
to return the car in Washington or California, and he said
Washington. Vid. 9:24:26–9:24:34. Gunsauls said the
rental car agreement indicated “CA only.” Vid.
9:24:36–9:24:40. Cornejo said, “Well I’m
supposed to, but then I checked my (inaudible). I gotta
return it over here ‘cuz I don’t want to come
back and, uh, you know.” Vid. 9:24:42– 9:24:49.
Gunsauls asked if Enterprise knew he was going to return it
in Washington, and Cornejo said yes. Vid.
9:24:50–9:24:54. Gunsauls said he had never seen that
before. Vid. 9:24:58– 9:25:04. Cornejo said it is a
little more expensive, but his own car was not a good car,
and he did not want it breaking down in the middle of the
road. Vid. 9:25:04–9:25:12; see also Rep. 3.
In the Investigative Report, Gunsauls wrote at this point he
“believed [Cornejo] was lying to [him] and his story
was not making sense.” Rep. 3.
testified that Cornejo’s nervousness appeared to
increase as the stop progressed, even after he was told he
would receive only a warning. Tr. 52–53; Rep. 3. During
their conversation, Cornejo shifted his weight between his
feet and occasionally shrugged his shoulders and bit or
pursed his lips. See, e.g., Vid. 9:23:34,
9:24:23–9:24:26, 9:26:35; see Tr. 53–
54; Rep. 3. Nothing in Cornejo’s demeanor or tone of
voice conveys anger, belligerence, or lack of respect.
Cornejo again questioned the basis for the stop, and Gunsauls
told him he had been speeding and then slowed below the speed
limit. Vid. 9:25:20–9:26:31. Gunsauls then asked
whether there were guns or drugs or large amounts of money in
the sedan, and Cornejo responded that there were not. Vid.
9:27:17–9:27:34; Rep. 3. Gunsauls requested permission
to search the sedan. Vid. 9:27:34–9:27:54; Rep. 3.
Cornejo initially gave his consent, but then withdrew it
after Gunsauls explained that he could say, “No.”
Vid. 9:27:34–9:27:54; Rep. 3. Gunsauls asked if
everything was okay with his license, and he said ...