United States v. Cornejo

          ORDER

         Relying 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.

         I. PROCEDURAL BACKGROUND

         On 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. § 841(a)(1).1 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.

         The 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. 0115);

[] 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).

         The 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, 2016.

         II. RELEVANT FACTS

         A. Initial Stop

         On 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, Major Crimes, http://www.co.shasta.ca.us/index/sheriffindex/divisions/major crimes.aspx (last visited July 18, 2016).

         Gunsauls 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^[4] and 22400.^[5]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.

         Once 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.

         In 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.

         The 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.

         Gunsauls 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, 154–55.

         Gunsauls 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. 9:09:28– 9:10:49.

         B. Records Check and Dispatch of Deputy Hughes

         Gunsauls 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. 27.

         Gunsauls 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.

         While 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.

         When 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. 184.

         C. Instruction to Exit Vehicle and Pat-Down Search

         Approximately 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. Vid. 9:21:56.

         D. Completion of Written Citation and Questioning

         Gunsauls 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 stop.

         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.

         Gunsauls 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.

         Gunsauls 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.

         While 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.

         Gunsauls 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 ...