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United States v. Bisso

United States District Court, E.D. California

November 15, 2017




         This matter comes before the Court on Defendant's motion to suppress evidence seized in the course of a stop and arrest of Defendant in Yosemite National Park on November 2, 2016. For the reasons stated below, the motion will be denied.

         I. Procedural Background

         Defendant is charged with three counts in a January 27, 2017 criminal complaint. Count 1 alleges that she was carrying or storing an open container of alcohol within a motor vehicle in violation of 36 C.F.R. 4.14(b). Count 2 alleges that she failed to comply with the directions of a traffic control device in violation of 36 C.F.R. 4.12. Count 3 alleges possession of marijuana, a controlled substance, in violation of 36 C.F.R. 2.35(b)(2). (ECF No. 1.)

         Defendant made her initial appearance on March 22, 2017, and the Federal Defender was appointed to represent her. (ECF No. 8.) Defendant pled not guilty to all charges. (ECF No. 11.)

         On July 11, 2017, the Court accepted and approved defense counsel's request to set a schedule for filing, briefing, and hearing Defendant's proposed motion to suppress. (ECF No. 12.) The motion was filed August 14, 2017, opposed by the United States on September 14, 2017, and ultimately set for an evidentiary hearing on October 19, 2017.

         At the October 19, 2017 hearing, testimony was taken from the two law enforcement rangers involved at various times in the stop and arrest of Defendant. The Government submitted, and the Court admitted, into evidence two segments of video --body camera footage from the two Rangers -- without objection by defense counsel. Defendant was not present or otherwise available for examination.

         II. Relevant Facts

         The following facts are relevant and, for purposes of this motion, undisputed except as may otherwise be indicated:

         On the evening of November 2, 2016, Ranger Justin Fey was on patrol investigating a report of a stolen license plate near the Majestic (aka Ahwahnee) Hotel in Yosemite National Park. At approximately 8:10 PM, Ranger Fey observed “two people turn and walk away from him as soon as they saw him” and “get inside a dark colored Ford pickup and [drive] away from the parking area, ” allegedly failing to use a left turn signal on exiting the parking lot. Ranger Fey radioed this information to Rangers Jesse McGahey and Lisa Kahn, who began following the pickup. According to Ranger McGahey's written report, he then observed the following from behind the pickup, :

At the Camp 6 intersection we observed the pickup fail to come to a complete stop at the stop sign. We continued to follow the vehicle as it turned left on Northside Drive towards Half Dome Village. At Curry 4-way the pickup turned left on Southside Drive. The pickup turned on the right hand turn signal before Curry 3- way. The pickup slowed, but did not turn right onto Curry Village drive and continued heading straight. The driver then turned off the right turn signal. The driver then turned back on the right hand turn signal at Pentilla's corner, at a location where it is not possible to turn right. The pickup stopped and then turned left, and subsequently turned right into Upper Pines. Near the kiosk the pickup attempted to U-turn and we stopped the vehicle at the Dump Station pull off at approximately 20:15 hours.

         After stopping the vehicle, Ranger McGahey approached the driver of the vehicle and identified her by her driver's license as Defendant Candy Bisso. While Defendant was retrieving her license and registration, Ranger McGahey commented that Defendant had been driving “a little erratically, ” to which Defendant responded[1] that she had been having trouble seeing (dark night, foggy windows, glare from car behind her, new road construction) and, being unfamiliar with Yosemite Valley, was trying to follow directions from her passenger - a new park employee - who was trying to locate her new housing but was lost. When asked if she had had anything to drink, Defendant indicated that she had had a beer approximately two and a half hours earlier. Later she said she only drank part of that beer as it was pale ale, and she did not like pale ale.

         After obtaining Defendant's license and registration, Ranger McGahey returned to his vehicle and spoke with Ranger Fey. Ranger McGahey acknowledged that he had not seen a license plate in the car and had not seen or smelled any alcohol or drugs. However, he observed that Defendant was “fiddling around with stuff”, that is, she had a poor grip on her registration and dropped it, and she seemed to have difficulty “multitasking”, getting her registration while talking to the ranger.[2] Ranger McGahey felt that Defendant was “a little off” and that her comments, such as about the beer, “[s]ounds a little questionable.” He observed that Defendant's actions and responses were “good enough” to justify a field sobriety test if Plaintiff consented. Defendant's license check came back valid and no outstanding warrants were found.

         Ranger McGahey then returned to Defendant's car and asked her to undergo a series of Field Sobriety Tests (“FSTs”). Defendant consented. In response to questioning, Defendant noted that that she had earlier that day been knocked down when she hit her head on an open SUV cargo door and that the incident had left a bump on her head. She also noted that she had not eaten anything since lunch, For approximately fifteen minutes, Defendant underwent FSTs consisting of horizontal gaze nystagmus (HGN), walk and turn, and one-legged stand testing. The HGN did not suggest impairment, but the other two tests were interpreted as being positive for impairment. Ranger McGahey characterized Defendant's performance of the walk and turn test as the worst he had ever seen. Defendant acknowledged performing horribly on the FSTs, noting that she was not very good at such things, and asked if she could just take a Breathalyzer test.

         While Ranger McGahey was administering the FSTs, Ranger Fey was speaking to Defendant's passenger and noticed, when she opened her purse, that there was a dispenser of Visine eye drops on the top of the contents of her purse, as if it had been the last thing put away. According to Ranger Fey's training and experience, people often use Visine to hide bloodshot eyes caused by drinking or drugs. When asked, the passenger said she, not the driver, had used the Visine because she had a sty. Later, Defendant said she had used the drops herself that evening.

         Ranger McGahey had Defendant undergo a preliminary/non-evidentiary Breathalyzer test. It produced a reading of .056, below the presumptively intoxicated level of .08, but, according to Ranger McGahey, more than would be expected from the ...

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