United States District Court, W.D. Pennsylvania
August 29, 2005.
UNITED STATES OF AMERICA
ROBERT VALDEZ LEAL, Defendant.
The opinion of the court was delivered by: KIM R. GIBSON, District Judge
MEMORANDUM OPINION AND ORDER
SYNOPSIS and FINDINGS OF FACT
This case comes before the Court on Robert Valdez Leal's
(hereinafter "Defendant") Motion for Discovery and to Suppress
Evidence (Doc. No. 19). Upon consideration of Defendant's motion,
the Response by the United States of America (Doc. No. 22), and a
hearing on Defendant's motion (Doc. Nos. 31 & 32), the Court
makes the following Findings of Fact:
1. On February 2, 2004, the Defendant was driving his Chevrolet
Blazer in Somerset County, Pennsylvania east on Interstate 76
toward Philadelphia, Pennsylvania.
2. On the same date, State Police Officer Michael J. Volk
(hereinafter "Officer Volk") was performing a routine patrol
along Interstate 76 in an unmarked police vehicle. Officer Volk
observed that the Defendant's Chevrolet Blazer was in violation
of 75 Pa.C.S. § 4524 of the Vehicle Code.*fn1 At
approximately 1:30 p.m., Officer Volk stopped the Defendant for
the window tint violation. At the time of the stop, Officer Volk had no
reason to suspect that the Defendant was engaged in any other
3. Officer Volk observed that the driver's side window did not
roll down, and the Defendant had to open the driver's side door
to communicate with Officer Volk.
4. Upon Officer Volk's request for the Defendant's driver's
license and vehicle registration information, the Defendant
produced the following documents: (1) a driver's license; (2) a
document from State Farm Life Insurance Company, one side of
which states that the name of the insured is Victor Bennet, and
on the reverse side of the document is a receipt of payment dated
May 9, 2003 for $205.68 for a multicar insurance policy; (3) an
insurance cancellation notice with the Defendant's name and a
description of the 1992 Chevrolet Blazer which the Defendant was
operating at the time of the traffic stop; (4) three Texas
insurance liability cards for the 1992 Chevrolet Blazer; and (5)
a State Farm Insurance Company's receipt of payment for $205.00
dated December 1, 2003 for a multicar insurance policy.
5. A second state police officer arrived at the scene during
the traffic stop of the Defendant. Using the computer inside of
the second officer's police vehicle, Officer Volk performed the
following routine checks: (1) whether the registration of the
Defendant's vehicle was valid; (2) whether there were any
outstanding warrants on the vehicle; and (3) whether the
Defendant had a criminal history. Officer Volk also performed
checks using his department issued cellular telephone.*fn2
He contacted the El Paso Intelligence Center (hereinafter "EPIC")
to determine whether the vehicle operated by the Defendant had been involved
with drug activity or border crossings. Officer Volk also checked
whether the Defendant had been involved in criminal conduct or
drug activity, border crossings, international flights, or other
6. Officer Volk learned that the vehicle was registered to
Maria Leal, who resided at the same Brownsville, Texas address
that the Defendant provided. Officer Volk also learned that the
Defendant had a felony conviction in the year 2000 in Texas for
illegal expenditures and investing drug money. Furthermore, the
vehicle operated by the Defendant had crossed the border from the
United States into Mexico on January 27, 2004, approximately six
days prior to the instant traffic stop. Officer Volk testified
that the duration of the computer and telephone check lasted
about ten minutes. During this time, Officer Volk proceeded to
prepare a written warning for the window tint violation. 7. After Officer Volk received the above listed information, he
returned to the Chevrolet Blazer to speak with the Defendant.
Officer Volk asked the Defendant questions regarding the
expiration of Defendant's automobile insurance, and whether any
other person had recently driven the Chevrolet Blazer.
Consequently, the Defendant explained that he did not know why
his insurance was expired, and that no other person had driven
the Chevrolet Blazer for at least six months.
8. Officer Volk also asked the Defendant whether he had been in
trouble with the law before, or if he had ever been arrested and
fingerprinted. The Defendant responded that he had never been in
trouble with the law, and he had never been fingerprinted.
9. Next, Officer Volk questioned the Defendant regarding his
last trip outside of the United States. The Defendant stated that
he had not been outside of the United States for at least two
10. Officer Volk then asked the Defendant about his destination
and travel plans on February 2, 2004. The Defendant answered that
he was traveling to Columbus, Ohio. However, noting that the
Defendant was traveling eastbound on the Pennsylvania turnpike,
Officer Volk indicated to the Defendant that he had missed
Columbus, Ohio which was located several hundred miles to the
west of the location of the traffic stop.
11. The Defendant explained to Officer Volk that he was driving
to Philadelphia, Pennsylvania to visit cousins who resided there.
The Defendant identified for Officer Volk specific street names
and locations that he would be traveling to in Philadelphia.
After his visit to Philadelphia, the Defendant stated that he
intended to travel to Columbus, Ohio to pick up his ill uncle and
take him to Brownsville, Texas for the winter to alleviate a
medical condition. 12. During his conversation with the Defendant about his travel
plans, Officer Volk testified that they were standing outside of
the Chevrolet Blazer; however the door to the vehicle remained
open. Officer Volk noticed a strong scent of air fresheners
emanating from the Blazer, and he observed two cellular
telephones on the seat of the Blazer.
13. Throughout their conversation, Officer Volk observed that
the Defendant's demeanor remained calm. Officer Volk asked the
Defendant to step to the rear of the vehicle while they continued
their conversation. In response to Officer Volk's request, the
Defendant removed the keys from the ignition, locked the doors to
the Blazer, and placed the keys in his pocket.
14. Officer Volk explained to the Defendant that the tint of
the windows violated Pennsylvania law. The Defendant stated that
once he arrived in Philadelphia, his uncle would help him remove
the window tint.
15. Officer Volk testified that the Defendant explained he was
driving to Philadelphia on that day, and then he would return to
Columbus the next morning to pick up his uncle prior to returning
to Texas. The Defendant stated that after he returned to
Brownsville, Texas, he would straighten out the problem with the
16. Officer Volk asked the Defendant what his employment was in
Brownsville, Texas. The Defendant stated that he was a carpenter
with his cousin; however, Officer Volk observed that the
Defendant's hands appeared uncut and manicured.
17. When their conversation concluded, Officer Volk returned
the Defendant's documents to him, and he issued the Defendant a
warning for the window tint violation. Then, Officer Volk told
the Defendant that he was free to leave. 18. As the Defendant turned and walked toward the front of the
Blazer, Officer Volk asked the Defendant if he would mind
answering one additional question. The Defendant responded that
he would answer the question.
19. Officer Volk asked the Defendant for permission to look
inside the Chevrolet Blazer. However, the Defendant responded
that he did not want Officer Volk to look in the vehicle. The
Defendant then appeared to become agitated, stating that the only
reason Officer Volk wanted to search the vehicle is because the
Defendant is a Hispanic American. Furthermore, the Defendant
claimed that he had consulted with an attorney prior to his trip
to Pennsylvania, and the attorney advised him not to permit a
search of his vehicle.
20. As the Defendant proceeded to admonish Officer Volk for
alleged racial profiling, the Defendant grew more agitated. At
that point, Officer Volk told the Defendant that he was going to
detain him pending further investigation. Furthermore, Officer
Volk stated that he was going to request that a drug detection
canine be deployed to the scene.
21. Officer Volk explained to the Defendant that he believed
that there was criminal activity afoot, and he was going to
further his investigation by calling for a drug dog.
22. Officer Volk testified that approximately fifteen minutes
elapsed between the time he initiated the traffic stop and the
time he called for Trooper Robert Johnson*fn3 (hereinafter
"Trooper Johnson") to respond to the scene with his canine. While
waiting in his unmarked vehicle, Officer Volk received
confirmation that Trooper Johnson was en route to Officer Volk's
location. 23. After approximately forty-five minutes to one hour later,
Trooper Johnson arrived at the scene of the traffic stop. Trooper
Johnson testified that his arrival at the scene was delayed due
to construction and traffic on the Pennsylvania Turnpike between
the New Stanton entrance and mile marker 124 where Officer Volk
was waiting. Furthermore, Trooper Johnson was the only available
canine unit in the Somerset County area on February 2, 2004.
24. While waiting for Trooper Johnson to arrive with the
canine, the Defendant remained inside of the vehicle reading a
newspaper and making telephone calls. Officer Volk remained
inside of his unmarked vehicle drafting an affidavit of probable
cause for a search warrant.
25. Once Trooper Johnson arrived at the scene of the traffic
stop, he reported to Officer Volk to determine what should be
done. Officer Volk explained that he wanted Trooper Johnson to
have his canine perform an exterior drug search of the Chevrolet
26. Before initiating the exterior search of the vehicle,
Trooper Johnson requested that the Defendant exit the vehicle for
his own safety. Then, Trooper Johnson deployed the canine to
perform the search, which took approximately three to five
minutes to complete. During the exterior search, the canine
alerted and indicated on the passenger side door seam and on the
driver's side door handle.
27. After Trooper Johnson communicated the canine's indications
to Officer Volk, Officer Volk then explained to the Defendant
that he was going to have the Chevrolet Blazer towed back to the
Somerset Turnpike Barracks. Then, Officer Volk explained that he
was going to secure a search warrant, execute a search of the
vehicle where he believed that drugs would be found inside the
Blazer. However, before leaving the scene, Officer Volk offered
the Defendant an opportunity to do a controlled drug delivery in
order to assist the police in arresting the individuals that were waiting for the drugs. The Defendant did not appear to be
interested in cooperating with the police at that time.
28. The Blazer was then towed to the Somerset Turnpike
Barracks. The Defendant was driven to the barracks in one of the
marked patrol vehicles located at the scene of the traffic stop.
Although the Defendant was not "Mirandized" at that time, nor was
he under arrest, the Defendant was being detained pending further
29. After arriving at the barracks, Officer Volk typed up a
search warrant, and accompanying affidavit, and contacted an
assistant district attorney. Thereafter, the assistant district
attorney approved the search warrant, and Officer Volk took the
warrant to a district magistrate judge for approval. This entire
process took Officer Volk approximately an hour to an hour and a
half to complete.
30. Following the approval of the search warrant, a search of
the Chevrolet Blazer was conducted. Officer Volk participated
minimally in the search. Specifically, Officer Volk retrieved
some documents from the vehicle and the two cellular telephones
that he had seen during the traffic stop.
31. The station commander, Sergeant Anthony F. DeLuca, also
participated in the search of the Blazer. He recovered four kilos
of cocaine from a duffle back that was laying on the front
passenger seat of the Blazer.
32. The Defendant was present during the entire search of the
Blazer. Once the duffle bag was opened, the Defendant stated to
the officers present that was required to try to keep them from
finding it, and that they had found what they wanted. 33. Officer Volk explained to the Defendant that he was under
arrest. Next, Officer Volk proceeded to gather up the documents,
the cocaine packages,*fn4 the cell phones, and the duffle
bag. After transporting these items for storage and/or analysis,
Officer Volk prepared a criminal complaint.
34. After Officer Volk completed typing the criminal complaint,
the Defendant was transported to Magistrate Judge Douglas Bell in
order to set bond and formally inform the Defendant of the
charges filed against him. The Defendant was also provided with a
copy of the criminal complaint.*fn5
35. The entire proceeding before Magistrate Douglas Bell took
approximately twenty minutes. During the proceeding, the
Defendant stated that he was just a "burro", which is a courier
to transport drugs. He also claimed that he did not take drugs,
rather he was given the merchandise in order to transport it from
Brownsville, Texas to Pennsylvania. Nevertheless, the Defendant
accused Officer Volk of racial profiling because he was Latino.
36. At the conclusion of the magistrate judge hearing, the
Defendant was transported to the Somerset County Jail. CONCLUSIONS OF LAW
1. The decision by a police officer "to stop an automobile is
reasonable where the police have probable cause to believe that a
traffic violation has occurred." Whren v. United States,
517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (cited in
United States v. Bellinger, 343 F.Supp.2d 417, 419 (E.D. Pa.
2004)). Consequently, "a traffic stop does not depend on the
subjective intent of the officer involved." Bellinger,
343 F.Supp.2d at 419. In Whren, the Supreme Court determined that
"the fact that the officer does not have the state of mind which
is hypothecated by the reasons which provide the legal
justification for the officer's action does not invalidate the
action taken as long as the circumstances, viewed objectively,
justify that action." Whren, 517 U.S. at 813 (quoted in
Bellinger, 343 F.Supp.2d at 419). Therefore, "as long as there
existed probable cause to believe that a traffic violation
occurred, an officer can legally stop a car. . . ." Bellinger,
343 F.Supp.2d at 419.
2. In the case sub judice, Officer Volk observed a visible
traffic violation in that the Chevrolet Blazer operated by the
Defendant was tinted in violation of section 4524 of the
Pennsylvania Vehicle Code. 75 Pa.C.S.A. § 4524.
3. Therefore, the Court determines that the initial traffic
stop of the Defendant did not violate the Fourth Amendment.
1. Pursuant to the rule of Terry v. Ohio, 392 U.S. 1,
88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), "a police officer may conduct
a brief investigatory stop based on a reasonable and articulable
suspicion that a particular person has committed, is committing,
or is about to commit a crime." United States v. Griggs, 114 F.Supp.2d 334, 338 (M.D. Pa.
2000). The Supreme Court has determined that a "routine traffic
stop is analogous to a `Terry stop' and therefore also is
analyzed under the reasonable suspicion standard." Griggs,
114 F.Supp.2d at 338 (citing Berkemer v. McCarty, 468 U.S. 420,
439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)); see also United
States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574,
45 L.Ed.2d 607 (1975).
2. "Whether an articulable and reasonable suspicion exists
`turns on an objective assessment of the officer's actions in
light of the facts and circumstances confronting him.'" United
States v. Hernandez, 872 F.Supp. 1288, 1293 (D.Del. 1994)
(quoting Maryland v. Macon, 472 U.S. 463, 470, 105 S.Ct. 2778,
2783, 86 L.Ed.2d 370 (1985)). Courts consider "the totality of
the circumstances the whole picture" when making this
determination. Hernandez, 872 F.Supp. at 1293 (quoting United
States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585,
104 L.Ed.2d 1 (1989)).
3. Consequently, even if a police officer lawfully detains an
individual for a traffic violation, an officer "may detain the
individual only for that period necessary to investigate the
traffic violation." Hernandez, 872 F.Supp. at 1293 (citing to
Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-1326,
75 L.Ed.2d 229 (1983) ("an investigative detention must be
temporary and last no longer than is necessary to effectuate the
purpose of the stop")). Furthermore, "[d]uring the investigation,
an officer may question the stopped individual concerning the
traffic violation, but the officer may not, for example, use the
stop to question the individual concerning other unrelated
potentially criminal activity." Hernandez, 872 F.Supp. at 1293
(citing Berkemer, 468 U.S. at 439). 4. However, if "during the questioning related to the routine
traffic stop, the officer identifies articulable facts that
create reasonable suspicion of additional criminal activity, the
officer may continue to detain the driver and investigate the
facts giving rise to the additional suspicion." Hernandez,
872 F.Supp. at 1293 (citing Terry, 392 U.S. at 21). The officer's
investigation includes "a moderate number of questions . . . to
try to obtain information confirming or dispelling the officer's
suspicions." Hernandez, 872 F.Supp. at 1293 (citing Berkemer,
468 U.S. at 439).
5. The Court considers whether the "same totality of the
circumstances test initially used to determine whether an
articulable and reasonable suspicion exists applies once more."
Hernandez, 872 F.Supp. at 1294.
6. In the case sub judice, the Court determines that the use
of the canine did not violate the Defendant's Fourth Amendment
rights because Officer Volk had reasonable suspicion to detain
the Defendant beyond the scope of an ordinary traffic stop in
order to investigate whether the Defendant was transporting
drugs. Specifically, in light of the facts and circumstances
confronting Officer Volk, he observed the following indicators of
possible drug activity which in their totality provided the
reasonable suspicion to call for the canine:
a) Defendant did not know who Victor Bennet was although the
name was included on the insurance document provided to Officer
b) Defendant resides in Brownsville, Texas, which borders the
country of Mexico and is a known hub of drug activity;
c) Defendant was traveling toward Philadelphia, Pennsylvania,
also a known hub of drug activity; d) Although far from his home in Texas, the Defendant knew very
specific information regarding street names and locations within
the city of Philadelphia;
e) Defendant told Officer Volk that he would be staying in
Philadelphia for the night then traveling a significant distance
to Columbus, Ohio the next day;
f) Defendant's story to Officer Volk regarding a visit to
Philadelphia to visit cousins was called into question by later
testimony that the Defendant's "cousins" changed to a visit to
the Defendant's "uncle" who, once the Defendant was in
Philadelphia, would remove the tint from the Defendant's windows;
g) Defendant had two cellular telephones inside the Chevrolet
Blazer which is characteristic of those individuals who are
involved in drug trafficking;
h) A strong odor of air freshener emanated from the vehicle
which is also characteristic of those individuals who are
involved in drug trafficking, and who are attempting to mask the
odor of drugs from dogs;
i) Although the Defendant claimed to work as a carpenter,
Officer Volk noticed that his hands were smooth and manicured,
not characteristically rough like a person who works with his
j) Driver's side window would not roll down, which commonly
occurs when drugs are hidden inside the door panel of a vehicle
in order to transport the drugs;
k) Defendant lied to Officer Volk about the last occasion when
the Chevrolet Blazer crossed the border from the United States
l) Defendant lied to Officer Volk about whether he had ever
been in trouble with the law or whether he had ever been
m) Defendant had been arrested in 2000 for illegal expenditures
and investing drug money; n) Based upon Officer Volk's years of experience in drug
interdiction, Officer Volk testified that many of the
above-listed indicators are consistent with a drug courier
o) Upon requesting to search the Chevrolet Blazer, the
Defendant responded in an agitated manner that he had consulted a
lawyer prior to his travel to Pennsylvania, and the lawyer
advised the Defendant not to consent to a search of the vehicle
that the Defendant was operating.
7. The Court also determines that the length of the detention
was not unreasonable in light of the factual circumstances. See
United States v. Maguire, 918 F.2d 254, 258 (1st Cir. 1990)
("each case necessarily turns on its own unique facts").
8. The reason that the Defendant was detained for a significant
period of time was due to road work, construction, and traffic
that Trooper Johnson encountered on his way to the scene of the
traffic stop. Moreover, Trooper Johnson and his dog were the only
available canine unit on the date of the traffic stop.
9. Therefore, based upon the facts and the extenuating
circumstances surrounding Trooper Johnson's ability to get to the
scene of the traffic stop, the Court determines that it was not
unreasonable for Officer Volk to detain the Defendant during that
period in order to conduct further investigation based upon his
reasonable suspicion that criminal activity was afoot.
1. Although briefly addressed by the Defendant and the United
States, the Court determines that Officer Volk did not
misrepresent information provided in the application for the
search warrant to the magistrate judge. Specifically, the
documentation provided by the Defendant to Officer Volk during
the traffic stop did not include valid, current insurance
information. Rather, what was provided was ambiguous
documentation of a receipt from State Farm Insurance. Indeed, one of the documents provided to Officer Volk included the name
Victor Bennet, which the Defendant could not explain.
2. Additionally, at the time Officer Volk prepared the
application for the search warrant, he was unaware that the name
provided on the Defendant's registration, Maria Leal, was indeed
the Defendant's spouse. Officer Volk testified that he simply
knew the car was registered in a third-party name.
3. Accordingly, the Court determines that Officer Volk did not
misrepresent information on the application for the search
warrant on February 2, 2004.
In the case sub judice, the Defendant requests that the Court
find Officer Volk's testimony incredulous. The Defendant also
argues that Officer Volk did not have articulable facts amounting
to reasonable suspicion which formed a basis upon which to detain
the Defendant beyond an ordinary traffic stop. Furthermore, the
Defendant asserts that this case is analogous to that presented
in Karnes v. Skrutski, 62 F.3d 485 (3d Cir. 1995) in that the
Defendant's refusal to give consent to search cannot provide a
reasonable suspicion to detain the Defendant.
The Court determines, however, that Officer Volk's testimony is
credible and that those indicators testified to by Officer Volk
which provided him with reasonable suspicion to detain the
Defendant to conduct further investigation have remained
consistent throughout his testimony. The Court also determines
that while the "use of indicators or drug courier profiles ha[v]e
been sharply challenged", the factual circumstances in their
totality which are present in the case sub judice create
reasonable suspicion of additional criminal activity,
specifically drug trafficking. Karnes, 62 F.3d at 489. Finally, the Court observes that Officer Volk testified that
the Defendant's refusal to consent to the search of the Blazer
did not provide a basis to further detain the Defendant. Rather,
it was the Defendant's insistence that he had consulted a lawyer
about whether he should consent to a search of the Chevrolet
Blazer while driving to Philadelphia, Pennsylvania. Finding it
unusual that the Defendant would seek advice of a lawyer for
consent searches, Officer Volk merely added this indicator to the
list of other factors indicative of illegal drug activity.
Accordingly, the Defendant's Motion to Suppress Evidence is
denied, and an appropriate order follows. ORDER
AND NOW, this 29th day of August, 2005, in accordance
with the foregoing Memorandum Opinion and Order, and based upon
consideration of the Defendant's Motion for Discovery and to
Suppress Evidence (Document No. 19), the Response by the United
States of America (Document No. 22), and a hearing on Defendant's
motion (Document Nos. 31 & 32), IT IS HEREBY ORDERED that the
Defendant's Motion to Suppress Evidence is denied.
IT IS FURTHER ORDERED that the Defendant shall file an
amended motion for discovery, within twenty days, based upon
those documents that remain in dispute following the
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