The opinion of the court was delivered by: Goldberg, J.
Defendants Rodney Frierson and Angel Anderson have been charged with conspiracy to possess with the intent to distribute, and possession with intent to distribute, 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841 and 846. Frierson is also charged with possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), and being a felon in possession of a firearm in violation of 18 U.S.C. 922(g). These charges stem from the stop and eventual search of a rental vehicle by the Pennsylvania State Police.
Presently before the Court are Defendants' motions to suppress physical evidence and statements premised upon Fourth Amendment violations. Although determination as to whether the Defendants' constitutional rights were violated is a close decision, for reasons stated herein, we will deny Defendants' motions.*fn1
I. PROCEDURAL AND FACTUAL BACKGROUND
An evidentiary hearing on Defendants' motions was held on May 20, 2011, where the Government presented the testimony of Pennsylvania State Troopers Justin Hope and Luke Straniere. This testimony, along with the Trooper Hope's video recording of the traffic stop,established the following:
Trooper Hope is an Intelligence Officer assigned to disrupt the flow of illegal drug and contraband traffic along the Pennsylvania Turnpike. He has extensive training and experience in the interdiction of individuals engaged in the transportation of drugs in passenger and commercial vehicles.*fn2
On the morning of January 15, 2010, Hope was positioned at the Valley Forge entrance ramp to the westbound side of the Pennsylvania Turnpike. He was in police uniform inside an unmarked vehicle facing the on-ramp, in view of westbound traffic entering the Turnpike. Shortly after 10:30 a.m., Hope observed two men in a black Chevrolet Tahoe Sports Utility Vehicle (SUV) with an Ohio license plate entering the Turnpike. He also observed a bar code on the vehicle indicating that the SUV was likely a rental and indeed, Hope confirmed that the vehicle was rented through Enterprise Rental Car Agency. (Supp. Hr'g Tr. 22 - 29.)
Hope testified that he became suspicious that the individuals in the SUV might be trafficking drugs because: (1) the driver did not look at him when he passed even though Hope had looked directly at the driver, and it was common for drivers to look at him when his car was parked in the position it was in; (2) the driver's hands were in the "10-and-2 position" on the steering wheel, which Hope explained is intended to convey safe driving to a police officer and is contrary to the driving habits of most drivers; (3) two people were in the vehicle, which is common amongst drug traffickers transporting narcotics; (4) it was mid-Friday morning,which was significant because the majority of the public works during that time period; (5) an SUV was being driven, which is the most common vehicle used to transport large amounts of drugs; (6) the SUV was an out-of-state rental vehicle, and rental vehicles are often used by drug traffickers; and (7) the SUV was being driven from Philadelphia, a source city for illegal narcotics. (Supp. Hr'g Tr. 25-31.) While we credit Hope's training and experience regarding the meaning of these observations, we also note that many, if not all, of these factors could be consistent with non-criminal activity.
Hope followed the SUV, clocking it for approximately one mile traveling at 76 mph in a 65 mph zone in violation of the Pennsylvania Motor Vehicle Code. At 10:44 a.m., having observed a violation of the vehicle code, Hope activated his vehicle lights whereupon the SUV immediately pulled over.*fn3 Hope approached the vehicle, introduced himself, and asked the driver, Defendant Rodney Frierson, for his drivers license and registration. Frierson produced a California drivers license and an Enterprise rental agreement. Hope testified that California is a source area for obtaining illegal drugs, mostly from Mexico. The passenger, Defendant Angel Anderson, stated that he had rented the car and volunteered his license, which was also from California. (Supp. Hr'g Tr. 31-32, 35, 38-39.)
Within seconds of receiving Defendants' licenses and the rental agreement, Anderson volunteered to Hope that his girlfriend was a Philadelphia police officer. Hope explained that, based on his training and experience, providing such information constitutes a "disclaimer," which is intended to suggest that the person would not be involved in criminal activity. Hope also observed three cell phones in the center console of the SUV, and testified that this created further suspicion because it is common for drug traffickers to have multiple cell phones. Hope informed Frierson and Anderson that he stopped them for speeding and intended to issue a warning. (Supp. Hr'g Tr. 41-45.)
In evaluating all of the suspicious factors known to him at this point, Hope explained that while any one factor could be viewed as innocent or suspicious, his training and experience dictated that such factors should be considered together. Hope testified that when he began to view all of the factors available to him at that point together, he started to believe illegal activity was afoot. (Supp. Hr'g Tr. 44)
Hope returned to his car, ran both drivers' licenses and found that both were valid. He also learned that no outstanding warrants existed for either occupant and neither were on probation or parole. Anderson had no criminal history, however, Frierson had an "extensive serious criminal history" in California. This criminal history included a 1996juvenile conviction for voluntary manslaughter for which Frierson served five years in a juvenile facility.Frierson had also been charged with felony possession of an assault weapon and possession of body armorin 2005. Frierson was convicted of the firearm charge and served sixteen months while the body armor charge was dismissed. In 2006, after being released for the firearms conviction, Frierson was convicted for possession, transport or sale of cocaine for which he served thirty-six months. Hope testified that Frierson's record made him concerned for his safety and further confirmed his suspicion that criminal activity was occurring inside the vehicle. (Supp. Hr'g Tr. 45-52; Govt. Ex. B.)
During this time, Hope was in contact with his backup, Trooper Luke Straniere, who was involved in making a separate stop on the Turnpike. Hope requested that Straniere join him when he finished with his traffic stop. Hope also called other troopers for backup and attempted to determine the availability of a K-9 dog sniffing unit. (Supp. Hr'g Tr. 52-54.)
At approximately 11:02 a.m., Hope had a radio conversation with an unidentified individual advising that he had stopped a vehicle for speeding, that the passenger had said his girlfriend was a Philadelphia cop and that the driver had murder and felony possession of cocaine convictions on his rap sheet. Hope noted, "that's all I got so far. It's not a third party rental so I'm going to have to get more reasonable suspicion but I figured I'd call you at least for now." (Video, 11:02 a.m.)
Hope further testified that he made an inquiry with the El Paso Intelligence Center in Texas (EPIC) to determine if either Frierson or Anderson had crossed the United States/Mexican border. EPIC reported that Frierson had crossed into Mexico from California four times in 2009. Hope was aware that Mexico is a source country for drugs coming into the United States. (Supp. Hr'g Tr. 54-55.)
In addition to reviewing the drivers' licenses and criminal histories, Hope also reviewed the rental agreement, which indicated that the vehicle was rented by the passenger, Anderson, and that Frierson was not authorized to drive the vehicle. Additionally, the rental agreement expired on January 7, 2010. (Supp. Hr'g Tr. 55-56.)
At 11:10 a.m., Trooper Straniere arrived. At that time, Hope approached the SUV to ask Defendants about the status of the rental agreement. Anderson explained that the agreement had been extended and Frierson acknowledged that he was not an authorized driver under the agreement. Hope then told Frierson that because he was not an authorized driver, Anderson was going to have to drive. (Supp. Hr'g Tr. 56-88.)
After questioning Frierson and Anderson about the agreement, Hope and Straniere got into the back seat of Hope's police vehicle, wherein Hope explained what he had learned up to that point. At approximately 11:14 a.m.,Straniere called Enterprise concerning the status of the rental and was advised that the agreement had been extended through January 21, 2010. Straniere also learned that Anderson had rented vehicles from Enterprise five times in the previous four months. Hope explained that the use of multiple rental vehicles is consistent with the transport of illegal drugs. (Supp. Hr'g Tr. 61-62.)
The troopers then discussed a plan to approach the SUV, remove the parties, ask them questions about their travel itinerary, and give Frierson a written warning. At 11:23 a.m, thirty-nine minutes after the vehicle was stopped, Straniere approached the passenger side of the SUV to engage Anderson in conversation while Hope approached the driver's side and asked Frierson to exit the car. Frierson complied with the order and when he exited, Hope observed that he was in a long-sleeve black shirt which was not tucked in, and which extended below his waistline. Hope asked Frierson if he could pat him down, and Frierson declined. Hope asked several more times if he could pat Frierson down, explaining that he wanted to do so for his safety and that another trooper had recently been shot in a similar situation. Frierson again refused. Hope testified this was the first time out of hundreds of traffic stops that ...