United States District Court, D. Vermont
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE (Doc. 27)
CHRISTINA REISS, Chief District Judge.
This matter came before the court on June 17, 2014 for an evidentiary hearing on Defendant Luis A. Cordero's motion to suppress evidence. (Doc. 27.) Defendant is charged in a one count indictment with bulk cash smuggling in violation of 31 U.S.C. § 5332(a)(1).
Defendant seeks suppression of physical evidence discovered after U.S. Border Patrol agents searched his vehicle during a traffic stop near the United States-Canadian border. Defendant argues there was no lawful basis for the traffic stop, no basis to extend the stop to permit a canine sniff which Defendant contends was unlawful, and no probable cause to search the vehicle after the canine allegedly alerted. The government opposes the motion, contending the vehicle was properly stopped upon reasonable suspicion of criminal activity, law enforcement did not impermissibly prolong the traffic stop, the canine's alert provided probable cause to search the vehicle, and the canine sniff was not a search.
The government is represented by Assistant United States Attorney Eugenia A. Cowles. Defendant is represented by Assistant Federal Public Defender Steven L. Barth.
I. Findings of Fact.
In or about September of 2013, United States Border Patrol agents discovered a new footpath in an area known as "the slash" which straddles the United States-Canadian border in the area of East Richford, Vermont. The slash is a strip of land that has been cleared of tall vegetation to create a physical demarcation between the two countries. The East Richford Cemetery is in the area of the slash and also straddles the international border., It contains mostly historic tombstones from the 1800s and the early 1900s. Based upon intelligence reports, as of September 2013, Border Patrol agents regarded the East Richford Cemetery as a "hot spot" for illegal entry due to its proximity to the border although there had been no recent arrests.
Border Patrol agents decided to set up a game camera in order to determine whether individuals were using the footpath to illegally enter the United States. On September 17, 2013, at approximately 7:00 a.m., the Border Patrol's game camera captured an image of the legs and feet of two individuals wearing camouflage walking southbound on the footpath towards the United States. In response to this information, the Border Patrol decided to conduct a "lay-in operation" near the East Richford Cemetery in the vicinity of East Slide Road during which Border Patrol agents assumed various positions on the ground and in vehicles in order to apprehend individuals who may be entering the country illegally. The lay-in operation commenced at approximately 4:00 a.m. on September 18, 2013 after Border Patrol agents were briefed that there had been evidence of recent smuggling activity in the area.
Border Patrol Agent Craig Weatherspoon was part of the lay-in operation and was one of three agents on the ground. His position was in the southeast corner of the East Richford Cemetery in the area of the slash. At approximately 6:00 a.m., he heard a branch snap which he believed was someone coming up the footpath from Canada. Thereafter, he noticed a maroon pick-up truck travelling west on a dirt path in the cemetery. The truck stopped and parked on the Canadian side of the border at the end of the dirt path. An individual, who was later identified as Defendant, exited the truck. After he did so, Agent Weatherspoon told Defendant that the Border Patrol agents were conducting surveillance in the area and asked Defendant what he was doing. Defendant responded that he was visiting a friend's tombstone. At the time of this conversation, Defendant was in Canada and Agent Weatherspoon was in the United States. Agent Weatherspoon asked Defendant: "Can you come down to the road?" and Defendant did so. Agent Weatherspoon asked if Defendant had any weapons on him and Defendant lifted up his jacket to indicate he did not. Agent Weatherspoon asked for identification and Defendant provided an identification card and stated that he had recently moved to the area of Slide Road and he repeated that he was visiting a friend's tombstone. Defendant's truck was parked away from the majority of the tombstones and close to two older stones. When the conversation ended, Defendant did not go into the cemetery but, instead, returned to his truck and drove away. Because Defendant was in Canada, Agent Weatherspoon decided to take no further action other than to tell the other agents on foot that he had encountered Luis Cordero in the cemetery. Border Patrol Agent William Hafley radioed this information to the mobile units participating in the lay-in operation.
As part of the lay-in operation, Supervisory Border Patrol Agent Aaron Porter was in a marked Border Patrol vehicle on Johnson Road. He heard a dispatch regarding the Border Patrol's encounter with Defendant in the East Richford Cemetery. He recognized Defendant's name as one associated with someone who had been encountered on Slide Road in a suspicious manner but who had not been arrested. He did not hear any details regarding Agent Weatherspoon's encounter with Defendant in the cemetery as the radio transmission was spotty. Border Patrol Agent Brian Dike, who was in a Border Patrol vehicle located on Slide Road, radioed that he had seen a vehicle travelling westbound on Slide Road.
Agent Porter repositioned his vehicle and first heard and then saw a vehicle travelling at a high rate of speed. At approximately 6:15 or 6:20 a.m., the vehicle passed Agent Porter's position with no illuminated headlights. At the time, it was still dark outside and there were patches of fog rising from a nearby river. Agent Porter turned on his vehicle's headlights and tried to get a good look at the vehicle's operator. As soon as his lights were illuminated, the vehicle turned sharply onto Johnson Road which is generally used by local traffic to access Route 105. Agent Porter followed the vehicle and radioed the license plate number to dispatch, which ran the plate number and determined it was "not in the file" which he interpreted as indicating the vehicle was unregistered. Agent Porter followed the vehicle for approximately five minutes looking for a safe location to conduct a traffic stop. En route, he radioed for back-up for officer safety purposes.
After Defendant turned east on Route 105, which revealed Defendant's path of travel was circuitous and inconsistent with local traffic patterns, Agent Porter effected a traffic stop by activating his vehicle's emergency lights. Both he and Agent Dike approached Defendant's vehicle which was an older maroon Ford pick-up truck. Defendant was the operator of the vehicle and there were no passengers. Agent Porter asked Defendant if he was a U.S. citizen and Defendant stated that he was and that he was born in the United States. Agent Porter asked Defendant for identification and Defendant produced an identification card that indicated a post office box in Richford, Vermont as his address. Defendant stated that he lived at 89 East Slide Road and that he was the owner of the vehicle and had recently purchased it. Agent Porter asked Defendant for his operator's license and Defendant stated he had lost it. Agent Porter asked Defendant if he had any proof that he was the owner of the vehicle and lived on East Slide Road. Defendant responded that he lived at 69 East Slide Road. Agent Porter confronted Defendant with the apparent discrepancy and Defendant stated that "it was always 69 Slide Road." Agent Porter asked Defendant if he had any drugs or weapons and Defendant responded in the negative.
Agent Porter noticed that the interior of the truck was fairly clean and contained no personal possessions and that the key ring had only one key on it. He interpreted this as indicia that Defendant may not own the truck. He examined the truck's tailgate which was locked and appeared to have been recently closed because while there was dust on the remainder of the tailgate, it looked like a handprint had been wiped off where the tailgate had been closed. There was a tonneau cover over the bed of the truck and Agent Porter asked if he could search that area. Defendant responded that there was no need to search it. Agent Porter explained that Defendant was driving with his lights out, could not prove he lived in the area, could not establish that it was his vehicle, and that a search would only take a few minutes. Agent Porter stated he would call a canine unit in the absence of consent. Defendant replied that he would be willing to wait for a canine. The canine unit arrived approximately fifteen to twenty minutes later and approximately thirty minutes after the initiation of the traffic stop.
While the agents awaited the canine unit, Agent Dike asked Defendant if he had ever been arrested before, "ran" Defendant's identification, and asked Defendant about some prior criminal history. The nature of this criminal history is not in evidence.
Upon the arrival of the canine unit, the agents briefed the canine handler, Border Patrol Agent Adam Birchand, about the nature of their investigation. Agent Birchand asked Defendant if he would step out of the vehicle during the canine sniff. He made this request for Defendant's safety as well as for officer safety and to avoid any altercation with the canine. Defendant agreed to do so. Agent Birchand noticed the truck's interior was clean and without personal belongings and that the dusty tailgate appeared to have been wiped clean where it had been closed. He noticed that the tonneau cover did not fit the truck's bed.
When Agent Birchand retrieved Chieko, a Gelman Shepard, from his vehicle and approached the truck, Chieko immediately began to alert. While Agent Birchand and Chieko circled the perimeter of the truck, Agent Porter and Defendant waited in front of the truck from which vantage point Agent Porter could only partially observe Agent Birchand and Chieko. When Chieko alerted to the tailgate of the truck, Agent Birchand placed his hand upon it and Chieko confirmed the alert. Agent Birchand approached the front of the vehicle. Agent Porter recalls Agent Birchand telling him to put Defendant "on the ground" meaning to tell Defendant to sit down on the ground so that he posed a lesser danger to officer safety. Agent Porter understood this instruction to mean the canine had alerted. In contrast, Agent Birchand does not recall saying anything to Agent Porter. He credibly testified that he approached the front of the vehicle, told ...