United States v. Mora-Alvarez

          OPINION AND ORDER OVERRULING OBJECTIONS, ADOPTING RECOMMENDATION, AND DENYING MOTION TO SUPPRESS

          Marcia S. Krieger Chief United States District Judge

         THIS MATTER comes before the Court pursuant to Mr. Mora-Alvarez's Objections (#56) to the Magistrate Judge's Recommendation (# 43) that Mr. Mora-Alvarez's Motion to Suppress (# 24) be denied, the Government's response (# 57), and Mr. Mora-Alvarez's reply (#60).

         FACTS

         Mr. Mora-Alvarez is charged in a September 21, 2017 Indictment (# 1) with three counts of possessing controlled substances with an intent to distribute, in violation of 21 U.S.C. § 841(a) and (b)(1). Mr. Mora-Alvarez was apprehended, and the drugs in question were discovered, during to a traffic stop that occurred near Grand Junction, Colorado on July 5, 2017.

         Mr. Mora-Alvarez moved (# 24) to suppress the fruits of that traffic stop, arguing that the law enforcement officer effectuating that stop lacked probable cause to initiate and prolong it. Magistrate Judge Gallagher conducted an evidentiary suppression hearing on July 13, 2018, and, at the conclusion of that hearing, recommended (# 43) that Mr. Mora-Alvarez's motion be denied. Mr. Mora-Alvarez filed timely Objections (# 56) to that Recommendation pursuant to 28 U.S.C. § 636(b), and the matter is now before this Court.

         The evidence adduced at the suppression hearing is discussed in detail below and merely summarized here. Only one witness, Colorado State Trooper Shane Gosnell, testified. Trooper Gosnell testified that at about 4:30 p.m. on July 5, 2017, he was parked in his vehicle at an emergency crossover, observing eastbound traffic on Interstate 70. He noticed a white sedan commit two violations of Colorado traffic law: traveling in the left lane of a highway without passing, and following too closely behind other vehicles. Based upon these observations, Trooper Gosnell pulled the sedan over.

         When Trooper Gosnell approached the sedan, he also observed a strong smell of air-freshener, that the driver was visibly nervous, that the driver had vague travel plans, and that there were discrepancies in vehicle registration information. These, along with other observations raised Trooper Gosnell's suspicions that the driver, Mr. Mora-Alvarez, might be transporting illegal drugs. Trooper ran checks on Mr. Mora-Alvarez's license and the vehicle's registration. While doing so, he also searched various federal databases (identified at the hearing as “EPIC”) and discovered that Mr. Mora-Alvarez had previously been involved in a currency seizure case initiated Drug Enforcement Administration.

         Although he suspected that Mr. Mora-Alvarez might be involved in drug trafficking, Trooper Gosnell returned to Mr. Mora-Alvarez's vehicle, delivered a warning for the infraction, and returned Mr. Mora-Alvarez's documents. Trooper Gosnell engaged Mr. Mora-Alvarez in additional conversation, and eventually asked permission to search the vehicle. Mr. Mora-Alvarez initially gave such consent, but then withdrew it. Trooper Gosnell asked Mr. Mora-Alvarez to exit the vehicle, and Trooper Gosnell summoned his canine unit to perform a sniff search of the vehicle. The dog gave a non-conclusive indication of concern near the front passenger side of the vehicle. Although the dog did not give a full alert, Trooper Gosnell then searched the vehicle, eventually discovering a hidden compartment with considerable quantities of several drugs.

         Mr. Mora-Alvarez's Motion to Suppress (# 24) raises three issues: (i) that Trooper Gosnell lacked probable cause to initiate the traffic stop, as there are no concrete standards to define the traffic offense of “following too closely” and because Trooper Gosnell's own driving actions “caused Mr. Mora-Alvaraz'(sic) allegedly illegal driving pattern”; (ii) after completing the traffic stop, Trooper Gosnell “re-seized” Mr. Mora-Alvarez by asking to search the vehicle and proceeding to conduct a canine search, all without probable cause; and (iii) the dog's inconclusive “alert” did not provide probable cause for Trooper Gosnell to conduct a hand-search of Mr. Mora-Alvarez's vehicle.

         Following the hearing, Magistrate Judge Gallagher orally recommended that Mr. Mora-Alvarez's motion be denied. Judge Gallagher stated, in pertinent part, that: (i) because “we're in a motions hearing position, . . . the evidence must be looked at in the light most favorable to the government”; (ii) that the initial traffic stop was premised upon Mr. Mora-Alvarez driving in the left lane without passing, a violation of Colorado law, and that Trooper Gosnell had reasonable suspicion to stop Mr. Mora-Alvarez for that violation; (iii) that Trooper Gosnell also had reasonable suspicion to stop Mr. Mora-Alvarez for the separate violation of “following too closely, ” as Mr. Mora-Alvarez was “within two car lengths or one second” behind a leading vehicle while traveling at 65-70 mph, relying upon U.S. v. Hunter, 663 F.3d 1136 (10^th Cir. 2011); (iv) to the extent that Trooper Gosnell extended the stop by consulting the EPIC database, Trooper Gosnell had reasonable suspicion to do so based on his observations of various matters - Mr. Mora-Alvarez's shaking, nervousness, his California driver's license and Nevada license plates, the registration of the vehicle in a different name, a salvage title and high mileage on the vehicle, and various other factors, taken together; (v) that Trooper Gosnell's exchanges with Mr. Mora-Alvarez about his travel plans did not materially contribute to any further suspicion on Trooper Gosnell's part; (vi) that Trooper Gosnell had reasonable suspicion to extend the encounter to conduct the canine search, over Mr. Mora-Alvarez's objection, apparently because Mr. Mora-Alvarez demonstrated “tunnel vision because of his nervousness” by failing to recall that Trooper Gosnell had returned his documents, because Trooper Gosnell observed Mr. Mora-Alvarez to be sweating heavily, and possibly because Mr. Mora-Alvarez stated that he wanted to go to the bathroom but refused Trooper Gosnell's invitation to do so by the side of the road; and (vii) that the canine unit's giving of a preliminary alert, but not a final one, nevertheless provided probable cause to conduct a physical search of the vehicle, pursuant to U.S. v. Moore, 795 F.3d 1224 (10^th Cir. 2015).

         Mr. Mora-Alvarez filed timely Objections (# 56) to the Magistrate Judge's Recommendation, arguing: (i) the Magistrate Judge applied an incorrect standard in evaluating the evidence by viewing it in the light most favorable to the Government; (ii) the Magistrate Judge erred in finding that “reasonable suspicion, ” rather than probable cause, was sufficient to justify the initial traffic stop; (iii) Trooper Gosnell failed to provide sufficient factual detail about the particular circumstances to justify the conclusion that he had probable cause to stop Mr. Mora-Alvarez for a passing lane violation; (iv) that Trooper Gosnell's own violations of Colorado traffic law while approaching Mr. Mora-Alvarez (speeding in excess of 100 mph, remaining in the left lane without passing, etc.) “[created] a myopic view of circumstances” that call into question Trooper Gosnell's conclusions about whether Mr. Mora-Alvarez was following too closely behind another vehicle; and (v) in relying upon Mr. Mora-Alvarez's nervousness as grounds to prolong the stop, the Magistrate Judge erred in not considering whether Mr. Mora-Alvarez believed that Trooper Gosnell “was targeting him and attempting to manufacture probable cause, ” and that the Magistrate Judge further failed to weigh the totality of the circumstances because of the Magistrate Judge's articulation of an improper standard of review.

         ANALYSIS

         A. Standard of review

          The Magistrate Judge's Recommendation was issued pursuant to 28 U.S.C. §636(b)(1)(B). Under that statute, this Court makes a “de novo determination of those portions of the . . . recommendations to which objection is made.” Notably, the requirement is that this Court conduct a de novo determination, not necessarily a de novo hearing. The Court is possessed of wide discretion to accept, reject, or modify the Magistrate Judge's proposed findings, including resolving issues of credibility. U.S. v. Raddatz, 447 U.S. 667, 676 (1980).

         B. Magistrate Judge's announced standard

          The Magistrate Judge twice stated that he was applying a standard whereby “the evidence must be looked at in the light most favorable to the government.” This standard governs appellate review of a trial court's decision to suppress evidence, but the trial court has the obligation in the first instance to assess the credibility of witnesses and determine the weight to be given to the evidence presented. U.S. v. Hernandez, 847 F.3d 1257, 1263 (10^th Cir. 2017).

         Mr. Mora-Alvarez argues that, because the Magistrate Judge announced an incorrect standard, this Court should conduct its own de novo hearing. Such an argument has a superficial appeal. To the extent that the Magistrate Judge was required to make findings about the credibility of Trooper Gosnell, an argument could be made that the Magistrate Judge's deference to the Government forced the Magistrate Judge to credit testimony by Trooper Gosnell. In contrast, had the Magistrate Judge applied the correct standard, the Magistrate Judge might have chosen to discredit that same testimony. If the Magistrate Judge's credibility findings are suspect, Raddatz strongly implies that this Court should conduct a de novo hearing. 447 U.S. at 676 n. 7 (a trial court rejecting a Magistrate Judge's credibility findings and substituting its own assessment of witnesses' credibility “without seeing and hearing the witness [ ] whose credibility is in question could well give rise to serious questions”).

         But a careful review of the entire record reveals no credibility determination that bears upon the issues raised. Mr. Mora-Alvarez notably argues in his Objections that the Magistrate Judge “made no findings as to the credibility of Trooper Gosnell”. More importantly, Mr. Mora-Alvarez makes no challenge to the ...