United States District Court, D. Colorado
OPINION AND ORDER OVERRULING OBJECTIONS, ADOPTING
RECOMMENDATION, AND DENYING MOTION TO SUPPRESS
S. Krieger Chief United States District Judge
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
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.
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.
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.
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.
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.
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.
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 (10th 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
(10th Cir. 2015).
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.
Standard of review
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
Magistrate Judge's announced standard
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 (10th Cir. 2017).
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”).
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 ...