United States District Court, D. Colorado
OPINION AND ORDER SUSTAINING OBJECTIONS AND GRANTING
MOTION TO SUPPRESS
MARCIA
S. KRIEGER CHIEF JUDGE
THIS
MATTER comes before the Court pursuant to Ms.
Beider's Objection (# 79) to the
Magistrate Judge's Recommendation (# 69)
that Ms. Beider's Motion to Suppress (#
22) be denied, and the Government's response
(# 80).[1]
FACTS
Ms.
Beider is charged in a one-count Indictment (#
1) with possession of controlled substances with
intent to distribute, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(B)(ii).
Ms.
Beider was apprehended following a traffic stop and canine
search that revealed Ms. Beider's vehicle to contain 15
bricks of cocaine. In this action, she moves (#
22) to suppress the fruits of that stop and search.
Specifically, Ms. Beider contends that the officer who
initiated the stop, Colorado State Trooper Shane Gosnell: (i)
lacked reasonable suspicion to believe that Ms. Beider had
committed a traffic infraction; (ii) unreasonably prolonged
her detention by summoning a canine unit without having
reasonable suspicion to do so, and (iii) conducted a
warrantless search based on an alleged canine alert when
there was no evidence of an alert. The Court referred Ms.
Beider's motion to the Magistrate Judge to conduct an
evidentiary suppression hearing and issue a recommendation.
The Magistrate Judge conducted the hearing over two days,
August 1 and September 4, 2018, and the end of the second
day, issued an oral recommendation that Ms. Beider's
motion be denied. Ms. Beider filed timely Objections
(# 79) to the Magistrate Judge's
recommendation, and the matter is now ripe for determination
by this Court.
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.
Initial stop
A
traffic stop is a seizure under the Fourth Amendment, and
thus the officer initiating it must have reasonable suspicion
that “this particular motorist violated any one of the
multitude of applicable traffic and equipment regulations of
the jurisdiction.” U.S. v. Salas, 756 F.3d
1196, 1200-01 (10th Cir. 2014). Whether reasonable
suspicion exists is an objective inquiry determined by the
totality of the circumstances; the officer's subjective
motivation for the stop is irrelevant. Id. at 1201.
The Government bears the burden of proving the reasonableness
of the officer's suspicion at all pertinent stages of the
encounter. U.S. v. Vance, 893 F.3d 763, 773
(10th Cir. 2018).
The
evidence at the hearing revealed the following. On September
16, 2016, Trooper Gosnell was parked in his patrol vehicle on
I-70 near Grand Junction, Colorado, observing eastbound
traffic. At approximately 3:30 p.m., he observed an
approaching group of vehicles that included a silver Volvo
SUV. As the Volvo passed Trooper Gosnell's location, he
observed the driver “lean back out of view.”
Believing the driver's behavior to be unusual, noticing
that the vehicle had a yellow license plate (which Trooper
Gosnell believed to be from New York), and knowing that this
particular model of Volvo SUV has a “natural
void” in its floor design that makes such vehicles
particularly attractive vehicles to drug traffickers, Trooper
Gosnell decided to pull out and follow the vehicle.
Trooper
Gosnell observed the Volvo, which was traveling in the left
lane of the highway, make “an abrupt lane change”
into the right lane in front of a red sedan. Believing that
the Volvo had “approximately a car length or
less” of space in front of the red sedan when it
changed lanes, Trooper Gosnell concluded that the driver of
the Volvo had violated a Colorado traffic law. After allowing
nearby traffic to clear, Trooper Gosnell pulled alongside the
Volvo to “look for secondary violations, ” such
as unfastened seat belts. He observed that the driver
“was still leaning back out of view.” At that
point in time, he activated his emergency lights and signaled
the Volvo to pull over to the side of the highway.
Before
proceeding with analysis Trooper Gosnell's stop, the
Court pauses to address the testimony of David Dolan,
proffered by Ms. Beider under Fed.R.Evid. 702. Mr. Dolan
testified that he had previously been employed for many years
in law enforcement, but his current relevant experience was
in traffic investigation and accident reconstruction. Mr.
Dolan testified that he reviewed, among other things, Trooper
Gosnell's written report about the traffic stop as well
as the video recorded by Trooper Gosnell's dashboard
camera. Mr. Dolan disagreed that the driver of the Volvo was
leaning back and hidden from view when passing in front of
Trooper Gosnell's car, and identified certain still
frames from the dashcam video that, he opined, showed the
driver sitting upright. Mr. Dolan also disagreed that the
Volvo changed lanes too closely in front of the red sedan.
Based on observing road markings seen in the video, Mr. Dolan
opined that there was approximately 40 feet between the Volvo
and the red sedan when the Volvo moved into the right lane,
and that the lane change was not unsafe.
With
those facts in mind, the Court turns to the question of
whether Trooper Gosnell had reasonable suspicion to effect a
stop of the Volvo. There is a bit of ambiguity as to the
appropriate Colorado traffic statute implicated at this stage
of the analysis. Trooper Gosnell did not specify any
particular Colorado statute he believed was violated by the
Volvo's driver, other than to characterize the driver as
having made an “unsafe lane change.” Ms.
Beider's counsel, when cross-examining Trooper Gosnell,
first raised the suggestion that C.R.S. § 42-4-1007 was
“the lane change stated the trooper claims that the
silver Volvo violated.” In pertinent part, C.R.S.
§ 42-4-1007(1)(a) provides that, on any road divided
into multiple traffic lanes, “a vehicle . . . shall not
be moved from [its] lane until the driver has first
ascertained that such movement can be made with
safety.” In giving his oral Recommendation, the
Magistrate Judge concluded that two statutes were implicated:
C.R.S. §. 42-4-1007(1)(a), and also C.R.S. §
42-4-1008(1), which provides that a driver “shall not
follow another vehicle more closely than is reasonable and
prudent, having due regard for the speed of such vehicles and
the traffic upon and the condition of the highway.”
(The Magistrate Judge reasoned that the latter statute
applied because the Volvo's driver arguably “put
another vehicle in the position where it was following too
closely due to [the Volvo driver's] own actions.”)
It appears to this Court that the more applicable statute is
C.R.S. § 42-4-1003(1)(a), which provides that “the
driver of a vehicle overtaking another vehicle proceeding in
the same direction shall pass to the left . . . and shall not
again drive to the right side of the roadway until safely
clear of the overtaken vehicle.” Ultimately, however,
the distinction between the statutes is not particularly
important. Whether the Court applies C.R.S. §
42-4-1007's prohibition on changing lanes unless one can
do so “with safety” or C.R.S. §
42-4-1003's requirement that a vehicle not return to the
driving lane until “safely clear, ” the
applicable standard is some variant of the word
“safe.”
Colorado
law does not reduce that statutorily-adopted requirement of
“safe” lane changes to any precise measurements
or criteria, leaving a law enforcement officer some degree of
discretion in deciding whether a driver has violated the
statute. Trooper Gosnell testified that he considers several
factors in deciding whether a driver's lane change was
unsafe, including “speed limits, perception reaction
time, [and] stopping distance.” He also considers
“a recommendation by the Colorado Driver's Handbook
that [cars maintain] a minimum of three seconds”
between them. A car traveling at 75 m.p.h. - the speed limit
applicable to this portion of the highway and roughly the
speed that the Volvo and red sedan were traveling-- would
travel 330 feet in three seconds. Even adopting Mr.
Dolan's estimate of 40 feet of space between the Volvo
and the red sedan, at 75 m.p.h,, the red sedan would close
that distance in roughly one-third of one second. These
figures suggest that the dispositive issue is not whether the
Volvo's driver left the red sedan “one car
length” or about 15 feet (as Trooper Gosnell contends)
or 30-40 feet (as Mr. Dolan opines), or even whether 330 feet
of space was required. The pertinent question is not even
whether the Volvo's driver could have safely changed
lanes in the space available, as the reasonable suspicion
standard does not require Trooper Gosnell “to rule out
the possibility of innocent conduct.” U.S. v.
Vance, 893 F.3d 763, 774 (10th Cir. 2018).
The “reasonable suspicion” standard, which
requires evidence “considerably short of a
preponderance, ” merely requires Trooper Gosnell to
articulate a particularized, objectively-reasonable basis for
believing that the Volvo's driver changed lanes unsafely.
Even assuming the Volvo left the red sedan the 40 foot gap
suggested by Mr. Dolan, at highway speeds, the red
sedan's driver would have had only a fraction of a second
to respond to a sudden emergency, such as loose cargo falling
out of the Volvo or the Volvo's driver engaging in
emergency braking. In such circumstances, he Court cannot say
that Trooper Gosnell's belief that the Volvo's lane
change presented an undue safety risk was somehow
unreasonable. Accordingly, the Court finds that Trooper
Gosnell's decision to stop the Volvo was supported by
reasonable suspicion.
C.
Contact with driver
After
pulling the vehicle over, Trooper Gosnell exited his car and
approached the passenger side of the Volvo. At this time, the
Volvo's windows were up and a stiff wind was blowing, but
Trooper Gosnell testified that he detected an
“overwhelming odor of air freshener.” As he
approached the Volvo, he observed a medium-sized suitcase in
the back seat. The sole occupant of the Volvo - the driver --
had her license and registration ready and promptly handed
them to Trooper Gosnell. Trooper Gosnell observed that the
driver's (now identified to be Ms. Beider) hands were
shaking, which he attributed to be due to nervousness, but he
did not testify that her degree of nervousness was unusual.
Trooper Gosnell asked Ms. Beider about her travel plans, and
she responded that she was returning to her home in New York
after having visited her daughter in Los Angeles for
approximately a week, and that she was “just enjoying
the scenery on her way back.” Trooper Gosnell described
Ms. Beider's manner of speech as being “exaggerated
or very animated in her responses.” Trooper Gosnell
also observed “at least three air fresheners. They were
hanging on the shifter down on, like, the center console and
then there were some on the passenger's side
floorboard.” Trooper Gosnell testified that “they
weren't like the little tree air fresheners. They were
large, black in color.” ...