United States v. Beider

          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 (10^th 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 (10^th 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 (10^th 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.” ...