United States v. Leon

          OPINION AND ORDER OVERRULING OBJECTIONS AND DENYING MOTION TO SUPPRESS

          Marcia S. Krieger, Senior United States District Judge.

         THIS MATTER comes before the Court on Mr. Leon's Objections (# 57) to the Magistrate Judge's Recommendation (# 48) that Mr. Leon's Motion to Suppress (# 23) be denied, and the Government's response (# 58).

         FACTS

         Mr. Leon is charged in a one-count Indictment (# 1) with possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). Mr. Leon was apprehended in a traffic stop on Interstate 70 near Grand Junction, Colorado on December 28, 2017. A physical search of the vehicle yielded the drugs in question. Mr. Leon moved (#23) to suppress the search on various grounds as discussed infra. The Court referred the motion to the Magistrate Judge for a recommendation. The Magistrate Judge conducted a two-day evidentiary hearing on December 12 and 28, 2018. On February 12, 2019, the Magistrate Judge issued a Recommendation (# 48) that Mr. Leon's motion be denied. Mr. Leon filed timely Objections (# 57) to that Recommendation, and the Court now considers those Objections.

         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).

         On December 28, 2017, at approximately 7:20 a.m., Colorado State Trooper Shane Gosnell was parked at an emergency crossover, observing eastbound traffic on Interstate 70 near the Mack, Colorado exit. He observed a silver pickup truck traveling in the left lane with no other traffic around it. Believing that the driver of the pickup truck was in violation of Colorado traffic law, Trooper Gosnell pulled out with the intent to stop and cite the driver. Trooper Gosnell testified that, due to terrain and highway conditions, the vehicle was “out of my sight for just a few moments as I was catching up.”^[1] Trooper Gosnell, traveling in the left lane, approached the rear of the pickup, now traveling in the right lane. Trooper Gosnell testified that he did so to ascertain how many occupants were in the vehicle and to look for any other violations. Shortly thereafter, he dropped back, pulled behind the pickup, and activated his emergency lights. The pickup promptly pulled over to the side of the road.

         The Court pauses at this point in the narrative to determine whether Trooper Gosnell's initial stop of the vehicle was supported by reasonable suspicion. It was. Trooper Gosnell's testimony was that he observed the pickup driving in the left hand lane of the highway while no other traffic was present. C.R.S. § 42-4-1013(1) provides that, on a highway such as Interstate 70, “a person shall not drive . . . in the passing lane . . . unless such person is passing other motor vehicles.” Mr. Leon argues in his Objections that Trooper Gosnell “did not in fact observe the violation claimed, rather it was a pretext for the stop.” But there is no evidence in the record that fundamentally disputes Trooper Gosnell's version of events - e.g. Mr. Leon did not testify that, contrary to Trooper Gosnell's assertions, he remained in the right lane of the highway at all pertinent times. Mr. Leon is correct that there are minor discrepancies in Trooper Gosnell's testimony on certain collateral details (such as whether the pickup was out of his sight for mere “moments” or a lengthier period of time, or whether the pickup returned to the right lane before or after Trooper Gosnell activated his emergency lights), but those discrepancies do not meaningfully undercut Trooper Gosnell's credibility regarding initially observing the pickup driving in the left lane without passing. The Magistrate Judge found Trooper Gosnell credible on this point and this Court sees nothing in the record that would suggest that that finding is erroneous. Accordingly, the Court credits Trooper Gosnell's testimony and finds that the initial stop was justified by a reasonable suspicion that the driver of the pickup truck had violated C.R.S. § 42-4-1013(1).

         C. Initial contact with Mr. Leon

         After coming to a stop, Trooper Gosnell immediately left his vehicle and approached the passenger side of the pickup. Trooper Gosnell testified that, as he approached the vehicle, he glanced in the windows, both for safety purposes and to look for “potential indicators of criminal activity.” Trooper Gosnell observed that “there were multiple boxes in the vehicle that were just kind of tossed in there, ” as well as “a bunch of clothing kind of thrown throughout the back seat of the vehicle.” Trooper Gosnell observed that “it didn't look like valuables or belongings that you would see someone pack carefully in a vehicle, ” but rather, that “it looked like things were just tossed in there recklessly.”

         Upon arriving at the passenger-side door, Trooper Gosnell also noted that the key that was in the car's ignition was alone on its key ring. Trooper Gosnell considered this suspicious, as “most people you encounter, when I get a new vehicle, the first thing I do is change out the key ring to put my house keys, mailbox keys, all of those things on it.” Trooper Gosnell also observed several food wrappers and drink containers on and around the passenger's seat. Trooper Gosnell described this as reflecting that the vehicle was “hard traveled, ” and that the driver had been “spending a lot of time in the vehicle.” He considered this suspicious as well, insofar as it would not be a “common thing” for a person who recently obtained a “new vehicle”^[2]would “throw all of that stuff in there and [allow] it to be messy in a very short period of time.” Trooper Gosnell testified that narcotics traffickers will “throw stuff in the vehicle for what I would term as a cover load, to make the vehicle harder to search.”

         The driver, now known to be Mr. Leon, rolled down the window and Trooper Gosnell explained the reason for the stop - that Mr. Leon had been driving in the left lane without passing. Mr. Leon's response is only minimally-audible on the video recording entered into evidence, but it appears that he apologized for the infraction and explained that “I've just been a little tired.” Trooper Gosnell asked for Mr. Leon's license and registration and advised that, if all the documents were in order, Trooper Gosnell would only be issuing him a warning. Mr. Leon was fairly talkative - Trooper Gosnell testified that he perceived Mr. Leon to be “exaggerated or animated” and “overly friendly” -- responding that “those laws apply everywhere, huh? I need to start complying with them.” Trooper Gosnell asked where he was headed. Mr. Leon replied that he was “going to stop at ISKCON, Denver. The International Society for Krishna Consciousness. I'm was going to stop there and pick up some books. Um, I believe there's going to be an event today.” Trooper Gosnell had doubts about this explanation, as he felt it was implausible that ...