United States District Court, D. Colorado
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 (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).
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
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