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United States v. Lopez

United States District Court, S.D. Alabama, Southern Division

January 24, 2017




         This matter comes before the Court on the Motion to Suppress (doc. 30) filed by defendant Joel Vazquez Lopez. The Motion has been briefed and is now ripe. The Court has reviewed the parties' legal memoranda, the written report prepared by Deputy Jason Kolbe of the Baldwin County Sheriff's Office, a 37-minute recording of the traffic stop from Deputy Kolbe's body camera, several other video recordings, and all other portions of the file deemed relevant.[1]

         I. Background Facts.

         The facts relevant to the Motion to Suppress are uncontested in material respects and are drawn in large part from a video recording of the incident, as well as a written police report prepared by the lead officer the next day.[2]

         At approximately 10:30 a.m. on September 19, 2016, Deputy Kolbe's patrol vehicle was stationary on I-10 near mile marker 51 in Baldwin County, Alabama. A white Nissan Altima traveling eastbound attracted his attention. The vehicle slowed markedly as it approached his location to a speed well below the posted limit, then failed to maintain its lane on two occasions. Deputy Kolbe followed the Altima and observed its occupants behaving in a manner that raised suspicion (i.e., the female driver was stiff and appeared “overly aware” of the officer's presence, the male passenger was watching the police vehicle in his rearview mirror and leaning back in his seat in an apparent attempt to avoid being seen). (Report, at 2.) Deputy Kolbe also observed an electronic device (either a GPS or a cell phone) “mounted high in the center of the front windshield that appeared to be obstructing the view of the driver.” (Id.) The video clearly depicts a full-size cell phone or GPS device affixed to the center of the Altima's front windshield, a few inches below the rearview mirror.

         Deputy Kolbe initiated a traffic stop of the white Altima near mile marker 57. The stated justification for the stop was that the front windshield was obstructed, in violation of Alabama law. Upon making the stop, Deputy Kolbe exited his patrol vehicle, activated his body camera, and approached the Altima on the passenger side. He greeted the occupants, Joel Vazquez Lopez and co-defendant Kellie Marie Truitt, and asked who owned the car. When Truitt responded that it was a rental, Deputy Kolbe asked if it came with the device mounted on the windshield. Defendants responded negatively. Deputy Kolbe then said, “Well, let me tell you why I stopped you. It has to do with that right there. In the state of Alabama, you're not allowed to have anything mounted to the front windshield of your car that can obstruct the windshield.” Truitt laughed and quickly indicated that it was her GPS. Deputy Kolbe then explained, “You may not realize this, but when you have something that's about five inches - which is about the size of that phone - and you're looking outside your window, it actually cuts out 15 feet of your view, so if you're making a lane change, you may possibly not see a car, so that's why we're really big on it.” Truitt said she felt like an “idiot, ” and Deputy Kolbe indicated there were other places she could place the GPS that would not obstruct the windshield.

         During this exchange, Deputy Kolbe's suspicions were heightened by the defendants' mannerisms and behavior. Lopez, who was in the passenger seat closest to Deputy Kolbe, appeared nervous, was breathing heavily and did not make eye contact. Truitt, who was in the driver's seat, also exhibited signs of nervousness, in her over-animated patterns of speech (which are discernable on the video), her heavy breathing, and her carotid artery pulsating on her neck. When Deputy Kolbe asked to see the car rental agreement, Truitt's hands trembled as she handed the paperwork to him. Lopez's identification showed a residence in Miami, Florida, while Truitt's identification showed a residence in Winter Park, Florida, several hours' drive away from Miami. Defendants confirmed those cities of residence to Deputy Kolbe. Curiously, the rental car agreement reflected that Truitt had rented the vehicle at Ontario International Airport in California four days earlier, and that the Altima was due to be returned to the same location on September 28, 2016, just nine days hence.

         Determining that these circumstances warranted further investigation, Deputy Kolbe invited Truitt to step out of the Altima and speak with him. She agreed. Truitt's responses to benign questions about the pair's travel itinerary did nothing to assuage Deputy Kolbe's concerns. To the contrary, Truitt said she had flown to California on vacation a week and a half earlier, that Lopez (whom she identified as her boyfriend) had flown to California before she did, that they were planning to move out to California so they were “looking around, ” and that they were driving back to Florida because it was “cheaper” than flying (even though Truitt indicated that Lopez worked for Southwest Airlines). Deputy Kolbe noticed that Truitt appeared quite nervous throughout this discussion.

         Just over five minutes after initiating the traffic stop, Deputy Kolbe invited Truitt to sit in the passenger seat of his patrol vehicle. She did so. At that time, Deputy Kolbe asked follow-up questions to try to make sense of her story. Truitt explained that she had driven from one airport to another in California to exchange rental cars because the car she had been issued originally was a “midsize” (just like the Altima) that was too small. Truitt indicated that she and Lopez were going to drive the Altima back to California to turn it in, which prompted Deputy Kolbe to ask in an incredulous tone of voice, “Well, then what the hell are you going to Florida for?” Truitt said that she had to work at her job as a waitress for a Disney resort restaurant, but that they were going to return the vehicle to California the following week because they were “still looking for a place to possibly move out there.” She rationalized that she did not want to miss work in the interim in case they did not find something (i.e., in case they decided not to move). Not surprisingly, Deputy Kolbe concluded that this story did not add up, so he extended the stop further to investigate. He ran both suspects' licenses, and then walked over to the Altima to ask questions of Lopez. For his part, Lopez indicated that the purpose of the California trip was “just have a fun vacation, ” and said he wanted to move out there. Lopez said they were driving home to Florida because it was “so expensive to fly, ” elaborating that even though he could fly back for free, it would have cost $600 for Truitt's airplane ticket. This explanation struck Deputy Kolbe as nonsensical, because the rental agreement reflected a charge of $546 for the vehicle, exclusive of gasoline, meals and hotel accommodations. Lopez also could not describe what the two of them had done in California, saying only in the vaguest of terms that they had gone to San Diego. In direct contradiction to Truitt's narrative, Lopez informed Deputy Kolbe that he did not know when they would go back to California, and that Truitt did not need to return to work until the following week.

         By now, Deputy Kolbe was confronted with conflicting stories that, individually and collectively, defied common sense and reason. He had accumulated substantial observations of their suspicious behavior, beginning before he initiated the traffic stop and extending through the signs of acute nervousness that they displayed upon questioning. At the 12-minute mark of the video, Deputy Kolbe asked Lopez directly if there were drugs in the car. He said no, and offered to allow Deputy Kolbe to search the contents of a large cooler in the back seat. Deputy Kolbe then left Lopez and conferred with his partner, Officer McElroy. The two officers recounted the many suspicious circumstances (i.e., flying separately to California for “vacation, ” inability to say what they did in California, exchange of a rental car for a similar-size vehicle ostensibly because the first car was not big enough, obligation to return the rental car in California the next week, and Truitt being a “nervous wreck”). Deputy Kolbe said to Officer McElroy, “Let's get this over with, ” and went back to the patrol car to speak with Truitt. At this time, 14 minutes had elapsed since the traffic stop began.

         Deputy Kolbe told Truitt, “it don't make no damned sense” why they did not fly back to Florida, particularly because the rental car cost nearly as much as a plane ticket. Truitt tried to blame Lopez, admitting that he could have flown to Florida for free and attributing the decision to drive to his stubbornness and her speculation that Lopez did not like to fly anymore. At the 16-minute mark, Deputy Kolbe informed Truitt he was going to write her a warning, not a ticket, for the windshield violation. Despite this announcement, Truitt's nervous behavior did not abate; indeed, Deputy Kolbe observed her continuing to rub her face, breathe heavily, laugh nervously and talk excessively. When Deputy Kolbe asked what they had done in California, Truitt said they had gone to Mexico; however, she could not offer any particulars as to their Mexican visit, except to explain that their reason for going was that she “had never been.” Deputy Kolbe asked how many days they had spent in California. Truitt appeared unable to answer, instead deflecting with a story about touching seals. She said they had not visited anyone, then admitted they had visited a realtor and Lopez's cousin, whom she did not like and whose name she did not know. She also could not identify the hotels where they had stayed.

         At the 20-minute mark, Deputy Kolbe asked Truitt directly what was in the trunk of that vehicle, and whether there were firearms, controlled substances or anything hidden in the car that he needed to know about. She answered negatively, insisting, “We just have our luggage.” Deputy Kolbe finished printing out the warning citation and handed it to Truitt. At that point, he asked, “You mind if I search your car?” Truitt said that she did mind. So Deputy Kolbe explained that he was going to run his K-9 unit around the Altima. When Truitt asked why, he responded, “You want me to be honest with you? I think you're hauling drugs. … I think y'all got a load of drugs in that car.” Truitt said she did not see why Deputy Kolbe needed to have the K-9 unit sniff for drugs. Deputy Kolbe replied, “I have more than enough reasonable suspicion to hold the vehicle and you.”

         After removing Lopez from the Altima and patting him down, Deputy Kolbe asked him what was in the trunk of the vehicle. Lopez said it was just their clothes. Deputy Kolbe notified Lopez that he was going to run his dog because he thought they were hauling drugs, based on their behavior, implausible travel itinerary and other circumstances. Deputy Kolbe retrieved his K-9 unit Aron (an 8-year old Belgian Malinois) from the back of his patrol vehicle at the 24-minute mark of the video. Aron alerted vigorously near the rear of the Altima, prompting Deputy Kolbe to comment to his partner, “It don't get much more solid alert than that.” In their ensuing search of the Altima, the officers discovered contraband items - later identified to be kilogram-sized bundles of cocaine - stuffed in the void between panels of the rear passenger doors. Both defendants were placed under arrest, handcuffed, and given Miranda warnings. On November 22, 2016, an Indictment (doc. 1) filed in this District Court charged Lopez and Truitt with conspiracy to distribute and to possess with intent to distribute approximately three kilograms of cocaine and one kilogram of heroin, all in violation of 21 U.S.C. § 846.

         II. ...

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