The opinion of the court was delivered by: Hon. Robert Holmes Bell
Defendant Antonio Rodriguez is charged with possession with intent to deliver cocaine and heroin. This matter is before the Court on Defendant's motion to suppress, as corrected and supplemented (Dkt. Nos. 14, 15, 18), in which he seeks suppression of evidence seized during a warrantless search of his vehicle. An evidentiary hearing was held on Thursday, March 11, 2010. For the reasons that follow, Defendant's motion to suppress will be denied.
A video-recording was made of the traffic stop at issue in this case. The Court carefully reviewed the recording from the time of the stop to the time the vehicle was taken to the State Police post. The Court makes the following findings of fact based upon the testimony of Michigan State Police Trooper Dennis Diggs, the exhibits received at trial, and the video recording of the traffic stop.
Diggs has been a Michigan State Police Trooper for almost sixteen years. He has been trained in the interdiction of narcotic drugs and hidden compartments. During the two years that he has been assigned to I-94, he has found several hidden compartments in vehicles he has stopped. The Court found Diggs' testimony to be highly credible. He impressed the Court with his professional, mild-mannered, and non-adversarial demeanor both on the witness stand and during the video-recorded traffic stop.
On the morning of December 1, 2009, Trooper Diggs was parked in the median of I-94, monitoring eastbound traffic, when he noticed a group of three or four vehicles. One of the vehicles, a Kia Sedona van, caught his attention because the driver leaned back in an apparent attempt to hide himself behind the door post as he passed the patrol car and then slowed down, increasing the distance between the van and the other vehicles in the group. The van pulled to within one or two car lengths of a semi-trailer and then followed the semi-trailer at a distance of three or four car lengths.
Diggs followed the van for some distance before activating his lights and pulling the vehicle over near Sawyer Road at approximately 8:36 a.m. Diggs approached the passenger side of the van and advised Defendant, the driver of the van, that he had been driving too closely behind a semi-trailer. Diggs immediately noticed the strong odor of air fresheners. The smell was significant to Diggs because air fresheners are commonly used to mask the odor of narcotics. Diggs asked Defendant where he was going and why. Defendant advised that he was driving to Southfield, Michigan, for his cousin's bachelor party, that the party was on a Thursday night, and that he did not know when the wedding would be. Diggs thought it was unusual for a bachelor party to be held on a Thursday and for an attendee not to know the date of the wedding. Defendant then advised that he did not own the vehicle that he was driving. This information was also significant to Diggs because it is not uncommon for someone engaging in illegal activity to drive a third party's vehicle.
Diggs directed Defendant to stand in front of the police car while he checked Defendant's license, registration and insurance papers from inside his patrol car. After approximately twelve minutes, Diggs motioned for Defendant to get in the patrol car because it was cold outside. Defendant got in the back seat of the patrol car at approximately 8:52. Diggs advised Defendant that his paperwork "checked out" and that he was going to let him go without a ticket. Diggs returned Defendant's paperwork, advised him of the need to keep a safe distance, gave him some rules of thumb on how to gauge a safe distance, and at 8:53 told him that he was "good to go."
Diggs then said, "Let me ask you something," and began asking Defendant further questions about Defendant's travel, the ownership of the van, Defendant's relationship to his cousin, Defendant's arrest history, and whether there was anything illegal in his vehicle. Had Defendant left the patrol car, or indicated a reluctance to stay and answer the questions, Diggs would have let him go. However, Defendant did not make any effort or request to leave. Diggs talked to him in a non-threatening, non-accusatory manner, and Defendant answered all of his questions. Diggs noticed that when he asked Defendant whether there was contraband in his car, Defendant showed signs of stress by breaking eye contact and lowering his voice. At 8:57 Diggs asked if he could search Defendant's car, and Defendant consented. Diggs advised that he had some other troopers with him, and asked twice more whether it was alright to search, and Defendant agreed twice more that it was.
Two additional troopers, Troopers Duane Shears and James Gillespie, arrived on the scene. Diggs told Defendant to stand 25 feet in front of the van while they searched it. The troopers quickly determined that the van had been modified: the floor rails had been cut, there were non-factory screws in the floor rails, the undercarriage had been spray painted; there was after-market speaker wire by the passenger floor board, but no after-market speakers; there was no room for even a small spare tire in the location where the spare tire normally attached to the frame; and the muffler had been cut off. The troopers suspected that the undercarriage of the vehicle had been "built down" to hold a secret compartment. The troopers initially searched the van by hand. Later they employed power tools. They took out the rear seats and the carpet in the rear of the van. Although the evidence suggested a secret compartment, the troopers were unable to gain access to it.
While the other two troopers were searching the vehicle, Diggs returned to his patrol car and contacted the El Paso Intelligence Center ("EPIC") to run a check on Defendant. He learned that Defendant was listed as a subject in a current investigation by the Drug Enforcement Agency in Chicago.
At 9:27 Diggs motioned Defendant back to the patrol car. The troopers explained that they had found things that were not right with the van, and that they wanted to bring it somewhere where they could search it more thoroughly. They advised Defendant that he was not being arrested, but was merely being detained. At 9:29 they handcuffed him, patted him down, and placed in the patrol car where he was given his Miranda rights.
Defendant's car was driven to the Michigan State Police Bridgman Post and searched again. A trained narcotics dog alerted on the rear compartment of the van. When battery cables were applied to the after-market speaker wire, a latch unlocked, and the troopers were able to raise a section of the floor to reveal a hidden compartment under the rear seat. The troopers found and seized two kilograms of heroin and ten kilograms of cocaine. Two more kilograms of heroin were found during a later search of the front of the vehicle.
Defendant challenges the legality of the search. He contends that he was detained long after the purpose of the initial traffic stop had ended without any reasonable and articulable suspicion that criminal activity was afoot. He accordingly contends that his consent to search and the evidence recovered from his vehicle must be suppressed as the fruit of an unlawful search and seizure.
Defendant contends that all of the evidence is subject to suppression because the trooper did not have probable cause for the traffic stop, and the evidence ...