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United States v. Romero-Mendez

United States District Court, S.D. Indiana, Indianapolis Division

May 14, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
GUSTAVO ROMERO-MENDEZ a/k/a GUSTAVO ROMERO 01, Defendant.

          ENTRY ON MOTION TO SUPPRESS

          TANYA WALTON PRATT, JUDGE.

         This matter is before the Court on Defendant Gustavo Romero-Mendez a/k/a Gustavo Romero's (“Romero”), Motion to Suppress (Filing No. 34). Romero is charged with violating 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(vi)-possession with intent to distribute fentanyl. He asserts that his vehicle was stopped without probable cause, the stop was unreasonably long, and the search of his vehicle was without probable cause, justifying suppression of evidence found during the search. On April 23, 2018, an evidentiary hearing was held on Romero's Motion. Pursuant to Federal Rule of Criminal Procedure 12(d), the Court now states its findings of fact and conclusions of law and determines that the Motion to Suppress should be denied.

         I. FINDINGS OF FACT

         For approximately seven years, Officer David Glover of the Richmond, Indiana Police Department (“Officer Glover”) has been assigned to the Pro-Active Criminal Enforcement unit (“PACE”).[1] While conducting PACE patrol On August 22, 2016, Officer Glover received information from Deputy Nick Ernstes (“Deputy Ernstes”) from the Hancock County Sheriff's Department, who had received a call from Indiana State Police Trooper Brad Smith (“Trooper Smith”) that they might want to look at a certain vehicle when it comes by. Officer Glover was given a description and the California license plate number of the vehicle. He ran the license plate number of the vehicle through the system to check for border crossings and noticed the vehicle had made numerous border crossings within an eight month period. Soon thereafter, Officer Glover observed Romero's silver Mazda 6 sedan with the particular license plate number, driving on Interstate 70 near Exit 131.

         Romero disputes issues of material fact with respect to the Government's briefing and officers' affidavits; however, several dashboard camera (“dash cam”) videos of the traffic stop, canine search and seizure exist and the Court is able to resolve any factual disputes using the video evidence (Filing No. 39) and testimony from the hearing.

         Officer Glover entered the roadway behind the silver vehicle and at a point, Romero's vehicle is following closely behind a tractor-trailer. Officer Glover pulled Romero's vehicle over on the ramp for Exit 131. Officer Glover approached the vehicle, and observed that Romero and his passenger, Susana Orozco (“Orozco”) were the only persons in the vehicle. Officer Glover noticed a strong odor of air fresheners inside of the vehicle. After asking for Romero's driver's license, registration, and proof of insurance, Officer Glover requested that Romero step out of the vehicle and asked for Orozco's identification. Officer Glover asked Orozco several questions, including where she and Romero were traveling, where she lives, and what was her relationship to Romero. Orozco told Officer Glover that they were traveling to Middletown, Ohio, that she lives in Oakland, California, and that she and Romero are friends and are possibly dating. She further indicated that she has not known Romero for a very long time.

         Once Officer Glover completed his questioning of Orozco, he went back to Romero and asked him to exit the vehicle and sit in the front seat of his patrol car. As Romero exited his vehicle, he dropped what was later determined to be a methamphetamine pipe onto the ground by the driver's door and is seen on the video kicking the pipe under the car.

         While sitting in the patrol car, Officer Glover began to process Romero's information on his laptop computer and he asked Romero several of the same questions he had asked Orozco. Romero initially indicated that he and Orozco were heading toward Middletown, but he corrected himself and said that they were traveling to Daytona, and again corrected himself saying Dayton, Ohio to visit one of his friends. Additionally, Romero stated that he and Orozco are just friends but that they have known each other for a while. When Officer Glover asked Romero where Orozco is from, he responded that she is from San Francisco rather than Oakland. Romero volunteered that he is married but that he does not talk about his wife with Orozco. While processing information on his laptop computer, Officer Glover continued to engage in “small talk” asking Romero questions such as what he does for a living and how long they plan to stay in Dayton. After several minutes of questioning Romero, Officer Glover explained that he stopped him because he had been following the tractor trailer too closely and that Indiana recommends leaving about two or three seconds between cars while driving on the Interstate.

         Approximately thirteen minutes after Officer Glover initially stopped Romero's vehicle, Deputy Ernstes arrived on the scene with his K-9 partner, “Manni”. Officer Glover exited his patrol car to talk to Deputy Ernstes about what he had observed. Officer Glover specifically indicated that Orozco and Romero had conflicting answers as to where they were traveling and where Orozco was from and noted that there was approximately a nine-year age difference between them, leading Officer Glover to believe the couple does not actually know one another. Based on these observations, Officer Glover asked Deputy Ernstes to conduct a dog sniff with Manni around Romero's vehicle, as he sensed criminal activity. Officer Glover then returned to his patrol car and continued to process and complete standard checks using Romero's information. Officer Glover requested standard information from Romero, such as his height and Social Security number and continued to make “small talk”.

         Sergeant Jim Goodwin (“Sgt. Goodwin”), another member of the PACE unit, from the Henry County Sheriff's Department arrived on the scene with his canine “Cain, ” but they did not participate in the dog sniff analysis. While Officer Glover remained in his police car with Romero, Deputy Ernstes guided Manni to Romero's vehicle to conduct a dog sniff analysis. During this process, Manni showed interest in a Kleenex on the roadway near the driver's side door, but Deputy Ernstes directed Manni away from the Kleenex. Deputy Ernstes explained that he directed Manni away because the Kleenex was an unknown hazard. Upon closer inspection, prior to any search of the vehicle, Deputy Ernstes located a glass pipe commonly used for taking methamphetamine, underneath the car by the driver's door, near the area where the Kleenex was observed. After guiding Manni around the vehicle several times, Deputy Ernstes gave a thumbs up sign to Officer Glover and reported that Manni showed a great deal of interest to the trunk of Romero's vehicle and near the driver's door.

         Based upon his belief that the dog sniff resulted in a positive indication of drugs and Deputy Ernstes' discovery of a methamphetamine pipe, Officer Glover handcuffed Romero and allowed him to remain seated in the passenger seat of his patrol car. Officer Glover then began to search through the trunk of the vehicle and discovered more than two kilograms of fentanyl. Once Officer Glover confirmed that drugs were found in the vehicle, Romero was informed of his Miranda rights and arrested for possession of narcotics. Thereafter, Romero made certain admissions.

         II. DISCUSSION AND CONCLUSIONS OF LAW

         In his Motion to Suppress, Romero asserts that the evidence obtained against him as a result of the traffic stop and the subsequent search of his vehicle violated the Fourth and Fifth Amendments of the United States Constitution (Filing No. 34; Filing No. 35). Specifically, he argues that (1) Officer Glover lacked probable cause to conduct the traffic stop; (2) the traffic stop was unreasonably prolonged; (3) the search of his vehicle was not supported by probable cause; and (4) his statements cannot be considered when determining the existence of probable cause or otherwise used against him. Id. In contrast, the Government contends that the video of the traffic stop demonstrates Office Glover had sufficient probable cause to conduct a traffic stop, that the traffic stop was not unreasonably prolonged, and that Officer Glover developed reasonable suspicion of a crime independent of the traffic violation to justify the deployment of Manni and the subsequent search of Romero's vehicle (Filing No. 37).

         A. Need ...


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