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United States v. Jaimes-Molina

United States District Court, N.D. Indiana, Fort Wayne Division

October 12, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
IVAN JAIMES-MOLINA, Defendant.

          FINDINGS, REPORT, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(B)(1)(B) & C

          PAUL R. CHERRY, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court on Defendant's Motion to Suppress Physical Evidence and Incorporated Memorandum in Support Thereof [DE 28], filed by Defendant Ivan Jaimes-Molina on April 5, 2018. Jaimes-Molina asks the Court to suppress all evidence seized by law enforcement agents obtained in violation of the Fourth Amendment on or about November 29, 2017, arguing that Sergeant Todd McCormick unreasonably extended the traffic stop to conduct a dog sniff.

         On April 18, 2018, District Court Chief Judge Theresa L. Springmann entered an Order [DE 30] referring this matter to the undersigned Magistrate Judge for a report and recommendation on the instant motion pursuant to 28 U.S.C. § 636(b)(1)(B). This Report constitutes the undersigned Magistrate Judge's combined proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). Finding that Sergeant McCormick did not unreasonably prolong the six-minute traffic stop, the Court recommends that the District Court deny the Motion to Suppress.

         PROCEDURAL BACKGROUND

         Defendant Ivan Jaimes-Molina is charged by way of a two-count Indictment, charging him with knowingly and intentionally possessing with the intent to distribute a controlled substance, including 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and being an alien illegally and unlawfully in the United States in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5). See (ECF 13). The Indictment also includes a forfeiture allegation. Id.

         FACTUAL BACKGROUND

         On November 29, 2017, at approximately 1:42 a.m., Sergeant Todd McCormick of the DeKalb County Sheriff's Department stopped a Chrysler 300 for traveling 78 m.p.h. in a 70 m.p.h. zone on southbound Interstate 69. (Tr. 7, 10). After entering the highway in his patrol car and catching up to the speeding Chrysler, Sergeant McCormick initiated a traffic stop by activating his emergency lights; the Chrysler driver complied with the emergency lights and pulled to the side of the highway. (Tr. 12-13). At the hearing, Sergeant McCormick described the annual certification of his radar unit and his daily verification of the unit's accuracy. (Tr. 10-12). With him in the patrol car that night was his K-9 partner, Niko. (Tr. 14). Sergeant McCormick has been training and working with Niko as a certified drug detection dog for more than four years, including monthly training, and Niko reliably detects the odors of marijuana, heroin, ecstasy, methamphetamine, crack cocaine, and base cocaine. (Tr. 6, 25-29).

         After the Chrysler stopped, Sergeant McCormick notified dispatch of his location and the Chrysler's Florida license plate. (Tr. 13-14, 33). Sergeant McCormick approached the passenger side of the vehicle and spoke with the driver and sole occupant of the vehicle, later identified as Defendant Ivan Jaimes-Molina. (Tr. 14-15). At the hearing, Sergeant McCormick explained that his practice is to approach the passenger side of the vehicle to better see the driver and to stay out of harm's way from passing traffic; he also testified that limited visibility is a danger encountered with nighttime traffic stops. (Tr. 14-15).

         Once he reached the passenger side of the car, Sergeant McCormick told Jaimes-Molina that he stopped him for going 78 m.p.h. in a 70 m.p.h. zone, and Jaimes-Molina provided his driver's license and registration when asked. (Tr. 15, 16). Jaimes-Molina initially contested the speeding, saying that he was going the speed limit. (Tr. 16). The vehicle's interior had papers and trash scattered about, and it appeared to Sergeant McCormick that Jaimes-Molina had packed in a hurry, with piles of clothes in the back seat. (Tr. 17). Sergeant McCormick described Jaimes-Molina as appearing nervous, as evidenced by shaking hands and cryptic responses. (Tr. 20).

         Jaimes-Molina's driver's license was a temporary Florida license, and there was some initial confusion about Jaimes-Molina's name, as his last name appeared to be “Ivan” on the driver's license. (Tr. 16-18; Gov. Ex. 2). In Sergeant McCormick's experience, including his experience living in Florida, the red “temporary” notation on Jaimes-Molina's license indicated that he might be in the United States illegally. (Tr. 18); (Gov. Ex. 2). The vehicle registration was also from Florida, and the vehicle was owned by a male and female with a different address from Jaimes-Molina; Jaimes-Molina told Sergeant McCormick that the car belonged to a relative. (Tr. 16, 19; Gov. Ex. 3). Sergeant McCormick does not routinely ask for proof of insurance, but if information develops during the stop regarding insurance, he will then investigate this issue. (Tr. 17).

         Leaving Jaimes-Molina in his vehicle, Sergeant McCormick went back to his patrol car, intending to issue a written warning for speeding. (Tr. 20). Sergeant McCormick's general practice is to write a warning for driving less than 10 m.p.h. over the limit; however, if other problems are discovered through the records checks, he addresses those circumstances (such as a stolen vehicle, an arrest warrant, additional charges, etc.) in addition to issuing the warning. (Tr. 22-24, 55).

         During the time Sergeant McCormick was in his patrol car writing the warning, other officers were making radio requests related to separate investigations, including a domestic violence investigation that later caused the re-routing of Sergeant McCormick's initial backup. (Tr. 21, 43). Although he had called in the license plate and his location before initially exiting his patrol car, Sergeant McCormick had not yet gotten a response back from dispatch. (Tr. 21). Sergeant McCormick explained that the officers' vehicles are not equipped to do license plate or driver's license searches from the vehicles; the officers must radio in the request to dispatch. Id.; see also (Tr. 35). There is only one radio channel and one dispatcher for all the officers with the DeKalb County Sheriff's Department and the cities of Butler and Waterloo. (Tr. 21). In order to get the information from dispatch regarding the license plate that he had previously submitted, Sergeant McCormick has to make a radio call and, using a code, ask for a “read back.” Id.

         Sergeant McCormick testified that, with the radio initially occupied with other officers' requests, he filled out the paperwork for the warning and then exited his car with his certified K-9 partner and with Jaimes-Molina's documents and the written warning in hand. (Tr. 24). Once outside his car with the K-9, Sergeant McCormick read the driver's license number to dispatch over the radio and then deployed the K-9. (Tr. 24; Gov. Ex. 5).

         Upon sniffing the license plate area of Jaimes-Molina's vehicle, the K-9's behavior immediately changed, demonstrating that he was “in odor, ” and the K-9 then aggressively sniffed along the driver's side of the car. (Tr. 24-25, 27, 31). This immediate behavior change was “every bit as much of an alert as the sit.” (Tr. 54, 65). The K-9 alerted again to the presence of drug odor by sitting at the driver's door. (Tr. 24, 31-32). At that point, Jaimes-Molina rolled down his window and asked if everything was okay. (Tr. 24). In Sergeant McCormick's training and experience, Jaimes-Molina's actions were unusual and indicative of concern about concealing illegal drugs. (Tr. 25).

         By the time the K-9 alerted, Sergeant McCormick had not received the return of information from dispatch regarding the driver's license or the vehicle registration. (Tr. 32). Even if the K-9 had not alerted, Sergeant McCormick still had to resolve the issues with the driver's license and the vehicle ownership, give Jaimes-Molina the written warning for speeding, and return Jaimes-Molina's documents. (Tr. 32-33; Gov. Ex. 6).

         Sergeant McCormick testified that he decided to deploy his K-9 because he was concerned about the word “temporary” on Jaimes-Molina's driver's license, the fact that Jaimes-Molina was traveling from Michigan to Florida late at night, the lack of luggage, and the men's clothing strewn about in a manner consistent with someone living out of a car and not staying anywhere for any length of time. (Tr. 29-30, 52-53). In Sergeant McCormick's experience, Michigan is a source state for drugs, so he concentrates on the south-bound vehicles. (Tr. 30). DeKalb County is approximately 20 to 25 miles from the Michigan border. Id. Sergeant McCormick testified that it seemed odd to him that Jaimes-Molina was traveling from Michigan to Florida in a vehicle that did not belong to him; he explained that one sign of a drug courier is driving a vehicle that belongs to someone else. (Tr. 46-47). Sergeant McCormick testified that a certain amount of nervousness is not fairly common in a traffic stop. (Tr. 51).

         Sergeant McCormick has been a DeKalb County officer assigned to patrol duties for about eight years and has stopped well over 5, 000 vehicles. (Tr. 4-5, 20). Prior to working for DeKalb County, Sergeant McCormick was a reserve officer in Allen County for about a year, and he was a flooring contractor for about 20 years. (Tr. 5). Sergeant McCormick graduated from the Indiana Law Enforcement Academy, has ongoing training specializing in drug investigations and K-9 handling, and was promoted to the rank of sergeant about two years ago, supervising the six officers on his shift. (Tr. 4, 6-7, 30).

         Sergeant McCormick's police car was equipped with an in-car camera system, with a camera recording the events to the front of the patrol car and with a second camera recording the events inside the patrol car. (Tr. 8-9; Gov. Ex. 1, 4). Once the lights or siren are activated, the in-car system captures video beginning about two minutes prior to the activation. (Tr. 12-13).

         The front camera view video recording shows the following timeline of events, identified by the time-of-day counter on the video:

01:41:17 The Chrysler passes Sergeant McCormick's position.
01:41:20 Sergeant McCormick departs the shoulder and enters the highway.
01:42:05 Sergeant McCormick engages his police lights.
01:42:15 The Chrysler begins to slow down, pulls over, and then stops on the highway shoulder at 01:42:31.
01:43:08 After exiting and walking behind his police car, Sergeant McCormick reaches the passenger side of the Chrysler.
01:43:57 Sergeant McCormick walks back to the police car with a license and registration in hand.
01:44:12 The sound of a door closing is heard.
01:46:27 Sergeant McCormick responds to a radio ...

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