United States District Court, N.D. Indiana, Fort Wayne Division
FINDINGS, REPORT, AND RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(B)(1)(B)
R. CHERRY, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT.
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
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.
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.
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,
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).
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.
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.
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).
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
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).
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).
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).
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).
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).
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.
front camera view video recording shows the following
timeline of events, identified by the time-of-day counter on
01:41:17 The Chrysler passes Sergeant McCormick's
01:41:20 Sergeant McCormick departs the shoulder and enters
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
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 ...