MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO SUPPRESS
INTRODUCTION
Defendants, charged with trafficking in marijuana, move tosuppress marijuana discovered in the closet of a recreationalvehicle in Missouri. At the evidentiary hearing on May 18 and 19,2004, Carmelo Crivello of the Phelps County Sheriff's Department,and Defendants Sean Stark and Christopher Sugar testified. Afterhearing, the motion to suppress is ALLOWED.
FINDINGS OF FACT
On October 22, 2003, Carmelo Crivello of the Phelps CountySheriff's Department in St. Louis County, Missouri, was on theday shift patrolling I-Rte. 44. Because I-44 is a drug pipelineroute, in the Sheriff Department's view, it has an aggressivedrug interdiction practice there.1 At about 12:30 p.m., Crivello saw a large recreational vehicle(RV) with Vermont plates traveling in the right lane of a highwaydivided by a grass median. On Crivello's side, there were twolanes and a shoulder. Intentionally trailing the RV in thepassing lane for a half mile, Crivello hoped to discern a trafficviolation. Crivello wanted to find grounds to stop the RV tosearch for drugs because it had out-of-state plates and was on apipeline route. Crivello finally saw the right rear tire gocompletely over the "fog line," the white traffic linedemarcating the shoulder, once. Crivello activated his bluelights and pulled over the RV.
The RV was 40 feet long and 13 feet tall. The driver,Christopher Sugar, and passenger, Sean D. Stark, are 30-somethingmales. The driver, Christopher Sugar, had seen the marked cruiserin the passing lane and was making a deliberate effort to complywith traffic laws. The RV had been following a tractor-trailer,and Sugar believed that the wind turbulence from the trailer, or wind gusts, might have caused the RV to sway over theline. While he does not remember any swaying, he concedes it waspossible. I find that the right rear double tires went over thefog line on the shoulder once.
Crivello approached the driver who was opening the driver sidewindow. As there was no door on the driver side, he then went tothe passenger side. When the door opened, steps automaticallydropped down and Crivello ascended. When Crivello told the driverof the traffic violation — failure to maintain a single lane —Sugar attributed any problem to the tractor-trailer. Crivello didnot believe him because he did not see any tractor-trailer passthe RV. The men explained that they were going biking in Vermontbut again Crivello was skeptical. (The RV contained mountainbikes and camping gear). Crivello requested both licenses.Stark, the passenger, moved the CB radio away from the console toretrieve the licenses. Stark showed Crivello a note providingpermission from the owner to use the vehicle.
Commenting that lots of narcotics were transported on the road,Crivello asked both men if they were transporting anythingillegal and both stated no. Crivello then asked them to consentto a search of the RV and said that if they declined, he wouldcall a canine unit. When they both refused his request for asearch, Crivello next informed them that he was going to have thecanine come to respond to the scene while he wrote up a summons for the traffic violation. Crivello told Sugar to return toCrivello's police car and left Stark at the RV. Complying, Sugardid not appear nervous. Crivello then contacted SheriffBlankenship and requested that he respond with his canine. Starkcame to the cruiser to make small talk. To Crivello, Stark seemednervous because his hands were trembling and he seemed talkative.Stark asked if Crivello stopped them because they were two kidsdriving a motor home. No field sobriety test was done.
In the intervening time the record checks came back clean. Thelicenses were valid, and there was no criminal history. However,the licenses showed that both men were from Arizona, whichCrivello believed was a source state for drugs. Crivello told themen they were "free" to go to a nearby restaurant or hotel towait for the canine, but that they could not take the RV. The mendeclined and waited by the RV. After receiving the clean recordcheck, it took about 10 to 15 minutes more for the dog Nitro toappear. Altogether, the canine unit arrived about 20 minutesafter Crivello initially stopped the RV for the trafficviolation.
Once the canine unit arrived, the dog peed and then alerted tothe right rear of the RV. The assembled law enforcement officersthen entered the RV where they eventually found 376.9 pounds ofmarijuana in a locked closet. Stark and Sugar told the policethat they did not have the key to this closet and that the closet had been locked from the time they left Arizona. Admittingduring his testimony he lied to the police (and that he knewabout the marijuana), Stark testified he had a key to the closet,which had been hidden. Sugar testified he did not know where thekey was (and did not know the closet contained marijuana).
Crivello gave the following reasons for the Terry stop: (1)the RV had out-of-state plates; (2) the drivers were fromArizona, a "source" state on a known drug trafficking corridor;(3) Stark tried to kick the CB radio under the seat; (4) Crivellothought it was suspicious that the two men were going all the wayacross country just to mountain-bike in Vermont; and (5) Stark,the passenger, appeared nervous and talkative.
Crivello wrote up a traffic violation the next day but did notfile it in court until told to do so by the U.S. Attorney.
Both defendants testified at the hearing. I found Sugarcredible. He is employed, college-educated, and was honorablydischarged from the Army. Although he shares thesecharacteristics, Stark is less credible because he lied to thepolice and made a misleading statement in his affidavit. Starkhas "trembling limb syndrome" for which he takes medication.
DISCUSSION
A. The Fourth Amendment Applied to Traffic Stops The Fourth Amendment guarantees "[t]he right of the people tobe secure . . . against unreasonable searches and seizures." U.S.Const. amend IV. "As interpreted, the [A]mendment's prohibitionagainst unreasonable searches and seizures extends only toprotect those places and interests in which the accused can becharacterized as having a legitimate expectation of privacy."United States v. Cruz Jimenez, 894 F.2d 1, 5 (1st Cir. 1990)(citing Rakas v. Illinois, 439 U.S. 128, 140-50 (1978))."Demonstration of such an expectation is a threshold standingrequirement, and analysis cannot proceed further without itsestablishment." Id.
"A traffic stop, by definition, embodies a detention of thevehicle and its occupants." United States v. Chhien,266 F.3d 1, 5 (1st Cir. 2001). "It therefore constitutes a seizure withinthe purview of the Fourth Amendment." Id. (citing Delaware v.Prouse, 440 U.S. 648, 653 (1979)); see also Whren v. UnitedStates, 517 U.S. 806, 809-10 (1996) ("Temporary detention ofindividuals during the stop of an automobile by the police, evenif only for a brief period and for a limited purpose, constitutesa `seizure' of `persons' within the meaning of this provision.")."This means, of course, that the stop must be supported by areasonable and articulable suspicion of criminal activity, seeBerkemer v. McCarty, 468 U.S. 420, 439 (1984), and that thedetention must be reasonable under the circumstances, Whren v.United States, 517 U.S. 806, 809-10 (1996)." Chhien, 266 F.3dat 5-6. A reasonable, articulable suspicion is "more than a nakedhunch," but less than "either probable cause or evidence of adirect connection linking the suspect to the suspected crime."Id. at 6.
"In determining whether, in the absence of probable cause, aninvestigatory seizure and search violates the Fourth Amendment,[the First Circuit] use[s] the two-prong test set forth in Terryv. Ohio." United States v. Nee, 261 F.3d 79, 83 (1st Cir.2001). "First, we ask whether the officers' actions werejustified at their inception, and second, whether their actionswere reasonably related in scope to the circumstances whichjustified the officers' initial interference." Id. A court mustbe flexible in this analysis because, "while an officer's actionsmust bear some relation to the purpose of the original stop, hemay shift his focus and increase the scope of his investigationby degrees if his suspicions mount during the course of thedetention." Chhien, 266 F.3d at 6.
Moreover, "there is no talismanic time beyond which any stopinitially justified on the basis of Terry becomes anunreasonable seizure under the [F]ourth [A]mendment." UnitedStates v. McCarthy, 77 F.3d 522, 530 (1st Cir. 1996) (citationsomitted). Therefore, "[t]he reasonableness inquiry is almostalways fact specific." United States v. Owens, 167 F.3d 739,748 (1st Cir. 1999). "[A]n inquiring court must balance `thenature and quality of the intrusion on personal security againstthe importance of the governmental interests alleged to justify theintrusion.'" Chhien, 266 F.3d at 6 (quoting United States v.Sowers, 136 F.3d 24, 27 (1st Cir. 1998)).
"The Supreme Court has directed courts making this inquiry toexamine whether the police diligently pursued a means ofinvestigation that was likely to confirm or dispel theirsuspicions quickly, during which time it was necessary to detainthe defendant." Owens, 167 F.3d at 749 (citing United Statesv. Sharpe, 470 U.S. 675, 686 (1985)). Moreover, "[d]eference isdue to the experienced perceptions of the officers, but not blinddeference; these perceptions must be reasonable under anobjective standard." United States v. Woodrum, 202 F.3d 1, 7(1st Cir. 2000) (citing Ornelas v. United States, 517 U.S. 690,699-700 (1996)).
B. The Initial Stop
Sugar and Stark challenge Crivello's initial stop of the RVbased on Crivello's claim that the right rear double wheels ofthe RV crossed over into the right shoulder three times. Crivelloasserts that he had probable cause to stop the RV for a violationof Mo. Rev. Stat. § 304.015.5. The text of that statute reads, inrelevant part, "[w]henever any roadway has been divided intothree or more clearly marked lanes for traffic . . . [a]vehicle shall be driven as nearly as practicable entirely withina single lane" (emphasis added). While I find that Crivello is credible that the right reartires went completely over the "fog line" on the shoulder once,this movement does not constitute a violation of Missouri law.While the parties did not raise this issue, the section of Route44 on which the incident occurred was a two-lane highway, whichwould appear to fall outside the scope of the statute.
Furthermore, the phrase "as nearly as practicable" indicatesthat the statute was not intended to comprehend minor swerving.See United States v. Freeman, 209 F.3d 464, 466 (6th Cir.2000) ("[w]e cannot . . . agree that one isolated incident of alarge motor home partially weaving into the emergency lane for afew feet and an instant in time constitutes a failure to keep thevehicle within a single lane `as nearly as practicable'") (citingUnited States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996)(holding that a U-haul truck's similar one time entry into theemergency lane failed to constitute a violation of a statutenearly identical to the statute at issue)).
Because I find Sugar credible when he says he saw the markedcruiser and was attempting to comply with traffic laws, I find ithighly unlikely that the rear wheels went substantially onto theshoulder three times in half a mile. While Sugar did not deny thepossibility that a rear tire went over the line because it was alarge van, he did not notice a problem. Regardless, such one-timemovement was not a violation of the Missouri statute.Accordingly, the initial stop was not reasonable or justified by probable cause under Missouri law.
Because "the stop of the car is held unlawful, the drugs shouldbe suppressed as the fruit of the poisonous tree." United Statesv. Rowell, 2004 WL 555261 at *6 (D. Mass. March 18, 2004); seealso Wong Sun v. United States, 371 U.S. 471, 487-88 (1963)(holding that evidence that would not have been obtained but foran unlawful search must be excluded as "fruit of the poisonoustree").
C. The Continued Seizure
Even if the initial stop were justified, defendants argue thatCrivello did not have a reasonable suspicion to detain Sugar andStark beyond what was strictly necessary to effectuate thetraffic stop. Once Crivello checked Sugar's license, examined thenote authorizing Stark to use the RV and the registration, he hadall the information he needed to issue the citation for thetraffic violation. Rather than allowing Sugar and Stark tocontinue on their way, however, he held them there until a canineunit arrived. The question is whether this 10 to 15 minute-longseizure was justified by reasonable suspicion.
First, in his initial encounter with defendants, Crivello saidhe would hold the vehicle until the canine came if defendantsrefused to consent to a search. But an assertion of one'sconstitutional rights should not be the basis for an otherwiseunjustified detention. See Florida v. Bostick, 501 U.S. 429, 437 (1991) ("We have consistently held that a refusalto cooperate, without more, does not furnish the minimal level ofobjective justification needed for a detention or seizure.")(citations omitted). In fact, their refusal to consent to thesearch distinguishes this case from those in which thedefendant's own consent prolonged a traffic stop. SeeWilliams, 359 F.3d at 1020 (after a valid traffic stop at theSugar Tree exit, defendant "consented to a search of his vehicle. . . [which] revealed 593 pounds of marijuana"); Martinez, 358F.3d at 1007 ("[d]efendant voluntarily consented to search of hismotor vehicle after valid Sugar Tree traffic stop which revealed17 kilograms of cocaine); United States v. Hornbecker,316 F.3d 40, 45 (1st Cir. 2003) (after initial traffic stop, defendant"was twice told that he was free to go but consented to stay andcomply with the troopers' various requests," including a searchof his vehicle which revealed 400 pounds of marijuana); Chhien,266 F.3d at 8 (a "consensual pat-down search" revealed $2,000 incash which in turn "justified a brief period of additionalquestioning").
Second, Crivello reports that Stark's hands and voice weretrembling. While Stark's apparent nervousness and loquaciousnessare factors which Crivello, a trained officer, properlyconsidered, without more, they cannot justify Crivello's decisionto detain the defendants. Conceding that many people get nervouswhen stopped by the police, Crivello emphasized that it was unusual for a passenger to be nervous. Here, however, Crivellowas standing next to the passenger (not the driver) and requestedboth licenses. Also, the weight to be given to this factor isdiminished by the fact that the driver was not nervous.
Next, Crivello claimed that Stark tried to hide the CB antennaunder the seat with his foot. Both defendants denied this. Thistestimony is not credible because a CB is not illegal, and therewould have been no motivation to hide it under a seat. Instead,it was in front of the console on the floor where the documentswere kept. Stark moved the CB when he went into the console toretrieve the papers.
Finally, defendants gave a consistent story that they weretraveling to Vermont to go mountain-biking and offered proof,including the mountain bikes. The government argues that thedefendants' story was not credible: Why go biking in Vermont whenyou can bike in Arizona? However, October is prime foliage seasonin Vermont, and a plan to bike there hardly seems suspicious atthat time of year. Contrast Chhien, 266 F.3d at 4-7(conflicting stories were given to police questions by passengerand driver, a consensual frisk revealed $2,000 cash, afive-minute delay caused a passenger "to squirm in her seat" and"this fidgeting ultimately led the troopers to the contraband");United States v. Maldonado, 356 F.3d 130, 132-33 (1st Cir.2004) (police noted that the defendant was speeding, drivingwithout the corrective eyewear his license said he needed, hislicense had been suspended, he had not maintained the required logbookfor long distance trucking, and his story was inconsistent, allbefore calling for a canine unit); Owens, 167 F.3d at 747(police noted that the driver was speeding and had no license,the driver and passengers gave "conflicting responses" to police,including false names, and a check revealed that defendants hadmultiple prior convictions, all before calling for a canineunit); Sowers, 136 F.3d at 27-28 (holding that post-stopbehavior such as the inability to confirm identity, excessivenervousness and conflicting stories provided adequatejustification to prolong stop).
Thus, even if the initial stop were lawful under Missouritraffic law, I conclude that Officer Crivello did not havereasonable suspicion for holding the defendants until the caninearrived. While Officer Crivello's hunch turned out to be true,the fact that the defendants were from a source state headingacross the country for a bike trip on a known drug pipeline donot give rise to reasonable suspicion because too many people fitthis description. See Yousif, 308 F.3d at 828 (holding thatthe facts that defendant had out-of-state license plates and wastraveling on a highway that was a known drug trafficking corridoralone cannot justify the stop); see generally Reid v.Georgia, 448 U.S. 438, 441 (1980) (expressing concern in theairport search context about a drug courier profile that would"describe a very large category of presumably innocent travelerswho would be subject to virtually random seizures"). Even with the additionof the passenger's nervousness to the calculus, the governmenthas not surmounted the reasonable suspicion hurdle.
Because the detention was unreasonable under the FourthAmendment, anything resulting from it is excludable as fruit ofthe poisonous tree. See Wong Sun, 371 U.S. at 488.
E. Sugar's Standing
The government concedes Stark's standing because he knew wherethe key to the closet was, but argues that Sugar has no standingto contest the seizure because he had no legitimate expectationof privacy in the locked closet in which the drugs were found.See United States v. Soule, 908 F.2d 1032, 1034 (1st Cir.1990). The "person who claims [Fourth Amendment] protection" musthave a "legitimate expectation of privacy in the invaded place."Rakas, 439 U.S. at 130, 143 (holding that defendants had nostanding where they "conceded that they did not own theautomobile [searched] and were simply passengers; the owner ofthe car had been the driver of the vehicle at the time of thesearch").
While defendants acknowledge that they did not own the RV,"property rights are neither the beginning nor the end of [therelevant] inquiry." United States v. Salvucci, 448 U.S. 83, 91(1980). The court must inquire "not merely whether the defendanthad a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched." Id. at 92;see also Minnesota v. Olson, 495 U.S. 91, 96-97 (1990)(finding that an overnight guest has a protected expectation ofprivacy in the home in which he stays).
Generally speaking, persons who borrow cars have standing tochallenge searches of the borrowed vehicles. Compare UnitedStates v. Baker, 221 F.3d 438, 442-43 (3d Cir. 2000) (holdingthat the driver of a borrowed car "had the requisite legitimateexpectation of privacy to support standing for Fourth Amendmentpurposes") (citing multiple cases from other circuits); UnitedStates v. Garcia, 897 F.2d 1413, 1418-19 (7th Cir. 1990)(holding that because the government was unable to prove that atruck in which illegal drugs were discovered was stolen, thedriver and passenger had standing to challenge the search);United States v. Miller, 821 F.2d 546, 549 (11th Cir. 1987)(holding that the driver of a car who had permission to use thecar had standing to challenge its search); United States v.Posey, 663 F.2d 37, 40-41 (7th Cir. 1981) (holding that thedriver of a car owned by his wife, who had given him permissionto use it, had a legitimate expectation of privacy under theFourth Amendment) with United States v. Bouffard,917 F.2d 673, 676 (1st Cir. 1990) (holding that a defendant who hadborrowed a car for a limited period of time had no legitimateexpectation of privacy in the car's locked trunk where it was thevery person from whom he had borrowed the car who first calledthe police, after he failed to return the car); Soule, 908 F.2d at 1036 (holding that where the defendant"was nowhere near the pick-up truck at the time it was stopped,detained and searched, and there is no evidence that [he] had anyproprietary or possessory interest either in the vehicle, or itscontents, or any right to exclude others from the vehicle, itwould be difficult to posit a clearer failure to demonstrate anylegitimate expectation of privacy on the part of the defendant")(internal citations omitted); United States v. Sanchez,943 F.2d 110, 113-14 (1st Cir. 1991) (holding that the defendantfailed to demonstrate legitimate expectation of privacy where hecould not show that he had the owner's permission to use the caror demonstrate prior use or control of the car).
The government does not dispute that Sugar, an authorizedborrower of the car, had a reasonable expectation of privacy inthe RV itself, but only that he lacked such an expectation in thecloset. I disagree because he was the driver of the car at thetime of the stop, had possession of the keys to the car, had beenliving in the RV for the two days prior to the search, andplanned to use the RV as a home for the duration of thecrosscountry trip.
Courts have recognized standing by homeowners to challengesearches of containers found on their premises but owned by thirdparties. See United States v. Garcia-Rosa, 876 F.2d 209, 218(1st Cir. 1989) (holding that defendant had standing to challengethe seizure of a box regardless of who owned it because it was in a house owned and possessed by defendant); United States v.Isaacs, 708 F.2d 1365, 1367-69 (9th Cir. 1983) (holding thatdefendant had legitimate expectation of privacy in contents oflocked safe stored in his apartment but owned by third party);United States v. Perez, 700 F.2d 1232, 1236 (8th Cir. 1983)(holding that defendant could challenge search of luggagebelonging to overnight guests staying in his house); UnitedStates v. Gomez, 276 F.3d 694, 697 (5th Cir. 1998) (holding thatdefendant had a "reasonable expectation of privacy in a lockedvehicle owned and operated by a third party but parked on[defendant] homeowner's driveway" where the evidence seized wasthe subject of the unlawful enterprise in which defendantparticipated).
In these circumstances, the fact that Sugar did not have a keyto the closet does not defeat standing because he had alegitimate expectation of privacy in the room containing thecloset.
ORDER
The motion to suppress is ALLOWED.
1. Nearby, on Route 44, the Sheriff's office instituted a rusecalled the Sugar Tree stop. A sign states that there is a drugstop ahead with drug-sniffing canines. When cars take the "SugarTree" exit, cruisers follow them in order to detect a motorvehicle violation. Once a car is stopped, if the inhabitantsdon't consent to a search, the car is held until a caninearrives. This practice has been heavily litigated. See UnitedStates v. Yousif, 308 F.3d 820, 827-28 (8th Cir. 2002) (holdingthat the Sugar Tree checkpoint program violated the FourthAmendment when officers operating the checkpoint were instructedto stop every vehicle that took the exit, regardless of whethera traffic violation had occurred); United States v. Martinez,358 F.3d 1005, 1008-09 (8th Cir. 2004) (holding that the SugarTree ruse did not violate the Fourth Amendment when officers onlystopped vehicles for minor traffic violations); United States v.Williams, 359 F.3d 1019 (8th Cir. 2004) (same).