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United States v. Shen

United States District Court, N.D. Texas, Amarillo Division

June 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RUSSELL TIM SHEN (1) and ANDRE JORGE HERNANDEZ (2), Defendants.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER UNITED STATES DISTRICT JUDGE

         Defendants Russell Tim Shen (“Shen”) and Andre Jorge Hernandez (“Hernandez”)-who are charged with the offenses of conspiracy to distribute and possess with intent to distribute marihuana, in violation of 21 U.S.C. § 846, and distribution and possession with intent to distribute marihuana, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(D), and 18 U.S.C. § 2-move to suppress all evidence, including 71 gross pounds of alleged marihuana, seized in connection with the stop of a vehicle that Shen was driving and in which Hernandez was a passenger, and all statements made by them at or after their arrest. Following an evidentiary hearing, and for the reasons that follow, [1] the court denies the motions.

         I

         On March 15, 2014 Coy Teichelman (“Officer Teichelman”), then employed as a police officer by the Childress, Texas Police Department, was patrolling U.S. Highway 287 in Childress, Texas. Highway 287 is a known drug-trafficking corridor. Officer Teichelman had been employed as a Childress police officer since graduating from the police academy in September 2007. In approximately 2010 or 2011, he began doing drug interdiction work. On the date of the stop, Officer Teichelman was operating a canine unit with his canine, Alis.

         Officer Teichelman's work as a patrol officer enabled him to observe how people normally react during traffic stops as opposed to how those involved in criminal conduct react. Through training, he learned about normal and abnormal body language. Officer Teichelman had also had experience riding with state troopers and prosecutors, and he had done some teaching. Prior to the stop in this case, he had made between 50 and 60 highway traffic stops that resulted in felony drug seizures.

         Officer Teichelman got Alis in 2011, and he had been working with her for approximately two years at the time of this stop. Alis received her initial training from Worldwide Canine, Inc., including two weeks of training with Officer Teichelman specifically. Alis was certified by the National Narcotic Detector Dog Association and the National Police Canine Association. Officer Teichelman and Alis also completed periodic training twice per month, and an annual certification once per year. The annual certification included a performance detection test that required Alis to locate drugs under “single blind” controls (i.e., the drugs' location was unknown to her handler). Alis completed an annual certification just over one week before the March 15, 2014 traffic stop, and successfully completed her next annual certification after this traffic stop. One of the drugs on which she was certified was marihuana.

         Alis was “passive” when she alerted. In contrast to an “aggressive” canine, Alis would sit, stand, or stare when she detected the presence of narcotics. She would initially show interest, short of a final alert, by wagging her tail, increasing her breathing, and staring or looking at a drug area. Officer Teichelman's procedure was to take Alis on an initial pass where she would get a general whiff, after which he would go back to detail a room or vehicle, focusing at that point on door seams or any areas where there was an odor. Alis did not like water, baths, and the like.

         On the afternoon of March 15, 2014, Officer Teichelman observed an eastbound passenger car following a semi truck and trailer. It had been raining heavily earlier in the day, and the rain had stopped about five minutes beforehand. After noting that the car was closely following the semi, Officer Teichelman started following the car. He was concerned that, due to the heavy rain and the close distance between the two vehicles, if the semi slowed down, the car would be unable to avoid rear-ending the semi. Officer Teichelman initiated a traffic stop on the basis that the car was following the semi too closely.

         Officer Teichelman's unit was equipped with a video camera, and he wore a microphone on his uniform. Both were activated when he turned on his unit's overhead lights. The recording of the video and audio was admitted in evidence and played during the suppression hearing.

         After effecting the stop, Officer Teichelman notified dispatch by radio that he was making a stop, and he gave dispatch the car's license plate. He did this so that dispatch could run the vehicle's plates, or, if necessary, identify the stopped vehicle later. Officer Teichelman then approached the car, in which Shen was the driver and Hernandez was the passenger.

         Officer Teichelman informed Shen of his name and department and advised Shen that he had stopped him for following the semi too closely. Shen responded that he was intentionally closely following the semi so that water kicked back from the semi would wash his windshield, and that he had planned to fall back after his windshield was clean.

         Officer Teichelman informed Shen that he was going to write a warning. He then asked Shen for his driver license, which is part of his routine procedure when making a traffic stop. Officer Teichelman asked Shen if the car belonged to him, and Shen responded that it was a rental. Officer Teichelman then asked Shen, as he routinely does in the case of a rented car, whether he had a copy of the rental agreement, and Shen said that he did.

         Shen was acting very nervously. He hands were very shaky as he thumbed through his paperwork. Instead of providing Officer Teichelman a copy of the rental agreement, Shen actually provided him an XM satellite radio channel menu. Officer Teichelman then informed Shen that he was issuing a warning. He usually does this early in a traffic stop to calm the driver's nerves.

         Officer Teichelman asked Shen to join him in his patrol car. He asked Shen whether he had any weapons-a question that he asks for his own safety. Shen responded that he was not carrying a weapon, and he identified himself as a federal officer.

         Inside the patrol car, Officer Teichelman reviewed the rental agreement and noticed that it was in Hernandez's name and for a one-way trip According to Officer Teichelman, one-way rentals are relatively expensive, and drug traffickers generally are not price-sensitive when traveling. Officer Teichelman asked Shen where he had come from, and Shen responded that they had come from Denver. When Officer Teichelman asked Shen what was going on in Denver, Shen oddly responded by shaking his head and stating, “Not even gonna bother with that, ” and “I can't deal with it.” Shen showed Officer Teichelman a federal ID and badge that identified Shen as a federal officer with Homeland Security and Border Protection. Shen repeated, “I can't deal with it.” When Officer Teichelman asked Shen what he meant by that, Shen replied, “I'm supposed to pick up this stuff. That's what I do in Miami.” Officer Teichelman honestly believed at this point that Shen was on duty as part of a contraband delivery or was working as an informant. He thought that Shen's reference to “stuff” might mean that there was something illegal in the vehicle. Officer Teichelman then asked Shen if the car's passenger was with him, and Shen said “yeah.” Officer Teichelman asked if the passenger was also a law enforcement officer, and Shen said “no.” Officer Teichelman was trying to go through a process of elimination to find out what Shen was doing.

         Officer Teichelman then asked Shen whether they were in Denver for business, and Shen said, “no, it was just pleasure.” Shen said that they were going to stop in Houston.

         When Officer Teichelman asked how long they planned to stay in Houston, Shen shook his head and said “probably overnight.” Officer Teichelman had noticed from the rental agreement that it was a one-way rental to Florida, and believed that they had paid about $1, 800 for the rental. It would cost them even more to stay one night in Houston before traveling to Florida. The stop was made on March 15, 2014, it was a nine-hour drive to Houston, and the car was due back in Florida on March 17, 2014. In Officer Teichelman's experience, he often saw persons involved in drug trafficking who were not concerned with the cost of a rental vehicle.

         Officer Teichelman then exited his patrol car and went to talk to Hernandez. He asked Hernandez if he had rented the vehicle, to which Hernandez answered “yes, ” and asked Hernandez where they were coming from and where they were going. Hernandez said they had come from Colorado, where they had visited Shen's friends in Denver, and were driving to Houston to visit Shen's friends. Hernandez stated that they had been in Denver so that Shen could undergo chemotherapy. Officer Teichelman then returned Hernandez's driver license. Hernandez appeared nervous during this exchange with Officer Teichelman. Hernandez also said that he and Shen had been on a short trip. In Officer Teichelman's training and experience, short trips over long distances were associated with criminal conduct.

         Officer Teichelman talked to Hernandez about the trip to compare Shen's and Hernandez's stories. This is a tactic that he used. Hernandez had said they were in Denver so that Shen could undergo chemotherapy; Shen, however, had said they were in Denver for pleasure, and had said nothing about chemotherapy. It also seemed odd to Officer Teichelman that this was more or less Shen's trip, but Hernandez had rented the car in his name, but Shen had possession of the rental agreement in his vest.

         Officer Teichelman then returned to his patrol car and gave Shen his driver license. Officer Teichelman's unit was not equipped with a computer, so it was necessary for him to run Shen's driver license with dispatch and write out the warning by hand. The stop had lasted about nine minutes at the time Officer Teichelman provided dispatch Shen's driver license. Officer Teichelman engaged in general conversation with Shen while writing out the warning. He was attempting, as an investigative tactic, to get details of Shen and Hernandez's trip. When Shen was discussing his trip, he appeared to be nervous and gave answers that were short, quick, and to the point. But when discussing other topics, such as the weather, Shen's body appeared to be more at ease. Officer Teichelman returned Shen's driver license to him and gave him a copy of the warning.

         About 10 minutes had elapsed from the time Officer Teichelman effected the traffic stop. On average, Officer Teichelman's traffic stops are 8 to 12 minutes, depending on factors such as the driver's behavior and how ...


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