United States District Court, N.D. Texas, Amarillo Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER, UNITED STATES DISTRICT JUDGE.
Michael James Urban ("Urban") and Christopher
Patrick Talbot ("Talbot")-who are charged with the
offense of possession with intent to distribute 50 grams or
more of actual methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1) and § 84 1(b)(1)(A)(viii)-move to
suppress all evidence, including contraband and photographs,
seized in connection with the stop of a vehicle that Urban
was driving and in which Talbot was a passenger, and all
statements made by them at or after their arrest. Following
an evidentiary hearing, and for the reasons that follow,
court denies the motion.
March 24, 2017 Texas Department of Public Safety
("DPS") Sergeant Daniel Rangel ("Sgt.
Rangel") was patrolling Interstate Highway 40 in Carson
County, Texas. Sgt. Rangel has worked for DPS for
approximately 12 years. He became a canine handler in 2009,
after completing a three-month course in canine handling, and
has been a technical trainer for drug detecting dogs since
2014. Sgt. Rangel supervises canine handlers in his region,
which includes four canine handlers and four drug detecting
dogs. Sgt. Rangel has made approximately 30 traffic stops
that resulted in large narcotics seizures.
Rangel's drug detecting dog, Triton, is trained to detect
marihuana, cocaine, heroin, and methamphetamine. Triton has
been certified through DPS since 2014. Sgt. Rangel and Triton
began working together full-time in November 2016, and they
were certified as a team by DPS in December 2016, which was
approximately three and a half months before the stop of
Urban and Talbot. Sgt. Rangel and Triton were certified again
in May 2017, approximately two months after the stop, which
was their annual certification. During each certification,
DPS evaluators rate the team's overall performance as
satisfactory or unsatisfactory, and rate the dog as
excellent, good, fair, poor, or unacceptable in multiple
performance categories. While working as a team, Sgt. Rangel
and Triton have been rated as satisfactory in every
certification, and Triton has been rated good or excellent in
Rangel and Triton also train for a minimum of eight hours
each week, which is required to include at least ten
"unknown exercises" in which the handler is unaware
of where drugs are hidden (also known as single blind
controls). The weekly training exercises include vehicle
exterior searches, vehicle interior searches, and building
is an aggressive alert dog, which means that his final,
trained response is to bite or scratch when he detects the
odor of certain drugs. Sgt. Rangel has also observed Triton
signal the presence of drugs by exhibiting other odor
responses such as pulling his handler towards a source of
odor or breathing heavily and in an excited manner.
March 24, 2017 Sgt. Rangel was patrolling Interstate 40 and
conducting "roadside training" for a DPS criminal
interdiction course. At approximately 11:00 a.m. Sgt. Rangel
was traveling westbound and observed defendants' white
Ford Mustang traveling eastbound; he observed that the
Mustang was traveling in the left lane while not passing
other vehicles, and that the occupants were focused on
another patrol car that was conducting a traffic stop on the
side of the road. Sgt. Rangel turned around to follow the
Mustang. While he was catching up to it, he observed that the
Mustang continued to travel in the left lane while not
passing, even as it drove by two sets of signs that were
marked "Left Lane for Passing Only." On
cross-examination, Sgt. Rangel admitted that when he caught
up to the Mustang it was closing on a semi truck some
distance ahead, which could have led to the vehicle's
passing the semi truck.
Sgt. Rangel caught up to defendants' vehicle, he first
approached it on the right to observe the occupants inside,
then moved into the left lane behind it and effected a
traffic stop. He noticed that, once the car pulled over and
came to a stop, the driver left the blinker on, which from
his experience was a sign that the driver was distracted.
Rangel approached the rear driver side of defendants'
vehicle and asked the driver (Urban) to step out. Urban met
Sgt. Rangel behind the car. Sgt. Rangel informed Urban of the
reason for the traffic stop. He asked Urban for his driver
license and asked whom the vehicle belonged to. Urban said
that the vehicle was a rental, and Sgt. Rangel then asked for
the rental agreement. Urban showed Sgt. Rangel his driver
license and his concealed handgun license.
Rangel believed that Urban, by showing his concealed handgun
license, intended to give him the impression that he was a
law-abiding citizen, because the license requires a
background investigation. On cross-examination, Sgt. Rangel
acknowledged that both Texas and North Carolina law require
that a driver to show his concealed handgun license if he is
carrying a weapon, although in this instance Urban was not.
While talking to Urban outside the vehicle, Sgt. Rangel
noticed that the passenger, Talbot, had rolled his window
down and was focused on Sgt. Rangel and Urban.
Rangel and Urban then approached the passenger side of the
vehicle so that Urban could retrieve the rental agreement.
Urban put his entire body in the passenger side window
opening when looking for the rental agreement, which made
Sgt. Rangel believe that Urban was trying to keep him away
from the vehicle interior. Sgt. Rangel also noticed that the
vehicle's interior was messy and stained, which he
characterized as giving the vehicle a "lived in"
appearance. He considers this a suspicious sign because
persons who carry contraband in their vehicles are frequently
hesitant to leave the contraband unattended, and their
conduct results in a vehicle with a "lived in"
look. After Urban and Talbot searched unsuccessfully for the
rental agreement, Urban told Sgt. Rangel that the rental
agreement had flown out the window when they were driving
with the window down. Sgt. Rangel thought that the absence of
the rental agreement was suspicious, because Urban's
explanation seemed inconsistent with his initial response
when asked for the agreement ("Absolutely"), and
because the rental agreement would contain information such
as where the vehicle was rented, who rented it, and where it
is authorized to be taken.
Rangel then asked Urban to return and stand at the rear
passenger side of the car, while he approached the driver
side window to talk to Talbot. Talbot told Sgt. Rangel that
he was the one who had rented the vehicle, and that the two
men had come from Phoenix, Arizona. Talbot said that they had
traveled to Phoenix from North Carolina to check on the
status of a bike (motorcycle) that he was having custom
built, and they had been in Arizona for three days. Talbot
also said that he shipped the motorcycle to Arizona and
wanted to see the progress. He told Sgt. Rangel that no work
had been done yet. Sgt. Rangel asked Talbot for his
identification. During this exchange, Sgt. Rangel noticed
that Talbot was uneasy, unable to keep still, twitching, and
talking fast. Sgt. Rangel believed, based on his training and
experience, that Talbot may have been under the influence of
Rangel returned to the rear passenger side of defendants'
car and began talking to Urban about their trip. Urban said
that they had flown to Arizona to see a bike that Talbot
wanted to buy, and that Talbot did not purchase the bike
prior to the trip, which seemed to conflict with Talbot's
explanation. Urban said that Talbot paid for the trip, and
that they stayed at a hotel in Arizona, but he could not
remember the name of the hotel. During this conversation Sgt.
Rangel noticed that Urban hesitated when answering questions
about the details of the trip.
on his observations of Urban and Talbot up to that point,
Sgt. Rangel believed that they were involved in criminal
activity. He returned to his patrol car, conducted a routine
driver license and criminal history check, and ran a check on
the rental car to see if it was stolen. Sgt. Rangel then gave
Urban a written warning for the traffic violations, and
returned his identification. Sgt. Rangel asked Urban if they
were carrying anything illegal, and Urban responded that they
were not. Sgt. Rangel asked Urban for consent to search their
vehicle, which Urban refused. Sgt. Rangel then told Urban
that he was going to run his canine around the vehicle, and
the called for backup. Approximately 10 minutes elapsed from
the time when the stop began until Urban denied consent to
search the vehicle.
Rangel patted down Urban and Talbot for weapons, then had
them stand away from their car so that he could run his
canine around it. Soon after, DPS Trooper Christopher Lambert
arrived at the scene. Sgt. Rangel deployed Triton around
defendants' vehicle. According to Sgt. Rangel's
testimony, their normal search pattern was to do a first pass
where Triton ran around the car completely independently, and
then do a second pass with high and low detail searching.
Each pass began and ended at the driver's side headlight.
Sgt. Rangel and Triton first approached the car, Triton
"cast his nose" toward the vehicle; Sgt. Rangel
considered Triton's action to be an odor response to
narcotics. During the first pass, Triton several times
stopped his search pattern and pulled Sgt. Rangel back to the
front of the car, and focused on the area near the car's
hood. Triton was also sniffing heavily and in an excited
manner. Based on Sgt. Rangel's training and experience
with Triton, he considered this behavior to be an alert.
Rangel then had Triton do a detail pass. Sgt. Rangel
testified that Triton alerted again during the detail pass by
cutting back toward the passenger door seam and pulling Sgt.
Rangel toward it. During one of the high searches, Triton
stuck his nose into the driver's window, which was open.
Sgt. Rangel acknowledged that a DPS canine manual called for
rolling up the windows of a vehicle before doing a free-air
sniff, but stated that this guidance primarily applied when
conducting a consent search, because without consent the
officer lacks authority to manipulate things on the vehicle,
such as a window.
Rangel testified that he considered Triton's behavior to
be an alert to the odor of drugs, which gave him probable
cause to search defendants' vehicle; that Triton did not
exhibit his "final response" of biting or
scratching because he did not "pinpoint" the source
of the odor, which would have required him to search inside
the car; and that Triton was trained to distinguish the odor
of drugs from other odors that might interest a dog, such as
food or other dogs. Sgt. Rangel acknowledged that he did not
reward Triton (such as with a toy or praise) during the stop
in this case, but he testified that he usually did not reward
Triton until after he had confirmed the presence of drugs.
eight minutes elapsed between the time that Sgt. Rangel gave
the written warning to Urban (completing the stop's
original mission) and the time that Sgt. Rangel believed
Triton alerted on the vehicle.
expert Jerry Potter ("Potter") testified that
Triton did not properly alert to defendants' vehicle in a
way that would establish probable cause. Potter was a Master
at Arms in the U.S. Navy and served as a dog handler, kennel
supervisor, explosive training custodian, instructor, dog
trainer, and as the noncommissioned officer in charge of the
detection program at Lackland Air Force Base. He has
testified as an expert approximately twelve times.
opined that only the dog's final conditioned response-in
Triton's case, biting or scratching-should be relied on
as an indication that drugs are present. He testified that
simpler behaviors, such as a canine's becoming excited or
bracketing around an area, risk ambiguity between the
canine's simply being curious about a smell and his
conclusively responding to the odor of drugs. But Potter
acknowledged an exception to this rule in cases where the
canine encounters a very large amount of drugs compared to
amounts that the canine has smelled before; he said that a
dog in that situation might show overwhelmed behavior, such
as spinning in circles, rolling on his back, or urinating,
instead of exhibiting the conditioned response. On
cross-examination, Potter admitted that the over 400 grams of
methamphetamine present in defendants' vehicle was
substantially more than the 60-100 grams of methamphetamine
that Triton had been trained with.
also opined that a dog's reliability may be undermined if
his handler does not immediately and consistently reward him,
such as with a toy, after he exhibits his final conditioned
response; that Sgt. Rangel improperly departed from
Triton's training by implementing a "praise-off
reward instead of a tangible toy reward; that Triton's
lack of reaction to the open driver's window undermined
the conclusion that he smelled drugs, because the window was
likely to be the strongest source of odor from drugs located
inside the car; and that it was too easy for Sgt. Rangel to
pull Triton away from the car, undermining once again the
conclusion that Triton smelled drugs.
observing Triton's reaction to defendants' vehicle,
Sgt. Rangel and Trooper Lambert searched it and found a
plastic bag containing approximately one pound of
methamphetamine in the passenger side door pocket; smaller
amounts of methamphetamine and cocaine in the glove box; and
two documents that they suspected to be drug ledgers inside
the car. Sgt. Rangel and Trooper Lambert arrested Urban and
Talbot. The Drug Enforcement Agency South Central Laboratory
later confirmed that the larger bundle seized from the car
contained 497.31 grams of methamphetamine with 99% purity.
and Talbot move to suppress the evidence seized in connection
with the search of the vehicle, and all statements made by
them at or after their arrest. Urban challenges only the
existence of probable cause to search the vehicle; Talbot
challenges the existence of reasonable suspicion for the
traffic stop, the length of the traffic stop, the conduct of