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United States v. Urban

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

August 28, 2017




         Defendants 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, [1] the court denies the motion.


         On 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.

         Sgt. 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 every category.

         Sgt. 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 searches.

         Triton 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.

         On 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.[2]

         When 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.

         Sgt. 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.

         Sgt. 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.

         Sgt. 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.

         Sgt. 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 a drug.

         Sgt. 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.

         Based 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.

         Sgt. 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.

         When 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.

         Sgt. 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.

         Sgt. 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.

         Approximately 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.

         Defense 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.

         Potter 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.

         Potter 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.

         After 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.

         Urban 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 the ...

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