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States v. Cisneros-Zepeda

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

May 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MARTHA CISNEROS-ZEPEDA, Defendant.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE

         Defendant Martha Cisneros-Zepeda (“Cisneros”) moves to suppress and preclude the government from introducing at trial all evidence seized during an October 10, 2017 traffic stop, including her confession. Following an evidentiary hearing, and for the reasons that follow, [1] the court denies the motion.

         I

         On October 10, 2017, at approximately 10:15 p.m., Danny Nunez (“Trooper Nunez”), a trooper employed by the Highway Patrol Division of the Texas Department of Public Safety (“DPS”), was on patrol on Interstate Highway 40 (“I-40”) in Carson County, Texas. I-40 is a known drug trafficking corridor. Trooper Nunez has worked as a law enforcement officer for 27 years. Before working for the DPS, Trooper Nunez worked in San Angelo, Texas doing interdiction as a Deputy Sheriff Patrol Sergeant in charge of the K-9 unit. As a DPS trooper, Trooper Nunez has completed interdiction training, is an instructor in the area of interdiction, has taught classes nationwide, and has won several awards for his interdiction work. Trooper Nunez has made numerous highway interdiction traffic stops resulting in over 500 seizures of large amounts of narcotics.

         On October 10, 2017 Trooper Nunez was working patrol on I-40 in a marked DPS patrol car. With him in the vehicle were Officer Daryl Johnson and Sergeant Robert Hafley (“Sgt. Hafley”). It was dark outside and traffic was light. Trooper Nunez was parked approximately two to three feet off of the road on the south shoulder of I-40, near mile marker 92.

         As Trooper Nunez and the two officers were seated in the parked patrol car, one of the officers stated, “[w]e're fixing to get hit.” At that moment, Trooper Nunez heard a vehicle-later identified as a white 2014 Chrysler 300 (the “Chrysler”) being driven by defendant Cisneros-drive for about two or three seconds on the rumble strip situated behind his parked car, and then change lanes. According to Trooper Nunez, the rumble strip was located approximately six to eight inches outside of the fog line (i.e., the painted line on the shoulder side of the highway), on the improved shoulder of the road. Trooper Nunez activated his radar, which indicated that the Chrysler was traveling at 73 m.p.h. before it dropped rapidly to 53 m.p.h. Once the Chrysler passed Trooper Nunez's patrol car, it changed lanes into the passing lane and continued eastbound on I-40. Trooper Nunez activated his forward facing radar, which indicated that the Chrysler was traveling at 57 m.p.h. after it passed him. Based on the Chrysler's driving on the improved shoulder of the road over the rumble strips, decelerating from 73 to 53 m.p.h., and maintaining a lower speed of 57 m.p.h., Trooper Nunez believed that the driver might be intoxicated or tired, and he decided to follow the Chrysler.

         Trooper Nunez pulled behind the Chrysler and followed it for approximately two minutes. As he did, he observed it travel from the center of the right-hand lane over to the fog line on the right shoulder of the road. According to Trooper Nunez, the outside edge of the Chrysler's right rear tire extends three to five inches beyond the edge of its taillights, so that when he observed the Chrysler's right taillight aligned on top of, or near, the fog line, the vehicle's right rear tire would have been over the fog line.[2] Trooper Nunez then observed the Chrysler drift back to the center line on the road and actually cross over the center line. Based on the Chrysler's weaving within the lane and driving over the fog line and onto the improved shoulder, Trooper Nunez believed the driver might have been intoxicated or tired. He then slowed his vehicle, pulled behind the Chrysler, and activated his emergency lights to effect a traffic stop.

         After the Chrysler came to a full stop, Trooper Nunez pulled in behind it and got out to speak to the driver, approaching the Chrysler on the passenger side. Trooper Nunez noticed that the driver of the Chrysler had left her right blinker on, even after she had stopped the vehicle. Trooper Nunez knows from his prior experience that this is an indicator that the driver may be engaged in criminal activity, i.e., an indicator of nervousness.

         After making contact with Cisneros, Trooper Nunez stated to her that she was “all over the road” and asked her, “[a]re you alright?” Cisneros replied, “[y]eah, I'm fine.” Trooper Nunez then asked Cisneros for her driver license and told her that he would issue her a warning. She stated, “[a]ll right. I apologize for that.” Trooper Nunez observed that Cisneros's hand and arm were shaking when she handed her driver license to him. Trooper Nunez then asked Cisneros to come back to his patrol car so he could issue the warning.

         During the time Trooper Nunez was standing near the Chrysler, he made several observations that led him to suspect that Cisneros might be involved in criminal activity. First, he observed a blanket, pillow, and energy drink inside the vehicle. These items were suspicious to Trooper Nunez because, based on his training and experience, he knows that when individuals are transporting narcotics, they never want to leave their car, and they often sleep inside it, because they are responsible for the contraband they are transporting. Second, Trooper Nunez found it odd that Cisneros, a female, appeared to be traveling alone over a long distance. Third, Trooper Nunez observed that the Chrysler was registered out of Albuquerque, New Mexico, which he knows to be a source state for narcotics. Fourth, as Trooper Nunez walked by the Chrysler, he observed a chunk of foam situated in the back seat. This was suspicious because Trooper Nunez knows that narcotics are sometimes transported in vehicles that have been modified to include hidden compartments, or in which someone has used natural voids in the vehicle to conceal illegal narcotics, and remnants of the process, such as pieces of foam, are left behind.

         Trooper Nunez returned to his patrol car with Cisneros and asked her to sit in the front passenger seat. He testified that he observed that she was breathing heavily, “like she had just finished running a race, ” and was using her hands when she talked. Trooper Nunez immediately began running computer checks on Cisneros and the Chrysler. While completing the process of issuing a warning, Trooper Nunez asked Cisneros routine questions about her trip. In response to a question about where she was headed so late at night, Cisneros replied, “I'm going over to Clarksville with my grandpa.” Trooper Nunez then stated, “Clarksville?” to which Cisneros replied, “[u]h, Kansas. He's a little sick over there.” When Trooper Nunez asked again what state Clarksville was in, Cisneros responded, “Clarksville, Kansas?” This was suspicious to Trooper Nunez because he has intercepted a lot of illegal narcotics being transported to Clarksville, Arkansas, and he had never heard of a Clarksville, Kansas. Trooper Nunez asked Cisneros whether her grandfather was ill, to which she replied, “[y]eah. My grandpa's sick over there.” When Trooper Nunez asked what was wrong with her grandfather, Cisneros stated, “[h]e has a-, problems with the heart so he had a little like stroke.” Trooper Nunez later asked Cisneros whether her grandfather was in the hospital, and Cisneros explained that “he already got out. He just had a stroke.” Trooper Nunez found this suspicious because if Cisneros' grandfather had previously been in the hospital but had already been released, there would have been no reason for her to be traveling so late at night to go see him since there was no longer any emergency.

         Trooper Nunez noticed that Cisneros appeared to be wearing a wedding ring, and he asked her if she was married. Cisneros responded, “[n]o, ” and explained “I'm not married yet.” Trooper Nunez asked her where her fiancé was, and Cisneros stated, “he's at work.” When asked what type of work her fiancé does, Cisneros stated, “[c]onstruction.” She further clarified that her fiancé was “working in Chama.” Trooper Nunez asked why Cisneros' fiancé didn't want to come with her. Cisneros replied, “[n]o, he's working.” Trooper Nunez asked if there was a lot of construction work “down there.” Cisneros stated, “[n]ot that much. They've been having to go out of town and stuff like that. Like he just came back from Chama.” When Trooper Nunez asked whether Chama was in Texas, Cisneros stated that she did not know where Chama is located. Trooper Nunez found Cisneros' story inconsistent because at one point Cisneros said that her fiancé was working in Chama, and later she said that he was back from Chama. Trooper Nunez testified that he found it odd that, when asked, Cisneros could not provide any details about Chama, explaining that if his wife or girlfriend was going out of town to work, he could say exactly where it was, if it was in New Mexico or Texas.

         Trooper Nunez noticed that Cisneros was bouncing a coin off the seat. He testified that these types of fidgety movements are suspicious because a person transporting narcotics will often try to occupy her time with something else to divert her mind from the questions. Trooper Nunez also testified that the way Cisneros was dressed was suspicious. Even though it was cold outside, Cisneros was wearing a muscle shirt, and Trooper Nunez believed, based on past experience, that females transporting narcotics dress provocatively or in a “flirtatious manner” in order to try to distract the officer.

         Trooper Nunez printed the warning for a violation of Tex. Transp. Code Ann. § 545.058, driving on an improved shoulder. He handed the warning, Cisneros' driver license, and all her vehicle documents to her. Trooper Nunez testified that, at this point in the traffic stop, based on all that he had observed, he believed that Cisneros was involved in criminal activity. Trooper Nunez asked Cisneros, “Martha, can I ask you a couple more questions?” Cisneros responded, “[y]es, sir.” Trooper Nunez then asked Cisneros a series of questions regarding whether she was involved in any illegal activity, including whether she had any narcotics in the Chrysler.

         After Cisneros denied being involved in illegal activity, Trooper Nunez asked, “[c]an I search your car?” Cisneros replied, “[y]eah, I mean, that's fine. There's nothing in it.” Trooper Nunez stated, “[a]ll right. Let me just get closer. You can stay in here since it's warmer.” Cisneros stated, “[o]kay, sir. I mean, is there a reason, though?” Trooper Nunez replied, “I'm asking you if I can search it.” Cisneros then asked, “[b]ut is there a reason?” Trooper Nunez stated, “[y]ou can say yes or no, hon.” Cisneros asked again, “I mean, but is there a reason?” Trooper Nunez answered, “[y]eah. I believe there's something illegal inside that car.” Cisneros laughed, stating, “[i]s that right?” She then stated, “[g]o ahead, sir.” Trooper Nunez said, “[a]ll right, ” and Cisneros replied, “[y]eah, go ahead.” Trooper Nunez and Sgt. Hafley then exited the patrol car and began to search the Chrysler. During the search, Trooper Nunez located a neck pillow on the passenger side floorboard. When he lifted the neck pillow, he noticed that it was heavier than a normal pillow. He could see that the pillow's seam had been loosely re-sewn, and there was white stuffing poking out of the seam. Trooper Nunez could also feel one or more hard objects in the pillow. He ripped the seam to the neck pillow and located two foil-wrapped bundles of suspected narcotics concealed inside. Cisneros was placed under arrest and handcuffed. Trooper Nunez returned to his patrol car and sat in the driver seat. He informed Cisneros that he was going to read her rights to her. In response, she asked, “[w]hat's going to happen to my car and stuff?” Trooper Nunez told her that they would “take care of that here in a minute.” He then read Cisneros her Miranda warnings. Trooper Nunez next explained to Cisneros that they were going to transport the Chrysler to “the office” and then “take it from there.” Cisneros asked if the car would be repossessed. Trooper Nunez responded, “[n]o, I'm not-, I don't want to do that to you . . . I'm not going to leave you walking with a kid.” Cisneros replied, “I know I f---ed up. It's my first time. I f---ed up doing whatever.”[3]

         The suspected narcotics were weighed. The gross weight was 3.28 gross pounds. A sample was field-tested, and it yielded a positive result for methamphetamine.

         Cisneros moves to suppress and preclude the government from introducing as evidence at trial the contraband seized during the traffic stop, including her confession. The government opposes the motion. The court has conducted an evidentiary hearing.

         II

         The Fourth Amendment protects individuals against unreasonable searches and seizures. “The stopping of a vehicle and detention of its occupants constitutes a ‘seizure' under the Fourth Amendment.” United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004). Evidence derived from an unreasonable search or seizure generally must be suppressed under the “fruit-of-the-poisonous-tree doctrine.” United States v. Alvarado-Zarza, 782 F.3d 246, 249 (5th Cir. 2015) (citing United States v. Cotton, 722 F.3d 271, 278 (5th Cir. 2013)). “Warrantless seizures are ‘per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.'” Id. (quoting United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014)). One such exception comes from Terry v. Ohio, 392 U.S. 1 (1968).

         The framework articulated in Terry is used to analyze the legality of a traffic stop. “Under the two-part Terry reasonable suspicion inquiry, [the court asks] whether the officer's action was: (1) ‘justified at its inception'; and (2) ‘reasonably related in scope to the circumstances which justified the interference in the first place.'” United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005) (quoting Terry, 392 U.S. at 19-20). “A temporary, warrantless detention of an individual constitutes a seizure for Fourth Amendment purposes and must be justified by reasonable suspicion that criminal activity has taken or is currently taking place; otherwise, evidence obtained through such a detention may be excluded.” United States v. Garza, 727 F.3d 436, 440 (5th Cir. 2013). “Reasonable suspicion requires more than merely an unparticularized hunch, but considerably less than proof of wrongdoing by a preponderance of the evidence.” Id. (internal quotation marks and citation omitted). As this court has previously explained:

For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred, or is about to occur, before stopping the vehicle. The Supreme Court has stated that in making a reasonable suspicion inquiry, a court must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. We have stated previously that reasonable suspicion exists when the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the search and seizure. In evaluating the totality of the circumstances, a court may not consider the relevant factors in isolation from each other. In scrutinizing the officer's basis for suspecting wrongdoing, it is clear that the officer's mere hunch will not suffice. It is also clear, however, that reasonable suspicion need not rise to the level of probable cause.

United States v. Johnson, 2006 WL 1041148, at *3 (N.D. Tex. Apr. 20, 2006) (Fitzwater, J.) (quoting Lopez-Moreno, 420 F.3d at 430).

         Although “[a] defendant normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional[, ] . . . where a police officer acts without a warrant, the government bears the burden of proving that the search was valid.” United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005) (citations omitted). Accordingly, “[t]he government bears the burden of establishing by a preponderance of the evidence [the] two elements under Terry[.]” Johnson, 2006 WL 1041148, at *3 (citing United States v. Sanchez-Pena, 336 F.3d 431, 437 (5th Cir. 2003); United States v. Riley, 968 F.2d 422, 424-25 (5th Cir. 1992)).

         III

         The court considers first whether the government has met its burden of ...


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