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United States v. Near

United States District Court, N.D. Oklahoma

June 11, 2019




         I. Background

         The defendants are charged by Indictment with conspiring to distribute and to possess with intent to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C) (Count One) and possessing with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D) (Count Two). The charges arose from a traffic stop on February 6, 2019 at the Will Rogers Turnpike Toll Plaza on Interstate 44 (I-44) at Vinita, Oklahoma.

         Defendant Jason Near was driving a Recreational Vehicle (RV) at the time he was stopped by Oklahoma Highway Patrol (OHP) Trooper Trenton Short. Mr. Near's wife, Stephanie Elfman, his cousin, Kevin Wright, and his dog were traveling with Mr. Near in the RV. Trooper Short asked Near to exit the RV and sit in the front passenger seat of Short's patrol car, which Near did. Near was thus videoed for virtually the entire law enforcement encounter on I-44. Short issued Mr. Near a warning for following too closely in violation of Okla. Stat. tit. 47, § 11-310(a). Short continued questioning Near following the issuance of the warning, then asked for consent to search the RV. After Near declined to consent, Short called for an OHP K-9 officer to bring a dog to sniff the exterior of the RV for the presence of drugs. The dog alerted and the officers searched the RV and found approximately 114 pounds of marijuana, as well as firearms and ammunition.

         Near, Elfman, and Wright were arrested and transported to the OHP Troop L Headquarters in Vinita. After the defendants were advised of their Miranda rights and signed waivers, they were questioned by officers. During the questioning, Near and Wright admitted knowingly transporting the marijuana. Ms. Elfman denied knowledge of the presence of the marijuana or information about drug trafficking. It is alleged that Near and Wright implicated Ms. Elfman in their statements.

         Defendants Elfman and Wright move to suppress the traffic stop, based upon their argument that the Oklahoma traffic statute, Okla. Stat. tit. 47, § 11-310(a), which prohibits following too closely, is unconstitutionally vague. (Doc. 39, 40). All defendants also move to suppress the marijuana, firearms, ammunition, and the statements made by the defendants after arrest, as fruits of unlawful detention. (Doc. 30, 32, 33). Specifically, the defendants argue that the detention following the traffic stop was unlawful because Trooper Short did not have reasonable suspicion to prolong the traffic stop to obtain a dog sniff. As a result, the defendants request that the Court suppress all fruits of the search and the defendants' statements to police following arrest. The government filed responses (Doc. 46, 47) and submitted Trooper Short's written report and a CD with videos from Short's patrol car. The government argues that Trooper Short had reasonable suspicion to extend the traffic stop to await the dog sniff.

         The Court conducted a hearing and heard testimony of three witnesses, OHP Troopers Trent Short and Aaron Lockney and Bureau of Indian Affairs Special Agent Billy Stites. Agent Stites is also designated as an Agent with the United States Drug Enforcement Administration. In addition, the Court has considered the parties' briefs, oral arguments, and exhibits (Doc. 47-1, 47-2; Government Exhibits 1, 2, 3; Defendants' Exhibits 2 and 4).

         II. Analysis

         A. Suppression Proceedings

         The purpose of suppression proceedings is to “determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments.” See United States v. Merritt, 695 F.2d 1263, 1269 (10th Cir. 1982). A motion to suppress is governed by Rule 12. See Fed. R. Crim. P. 12(b)(3)(C). Pursuant to Rule 12(d), “[w]hen factual issues are involved in deciding a motion, the court must state its essential findings on the record.” This opinion shall serve as the Court's essential findings on the defendants' suppression motions.

         B. The Initial Stop

         The Fourth Amendment guarantees citizens the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Those protections apply to investigatory stops. When a law enforcement officer performs an investigative detention of a person, it is referred to as a Terry stop. See United States v. Hernandez, 847 F.3d 1257, 1267-68 (10th Cir. 2017) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). “Because a Terry stop is less intrusive than an arrest, the suspicion required to make such a stop is less demanding than what is required for an arrest.” Id. at 1268. Still, such a detention is only permissible when an officer has “specific and articulable facts and rational inferences drawn from those facts giving rise to a reasonable suspicion that [the defendant] was involved in criminal activity.” Id. “A valid traffic stop must be based on an observed traffic violation or a reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” United States v. Cline, 349 F.3d 1276, 1286 (10th Cir. 2003) (internal quotation marks omitted) (citing United States v. Callarman, 273 F.3d 1284, 1286 (10th Cir. 2001)).

         Trooper Short has been a state trooper for six years. He is assigned to I-44, to stop cars for traffic violations, to work crashes, and to enforce tolls. He has had interdiction training, which focused on “[c]riminals on the highways, traffic stops, [and] tendencies.” His typical procedure in making traffic stops includes performing “on board checks” to make sure the driver's license is valid and verifying insurance and registration. Short has extended traffic stops between 20 and 30 times to await a dog sniff. Short initially testified that 100% of those times, the dog alerted to the presence of narcotics and that his suspicions were never unfounded when he had extended a stop for a dog sniff. On cross-examination, he admitted that, at least once, the sniffing dog alerted and drugs were not found.

         According to Short's testimony, immediately before the February 6, 2019 stop, Short parked his patrol car just before the eastbound I-44 toll plaza at Vinita, Oklahoma. Short testified that his car was parked perpendicular to the traffic lane where vehicles, traveling northeast on I-44, exit to pay toll. Short testified that his car was facing east, and he was watching through the passenger side window for vehicles coming toward him as they exited to pay toll. According to his testimony, he was parked with his driver's side door perpendicular to a crash barrier. See Government Exhibit 3. He indicated in his report that he was “watching for unsafe lane changes, following to [sic] close as well as toll violations.” (Doc. 47-2 at 2). His report further indicates that, at approximately 1:05 p.m., he saw the RV driven by Near exit to pay toll. (Id.).[1] Short reported that the RV “was following a tractor trailer into the toll zone at less than 1/2 car length of the [RV].” (Id.).

         Trooper Short testified that he first saw the RV from about 100 to 150 yards away from his patrol car.[2] All he could see was the driver's side headlight of the RV, behind a semi that was traveling toward Short's position. Based on that, he estimated that the RV was less than an RV's length from the semi in front of it and that the RV was traveling between 40 and 60 miles per hour. His written report did not record any estimate of the RV's speed, and he was not utilizing the radar gun in his patrol car. Short subsequently indicated that his estimate of the RV's speed was really based on the speed of the semi, which “was slowing” in front of the RV:

“So I would guess the speed I would go off of would be the semi's speed because that would be what I could more, I could see at the time better to get the speed.”

         The traffic violation was not video recorded. Trooper Short acknowledged that he could have directed his patrol car's dash camera toward oncoming traffic as he was watching for violations, but he did not.

         Short testified that, after he observed the RV commit a traffic violation, he followed the RV into the toll plaza lanes, allowed the RV to pass through the cash toll lanes and pay toll, then Short pulled the RV over. Short testified at length as to the precise details relating to the stop, which included his testimony that he drove his patrol car through the toll plaza to make the traffic stop:

Q. . . . Using Government's Exhibit 3, could you describe what you did once you saw the violation?
A. I allowed the motor home to proceed towards the cash lanes, which is in the same direction as the semi is traveling on the screen displayed here, allowed him to proceed towards the cash lanes, pay his toll, and then I proceeded in behind him and activated my lights.
Q. And, so, using the exhibit and making an annotation, can you show where you drove your cruiser? . . .
A. That specific day there's a lane right here, (indicating) that allows us that's not always open. . . . So I think - - I believe there's four lanes that are most of the time open and then the outside lane is a fifth lane that they can open in peak travel times, holidays. So I would have driven through, there's some cones right there.
Q. Ok. And, for the record, the trooper has put a green mark on the far right side of the toll plaza where he would have driven his cruiser through to make the traffic stop.

See Government Exhibit 3 (Doc. 58-2 at 3); see also Screen Capture of Officer Short's green marking of the location he drove his patrol car (Doc. 58-4 at 2).

         The government has provided dash camera video from Trooper Short's patrol car. The foregoing testimony of Trooper Short is directly contradicted by the video of the traffic stop, which plainly shows that he did not drive through the toll plaza lanes to initiate the traffic stop. Instead, the video - which begins with Trooper Short at a position outside of the toll plaza, approximately next to the toll booth - plainly depicts Short driving outside of the barrier separating the toll plaza from the Pikepass through lanes. He drove his patrol car along the outside of the barrier, to the area where the barrier ends and toll traffic is entering back onto the highway, and then he turned the patrol car around the end of the barrier, into the lanes coming out of the toll plaza, to make the stop.

         The discrepancies between the video and documentary evidence and Trooper Short's testimony - whether due to mistaken memory or a veracity issue - cast somewhat of a cloud on the reliability of his testimony. The fact that he drove his patrol car outside of the barrier instead of through the toll lanes (as he incorrectly testified) also calls into question his testimony that his vehicle was perpendicular, facing the lane entering the toll plaza, while watching approaching toll traffic through his passenger side window.[3]

         As noted, the Court has reservations about the reliability of Trooper Short's testimony regarding the details of the stop. However, other than asserting that the initial stop was premised upon a traffic statute that is void for vagueness (which will be discussed below), the defendants do not otherwise challenge Short's basis for initiating the traffic stop. Short testified that he had no doubt that the RV was following the semi in front of it too closely given the fog and the RV's speed, and Mr. Near himself stated in the video that he was “too close.” (See Video at 3:02-09). Thus, for purposes of this opinion, the Court will assume that Short had justification to initiate the stop based upon observing Near following too closely, in violation of Okla. Stat. tit. 47, § 11-310(a). That statute provides:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.”

Okla. Stat. tit. 47, § 11-310(a).

         Ms. Elfman and Mr. Wright assert a void-for-vagueness challenge to § 11-310(a). They correctly note that now-Justice Gorsuch raised in a Tenth Circuit concurrence a question as to whether the Oklahoma statute might be vague, see United States v. Law, 572 Fed.Appx. 644 (10th Cir. 2014) (unpublished). However, the Tenth Circuit has rejected void-for-vagueness arguments like those asserted here. In United States v. Hunter, 663 F.3d 1136, 1141 (10th Cir. 2011), the defendant was stopped for following a semi too closely, in violation of Kan. Stat. § 8-1523(a), which is identical to Oklahoma's § 11-310(a). The defendant in Hunter argued that the statute was unconstitutionally vague “because the term ‘reasonable and prudent' is too subjective to ...

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