United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, CHIEF JUDGE.
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
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.
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
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.
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).
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.
The Initial Stop
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)).
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
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.). 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.).
Short testified that he first saw the RV from about 100 to
150 yards away from his patrol car. 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.”
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.
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).
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.
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.
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).
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