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United States v. Komsonekeo

United States District Court, W.D. Oklahoma

June 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JASON KOMSONEKEO, Defendant.

          ORDER

          TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant's Motion to Suppress Evidence [Doc. No. 14], which the United States timely opposed [Doc. No. 15]. A hearing was held on May 28, 2019, at which Defendant personally appeared with appointed counsel, Assistant Federal Public Defender Paul Antonio Lacy, and the United States appeared through Assistant United States Attorney Ashley Altshuler. The Court received the testimony of two witnesses: Oklahoma Highway Patrol (“OHP”) Troopers Brady Webb and Chase Miller. A video[1]depicting the traffic stop was admitted as evidence and portions were played during the hearing. Gov't Ex. No. 1. Following the hearing, the United States submitted a supplemental brief. [Doc. No. 19]. Upon consideration of the filings and evidence presented, the Court issues its ruling.

         Defendant is charged in a one-count indictment with being a felon in possession of two firearms on January 10, 2019, in violation of 18 U.S.C. § 922(g)(1). [Doc. No. 1].

         Defendant seeks to suppress evidence obtained from the rental car he was driving and statements he made on January 10, 2019.

         FACTUAL BACKGROUND

         On January 10, 2019, at 7:50 p.m., OHP Trooper Brady Webb was sitting in his patrol car, which was parked in the center median, monitoring westbound traffic on Interstate 40. Using a handheld radar, Trooper Webb clocked Defendant's vehicle (2019 Chevy Cruze) traveling westbound on I-40 at 76 mph in a posted 70 mph zone. Trooper Webb followed the vehicle in his patrol car, and using his patrol car's front antenna same direction radar[2] clocked the vehicle's speed at 76 mph. In addition, he paced Defendant's vehicle with his patrol car's speedometer at 76 mph. At that point, Trooper Webb initiated a traffic stop of Defendant's vehicle just past Garth Brooks Boulevard on westbound I-40.

         Trooper Webb approached Defendant's vehicle on the passenger side and introduced himself. He informed Defendant of the reason for the traffic stop, and asked Defendant for his driver's license. Trooper Webb asked Defendant to walk back to his patrol car with him. He told Defendant he was going to issue him a warning and then Defendant could be on his way.

         Trooper Webb testified that when he was standing at the passenger side of Defendant's vehicle he observed a bottle of Febreze spray on the back floorboard behind the passenger seat; a new air freshener hanging from the gear shift; an excessive number of energy drinks[3] in the center console; a large Smartphone on a stand in the cup holder; an older model flip phone in the front passenger seat; a Chicago Bears jersey hanging in the backseat; a duffle bag of clothes on the backseat; and multiple food wrappers throughout the vehicle. Defendant was the only occupant of the vehicle.

         Trooper Webb indicated that the air freshener smell was strong, made his eyes water and nose burn, and was particularly significant given that Defendant was driving a 2019 model vehicle. Relying on his interdiction training and experience, Trooper Webb testified that people use air fresheners to try to mask the odor of illegal substances from an officer or a canine; that a large amount of energy or caffeinated beverages is indicative of nonstop cross-country travel; and the possession of multiple cell phones, including a cheap, older model pre-paid flip phone, is a common indicator of possible criminal activity. He advised that these types of phones are commonly used to coordinate criminal activity because they are hard to trace and can be discarded at a moment's notice.

         Trooper Webb opined that Defendant was overly nervous. When Trooper Webb approached the vehicle, Defendant gripped the steering wheel tightly. Defendant's hands shook when he gave Trooper Webb his driver's license, and his voice cracked when he said his name. Upon advising Defendant that he was going to write him a warning and then Defendant could be on his way, Defendant's level of nervousness increased. During their conversation in the patrol car, Defendant played with his hair and rubbed sweat off his hands onto his pants, even though it was cold outside and the interior temperature of patrol car was comfortable. In addition, Defendant responded to Trooper Webb's questions with “huh” and repeated the questions asked. Trooper Webb testified that, based on his training and experience, he viewed this as a stall tactic to allow Defendant to develop answers to the questions.

         Trooper Webb testified that Defendant gave inconsistent and vague information regarding a Chicago Bears football game he claimed to have recently attended while traveling and who accompanied him to the game. Initially, Defendant said he went with friends, but he later stated that he went with a family member. When asked to identify the family member, Defendant responded, “a family member” and that “family is family.” Later, Defendant indicated that “they” were Philadelphia fans. Thus, Defendant's account of who accompanied him to the game changed from friends to one family member to two family members.

         Trooper Webb also indicated that Defendant's travel plans were unusual. Defendant purportedly flew one-way from Fresno, California, to Fayetteville, Arkansas, and then drove 10 hours to Chicago to watch the game, and drove another 10 hours back to Fayetteville. The morning of January 10, Defendant rented a car to make the 24-hour drive from Fayetteville back home to Fresno, California. Trooper Webb opined that although the travel plans were not so implausible to independently suggest criminal activity, they were worthy of consideration along with the other factors identified.

         Eight minutes into the traffic stop, Trooper Webb believed, based on his training and experience in criminal interdiction, that he had reasonable suspicion to prolong the traffic stop. The factors he identified as giving rise to reasonable suspicion included: the overwhelming odor and presence of air freshener; two cell phones; the excessive number of energy drinks; Defendant's overly nervous behavior, his inconsistent account of who he went to the game with, and his unusual travel plans; and the fact that Defendant's sole source of income was derived from his work as his mother's caretaker, yet Defendant was able to afford airfare, a rental car, and a ticket to an NFL playoff game.

         Trooper Webb asked Defendant for his consent to search the vehicle. When Defendant did not consent to the search, Trooper Webb told Defendant to stay in the patrol car while he requested a canine to perform a free-air sniff around the vehicle. Trooper Webb testified that Trooper Miller arrived with his working dog, Cash, about eight minutes later.

         Trooper Miller has been an OHP trooper since February 2009 and a CLEET certified canine handler since October 2014. Cash, is a nine-year old Belgian Malinois, assigned to the OHP. Trooper Miller became Cash's handler in October 2014. Cash has been CLEET certified since that time. Trooper Miller testified that Cash is in good health and was in good health on January 10, 2019. He opined that Cash is “extremely accurate” in finding and communicating the odor of narcotics, and he has never had a false positive. He advised that Cash has been utilized hundreds of times to detect the odor of narcotics.

         Trooper Miller testified that Cash is a single purpose canine trained to locate narcotics. Cash has been trained in all weather conditions and completes monthly maintenance training. Cash has been trained to alert to the odor of narcotics; he can detect a lingering or dead scent odor, i.e., he can detect lingering odors even when the substance is no longer present. His training also included odor distractions. He is a passive alert dog, which means he will sit in the immediate area where he detects the origin of an odor.

         Trooper Miller testified that on January 10, 2019, he was a few miles away and responded to the traffic stop in less than 10 minutes after being called. Trooper Miller and Cash, following their normal routine, began the free-air sniff of Defendant's vehicle at the front passenger side of the vehicle. Consistent with Trooper Miller's testimony, the video shows Cash alerting on the passenger side of the vehicle between the front and back doors.

         Subsequently, Trooper Webb performed a probable cause search of the vehicle. A large amount of United States currency and two firearms were found inside the trunk.[4] A separate sniff was conducted by Cash of the currency at Troop SO Headquarters in Oklahoma City, and Cash alerted to the currency and its wrapping. After shaking the currency and a portion of its wrapping, ...


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