People v. Reyes

Opinion

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I IN THE SUPERIOR COURT "'='r .iliil l? ,tFi lf ' l4 OF'GUAM 2 Ci".L:i:ii1" iiir Ci]LjfiT .| PEOPLE OF GUAM, ) Criminal CassNo. ,.1r....... CF0394-06 J Plaintiff, 4 V. DECISION AND ORDER re: Motion to Suppress 5 DAVID JOHN JR. REYES,

6 Defendant.

8 This matter came before the Honorable Judge Michael J. Bordallo on June 4,2009.

9 The People were represented by Assistant Attomey General William B. Pole. Defendant

10 was represented by Attomey Stephen P. Hattori. Having reviewed the memorandum and

l1 papers presented, the court now issues the following decision granting Defendant's motion

t2 to suppress.

l3 BACKGROUND t4 On July 27,2004, Defendant was indicted for Possession of a Schedule [I Controlled

15 Substance, a 3rd Degree Felony. The indictment arises out of evidence obtained from the

16 roadside search of a vehicle Defendant was driving when he was stopped for traveling 40

T7 mph in a 35 mph zone on Harmon Loop Road. At the hearing Officer Piolo testified that he

18 formed the intent to pull Defendant over for a speeding violation when he, traveling the

19 opposite way saw the Defendant signal, then pass a car, then signal again and pass another

20 car. At that point intent on stopping the Defendant's vehicle OfFrcer Piolo testified he

2l performed a U-Turn, paced the Defendant's vehicle and initiated a trafEc stop.r

22 DISCUSSION

24 t The court notes that the People did not present any evidence that in pacing the Defendant's 25 vehicle Officer Piolo's speedometer was calibrated correctly or that its calibration had recentlv been tested- 1 Defendant requests that the evidence obtained during the search of his vehicle be

2 suppressed . Mem. at 1. He supports this request by asserting that he did not give consent to a J search the vehicle and that by searching his vehicle the officers exceed the scope of the

4 traffic stop.Id. at2-3. Defendant's assertions are not verified or otherwise supported by

5 affidavit. The People in opposition argue that the search of the vehicle was justified by

6 reasonable suspicion.

7 ln Guam criminal motions are regulated by Section I.27 of Title 8 of the Rules of

8 Criminal Procedure. 8 Guam Code Ann. 5 1.27 (2008). It provides,

9 An application to the court for an order shall be by motion. A motion other than one made during a trial or hearing shall be in writing unless the court permits it to 10 be made orally. It shall state the grounds upon which it is made and shall set forth the relief or order sought. It may be supported by afEdavit. 11 Id. I2 In the federal circuits, motions to suppress are reviewed under the following standard: 13 "[A] defendant seeking an evidentiary hearing on a motion to suppress must provide t4 sufficient information 'to enable the court to conclude that a substantial claim is presented 15 and that there are disputed issues of material fact which will affect the outcome of the T6 motion. "' U.S. v. Juarez, 454 F .3d 717 , 720 (7th Cir. 2006)(intemal citations omitted). t7 Once a defendant has met its burden of sufficiency, the Government then bears the burden of l8 showing by a preponderance of the evidence the legality of its actions. US. v. Alexander, T9 589 F.Supp .2d 777 ,790 (E.D. Tex. 2008); see, Colorado v. Connelly, 479 U.S. 157, 158 20 (1986)(as applied to amiranda waiver); see, U,S. v. Vanvliet,542F.3d259,266 (lst Cir. 2l 2008) (as applied to a consent search). 22 In 2006 the Guam Supreme Court held that, "[p]olice officers may conduct an 23 investigatory stop as "[t]he Fourth Amendment permits brief detentions when a police 24 officer has a reasonable suspicion that an individual was engaged in or is about to be 25 Page -2- I engaged in illegal conduct." People of Guam v. Cundffi 2006 Guam 12,n40 (Sup. Ct. Guam

2 2006). A finding of reasonable suspicion must include specific and articulable facts that, a J together with rational inferences, reasonably suggest that criminal activity has occurred or is

4 about to occur. Terry v. Ohio,392 U.S. 1,22-24, (1968) and United States v. Cortez,449

5 U.S. 4l l, 417, (1981)(courts are to look to the totality of the circumstances when analyzing

6 whether the detention was justified by reasonable suspicion).

7 In addition to the protections provided the citizens of Guam through the Organic Act,

8 Section 30.10 of Title 8 of the Guam Code provides, "[w]henever a peace officer encounters

9 any porson under circumstances which reasonably indicate that such person has committed,

10 is committing or is about to commit a criminal offlense, the peace officer may detain such

11 person." 8 Guam Code Aru"r. $31.10. Section 30.20 explaining the purpose of 30.10

t2 provides,

13 Detention pursuant to $30.10 shall be for the purpose of ascertaining the identity of the person detained and the circumstances surrounding his presence abroad t4 which lead the officer to believe that he had committed, was committing, or was about to commit a criminal offense, but such person shall not be compelled to 15 answer any inquiry of the peace officer. t6 Id. at $ 30.20. Section 30.30 of the same Title further limits investigatory detentions as t7 follows, "[n]o person shall be detained under the provisions of $30.10 longer than is 18 necessary to effect the purposes of that section and in no event longer than fifteen (15) t9 minutes." Id. at $ 30.30. 20 In 2001 the Guam Supreme Court analyzed an issue similar to the one presented in the 2l instant case. People v. Chargualaf,2001 Guam l,nl2-27 (Sup. Ct. Guam 2001). In 22 Chargualafthe defendant was stopped when officers noticed the vehicle that he was driving 23 had a cracked windshield and was missing a license plate. Id. atf[3. The officer approached 24 the vehicle and asked the defendant if had any drugs or weapons in the vehicle and after 25 Page -3- I observing his nervousness asked whether he could search the vehicle.ld. Defendant

2 Chargualaf consented. Id. The Guam Supreme Court analyzingthe legality of the stop, the

J search and the voluntariness of the consent first held that the decision to stop an automobile

4 is reasonable where the police have probable cause or reasonable suspicion to believe that a

5 traffi c violation has occurred. .Id.

6 In this case Officer Piolo testified that he paced or followed the Defendant, long

7 enough to determine that the Defendant was traveling 40 mph in a 35 mph zone. Defendant

8 testified that he was not speeding. Based upon the testimony presented to it the court is

9 unable to find by a preponderance of the evidence that the Defendant was speeding.

10 Furthermore, the court finds that traveling 40 mph in a 35 mph zone,the court finds such

l1 evidence to be de minimus an not sufficient to support a speeding violation. 9 Guam Code

l2 Ann. $ 7.67 (200q.2

l3 Having made this finding, the court, cannot as in Chargualaf, findthat there was

l4 l5 t6 2 Section 7.67 provides, t7 The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant 18 circumstances, it finds that the defendant's conduct: t9 (a) Was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose ofthe law 20 defining the offense; (b) Did not actually cause or threaten the harm or evil sought to be prevented by 21 the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or 22 (c) Presents such other extenuations that it cannot reasonably be regarded as 23 envisaged by the Legislature in forbidding the offense. The court shall not dismiss a prosecution under this Subsection without filing a written statement of 24 its reasons. 9 Guam Code Ann. 5 7.67 (2008). 25 Page -4- I specific and articulable facts which justified the Defendant's initial detention.3 United

2 States v, Cortez,449 U.S. 4ll, 417, (1981). a J Moreover and further in the altemative, as it was held by the Guam Supreme Court in

4 Chargualaf, once the officer began to question the Defendant about matters unrelated to the

5 traffic stop a new detention began. Chargualaf atll9-20. Although further investigative

6 questioning regarding criminal activity outside of the scope of the traffic does not, in itself,

7 implicate the Fourth Amendment, a further restriction on a person's liberty must be justified

8 by reasonable suspicion for that line of questioning. Id. Officer Piolo testified that after

9 observing the defendant's nervousness he asked the Defendant whether he had any drugs or

l0 weapons in the vehicle. The officer also testified that he subsequently asked and received

1l permission to search the vehicle. The Defendant testified that he did not give the ofEcer his

t2 consent to search the vehicle. The officer's questioning the Defendant about drugs and

l3 weapons was outside the scope of the traffic detention. Id. In this case the court is not

l4 persuaded that the Defendant's nervousness was a sufficient or articulable reason for the

l5 further detention of the Defendant.

t6 The 10th Circuit has repeatedly held that, "nervousness is of limited significance in

t7 determining reasonable suspicion and that the government's repetitive reliance on . . .

l8 nervousness...asabasisforreasonablesuspicion...mustbeheatedwithcaution."

t9 Poolaw v. Marcantel, 565 F.3d 721, 737 (l}thcir. 2009). In 2005 the l0th Circuit

20 explained, "fN]ervousness is a sufficiently common-indeed natural-reaction to confrontation

2I 22 ' It is important to note that notwithstanding this initial finding that the cause of the stop of 23 the Defendant was justified, the People presented no evidence that the length of the investigatory detention was within the Defendant's statutory rights. 8 Guam Code Ann. 24 $30.30 (2008). Absent such a showing the court is unable to find that the length of the stop was justified. 25 Page -5- 1 with the police that unless it is unusually severe or persistent, or accompanied by other,

2 more probative, grounds for reasonable suspicion, it is of limited significance in determining a J whether reasonable suspicion exists." United States v. Santos,403 F.3d 1120,lI27 (l}th

4 Cir.2005). Officer Piolo testified that he inquired about drugs and weapons for his safety

5 and for the safety of the Defendant. However he did not testiff that this safety concern was

6 justified by any specific facts or fact based policy. The officer further testified that he

7 routinely asks all persons who commit traffic violations if theywill consent to a vehicle

8 search. The court finds this testimony not credible and in the alternative, absent a showing

9 of probable cause, in violation of a person's statutory and organic rights. 8 Guam Code Ann.

t0 $$ 30.20 and 30.30. Moreover unlike the court in Chargualafthis court was not presented

l1 with any evidence that Defendant was aware that he was free to leave and not under further

I2 Govemment restraint. Alexander,589 F.Supp.2d777,790 and Chargualaf atllg-2}.

t3 Absent some further articulable fact the court is unable to find by a preponderance of the

t4 evidence that the Defendant's further detention, which began when Officer Piolo inquired

l5 whether Defendant Reyes had any drugs or weapons in his vehicle, was justified by

r6 reasonable suspicion. United States v. Cortez, 449 U .5. 4ll, 417, (l 98 1 ).

t7 CONCLUSION l8 For the reasons above Defendant's motion to suppress is granted. Absent some

19 showing of a means for the independent discovery of the evidence in question the people are

20 precluded from introducing any evidence arising out of the search of the vehicle defendant

2l was driving at the time of the traffrc stop.

22 SO ORDERED this i4auuof June 2009. -n'n 23 Michael J. Bordallo 24

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