STATE v. ZUNGALI
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STATE v. ZUNGALI
2015 OK CR 8
348 P.3d 704
Case Number: S-2014-873
Decided: 05/01/2015
STATE OF OKLAHOMA, Appellant, v. BRANDON LEE ZUNGALI and DAISHA TYSHELL HARRIS, Appellees.
Cite as: 2015 OK CR 8, 348 P.3d 704
OPINION
¶1 The State of Oklahoma appeals the October 9, 2014 order entered by the Honorable Gary E. Miller of the District Court of Canadian County in Case Nos. CF-2014-143 and CF-2014-144, sustaining Appellee Zungali's and Harris's Motions to Suppress Evidence. The district court's ruling prohibited admission of all evidence seized during a search of Appellees' minivan. We exercise jurisdiction under 22 O.S.2011, § 1053(5) and reverse the district court's ruling.
BACKGROUND
¶2 Appellees were travelling eastbound on I-40 while Agent Wall of the Oklahoma Bureau of Narcotics and Dangerous Drugs [OBNDD] was conducting narcotics interdiction around mile marker 111 in Canadian County. He observed Appellees' minivan following "less than a second" behind the semi-truck in front of them. Appellees' minivan "appeared" to be a rental vehicle with a Florida license plate. According to Agent Wall, following too closely is "following closer than is reasonable and prudent." He explained that numerous studies and the Oklahoma Driver's Manual recommend a following distance of three seconds, that Appellees were travelling "much less" than a three-second distance and that following too closely is one of the top three causes of Oklahoma accidents. He used his stationary vehicle in the median to count the time interval between the two vehicles passing him and he was unable to "even count a second." He estimated the vehicles' speed between 65 and 70 miles per hour.
¶3 Agent Wall pursued Appellees' minivan and conducted a traffic stop approximately two miles from the observed traffic violation. Agent Wall directed a canine handler agent with the OBNDD, who had arrived at the scene, to have his drug dog scan the minivan. The dog alerted to the odor of drugs and during a search of the minivan, the officers found 45 packages of marijuana totaling approximately 49 pounds inside a couch in the back of Appellees' minivan. The State charged Appellees Harris and Zungali by Information on March 5, 2014, with Trafficking in Illegal Drugs in violation of 63 O.S.2011, § 2-415, and with Conspiracy to Traffic in Illegal Drugs, in violation of 21 O.S.2011, § 421.1
DISCUSSION
¶4 The State contends that the stop of Appellees' minivan for following too closely based on a violation of the "three second rule" was not an unreasonable seizure in violation of the Fourth Amendment to the United States Constitution, and we agree. Review of a district court's ruling on a motion to suppress evidence is a mixed question of law and fact; we consider the evidence in the light most favorable to the district court's ruling, accept those of the district court's factual determinations supported by evidence and review the ultimate determination of reasonableness under the Fourth Amendment de novo. See United States v. Augustine, 742 F.3d 1258, 1264-1265 (10th Cir. 2014); Coffia v. State, 2008 OK CR 24, ¶ 5, 191 P.3d 594, 596.
¶5 Both the United States and Oklahoma Constitutions guarantee the right to be free from unreasonable searches and seizures. U.S. Const. amend. IV; Okla. Const. art. 2, § 30. To stop a vehicle, police must have reasonable, articulable suspicion that the car or its driver is in violation of the law. McGaughey v. State, 2001 OK CR 33, ¶ 24, 37 P.3d 130, 136. "[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior." Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). To determine if a traffic stop violates the Fourth Amendment, we consider whether the officer's action was justified at its inception and whether the officer's subsequent actions were reasonably related in scope to the circumstances which justified the interference in the first place. McGaughey, 2001 OK CR 33, ¶ 24, 37 P.3d at 136.
¶6 This case concerns only whether the traffic stop was justified at its inception.2 "The validity of a traffic stop under the Fourth Amendment turns on whether th[e] particular officer had reasonable suspicion that th[e] particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction." United States v. Valenzuela, 494 F.3d 886, 888 (10th Cir. 2007) (quoting United States v. Tibbetts, 396 F.3d 1132, 1137 (10th Cir. 2005)). See also Lozoya v. State, 1996 OK CR 55, ¶ 32, 932 P.2d 22, 32. An officer's subjective motivation for stopping a particular vehicle is irrelevant. United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995). Agent Wall stopped Appellees for following too closely in violation of 47 O.S.2011, § 11-310(a) that provides a driver "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."
¶7 The Tenth Circuit has held that a trooper's use of a two-second "rule of thumb" to determine that a car was following the vehicle in front of it too closely provided the necessary reasonable suspicion to effectuate a traffic stop under a Kansas statute identical to Oklahoma's statute prohibiting following too closely.3 United States v. Nichols, 374 F.3d 959, 965 (10th Cir. 2004), cert. granted and opinion vacated to allow resentencing under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); opinion reinstated, 410 F.3d 1186 (10th Cir. 2005). The Tenth Circuit reaffirmed its holding in Nichols in United States v. Hunter,
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