United States v. Ochoa

4 F. Supp. 2d 1007, 1998 U.S. Dist. LEXIS 6614, 1998 WL 225027
CourtDistrict Court, D. Kansas
DecidedApril 6, 1998
Docket97-10108-01, 97-10108-02
StatusPublished
Cited by26 cases

This text of 4 F. Supp. 2d 1007 (United States v. Ochoa) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ochoa, 4 F. Supp. 2d 1007, 1998 U.S. Dist. LEXIS 6614, 1998 WL 225027 (D. Kan. 1998).

Opinion

MEMORANDUM ORDER

MARTEN, District Judge.

On August 17, 1997, at approximately 1:30 p.m., defendants Robyn K. Ochoa and Kevin M. Alley were stopped by Kansas State Troopers Jay Rule and Richard Jimerson while traveling eastbound on Interstate 70. Ochoa was driving a Gold Lincoln Continental and Alley was a passenger in the Lincoln. Marijuana was discovered in the trunk of the Lincoln and the defendants were arrested.

Both Ochoa and Alley moved to suppress the evidence seized from the trunk of the Lincoln. They also filed various pretrial discovery and in limine motions. The court held a hearing on February 11, 1998, and issued an order on February 19, 1998, suppressing the evidence. This opinion explains the ruling.

I. The Motions to Suppress.

A. Facts.

The court finds the following facts, based upon the testimony and other evidence admitted at the hearing. Additional findings of fact are made in the analysis, below.

Troopers Rule and Jimerson were stopped on the eastbound shoulder of Interstate 70 near the Colorado border having just completed a traffic stop when two eastbound vehicles passed them. Ochoa was driving the first car, a gold Lincoln. Alley was a passenger in the Lincoln. A Toyota was following the Lincoln too closely and the officers could not see a tag on the Toyota. The officers testified traffic was light, 1 which led them to believe the two vehicles were traveling together.

The officers followed and observed the vehicles for several miles. The officers pulled up behind the Toyota and observed that it had a temporary tag, but they could not read the expiration date. Instead of stopping the Toyota, they pulled alongside it in the passing lane to observe the occupants. •

The officers traveled beside the' Toyota for approximately 15 seconds. Officer Rule testified the patrol car had no lights on top of it and a person looking at it in the rearview mirror might not recognize it was a highway patrol car. Officer Jimerson testified it was marked on the sides and the trunk. The court finds the vehicle was readily identifiable as a police ear.

Officer Rule then observed the Lincoln briefly drift one and a half to two feet onto the shoulder and called this to Officer Jimer-son’s attention. The Lincoln promptly returned to its proper lane of travel. Rule testified that a driver can drift briefly if distracted, citing as examples a driver pouring a cup of coffee or changing a tape. The officers pulled forward to see if the driver of the Lincoln was wearing her seat belt, which she was. The officers then backed off the Lincoln to the Toyota, where Jimerson signaled to the Toyota to pull over. Rule pulled in behind the Lincoln and activated the emergency lights to stop it.

The officers testified the Toyota was stopped for following too closely and to check the expiration date on the temporary tag. They stopped the Lincoln for failure to maintain a single lane. Neither vehicle was speeding.

Trooper Rule went up to the Lincoln. Ochoa produced a valid Rhode Island driver’s license and a rental agreement for the car. The ear had been rented by Alley in Las Vegas on August 16, 1997, and was to be returned there on August 22,1997, according to the government, or August 23, according to Alley. 2 Trooper Rule remembered the rental papers showing Alley with a permanent address in Rhode Island and a Las Vegas address at Econo-Lodge. He asked Ochoa if they were traveling with the Toyota and Ochoa said yes.

*1010 Trooper Rule asked Ochoa if she was getting sleepy. According to ■ Rule’s report, Ochoa said no and explained that she was trading driving with Alley, who appeared to be asleep in the back seat. 3 At the hearing, the government argúed that Ochoa actually said “I’m a little tired,” relying on a transcript prepared by a law enforcement officer from the videotape of the stop. The court viewed the videotape with and without the transcript and finds it impossible to determine what was said from the videotape. The version Trooper Rule put in his report, i.e., that the driver responded she was not sleepy, is adopted by the court as that is the response Rule would have relied upon during the stop.

Trooper Rule asked Ochoa about their travel plans. Ochoa said they had been living in Las Vegas for two months and were moving back to Rhode Island. Alley had rented the car in Las Vegas for the move. She was driving because Alley was tired. Rule returned to the patrol car with Ochoa’s papers and began writing a warning citation for failure to maintain a single lane.

Meanwhile, Trooper Jimerson had approached the Toyota, which was being driven by Carlos ■ Mendez and was registered to Alley. A passenger was in the car with Mendez. Mendez told Jimerson they were going to' Boston to visit some girls. Jimer-son did not ask Mendez at that time if he (Mendez) was traveling with the Lincoln.

Trooper Jimerson recognized Mendez because he had issued him a warning ticket for speeding a few weeks earlier.' Jimerson testified he thought at the time of the earlier. stop the driver was serving as an escort for a drug courier in a van. However, Jimerson said no drugs were located in the earlier stop and the police were unable to justify a stop of the van. Jimerson returned to the patrol car to write Mendez a warning citation for following too closely.

The troopers compared notes in the patrol car. The officers noted the Toyota was registered to Alley, who had rented the Lincoln. Jimerson told Rule that the occupants of the Toyota had not mentioned they were traveling with the Lincoln and said they were going to Boston. Jimerson mentioned that he recognized Mendez and thought he was working as an escort for drug couriers. The officers joked about how much marijuana they would find in the Lincoln. At the hearing, Rule testified that at the time, he planned to do whatever he could to .get into the trunk of the Lincoln. Trooper Rule was not aware at the time of the stop that Boston and Rhode Island are 40 miles apart, an inference the court draws from his testimony at the suppression hearing that the 40 mile distance “does not sound right,” that he thought they were farther apart.

Trooper Rule returned to the Lincoln and leaned on the car. He returned Ochoa’s papers and gave her a copy of the warning citation. Rule stepped back from the car and told Ochoa to have a good trip, immediately moved back toward the car, and asked Ochoa if she would answer a few questions. Before Ochoa could respond, Rule was leaning on the ear again. Ochoa said, “Sure.” Trooper Rule testified it was unsafe to drive away with someone leaning on your car. Rule also testified he did not intend to let Ochoa leave. Rule asked Ochoa if she was hauling anything illegal, such as guns, drugs, or large amounts of money. Ochoa said, “no.” Rule then asked several times if he could search the trunk. Ochoa asked why, but never consented to the search.

At this point, Rule explained that he was going to work a drug dog on the vehicle because of inconsistent answers provided by the occupants of the two cars and left for a few minutes.

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Cite This Page — Counsel Stack

Bluebook (online)
4 F. Supp. 2d 1007, 1998 U.S. Dist. LEXIS 6614, 1998 WL 225027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ochoa-ksd-1998.