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United States v. Hernandez

United States District Court, D. New Hampshire

July 9, 2019

United States of America
John Hernandez


          Landya McCafferty United States District Judge

         On March 26, 2018, a New Hampshire State Police Trooper pulled over John Hernandez after observing him commit a minor traffic violation while driving on Interstate 95. During the traffic stop, the Trooper questioned Hernandez, asked him to exit his vehicle, obtained his consent to search the vehicle, and found contraband.

         Hernandez is charged with possession with intent to distribute fentanyl in violation of 21 U.S.C. § 841(a)(1). He moves to suppress all evidence seized as a result of the search of his vehicle during the traffic stop. The government objects. On May 16, 2019, the court held an evidentiary hearing on this motion. For the reasons that follow, the court grants Hernandez's motion.


         On March 26, 2018, New Hampshire State Police Trooper Michael Arteaga was stationed in an unmarked cruiser near the Hampton tolls on Interstate 95. He testified that he was monitoring northbound traffic traveling through the tolls and that he would randomly pick license plates and run them in his database. He testified that he was monitoring traffic at this location because Interstate 95 is a “known drug corridor.”

         At approximately 3:30 p.m., the Trooper observed a black Toyota RAV4 with Massachusetts plates drive through the cash toll lane. He observed that the lone driver was male but did not notice his ethnicity. He was able to read the vehicle's license plate No. and queried it in his mobile data terminal. He learned that the vehicle was registered to “EAN Holdings, ” which he knows to be Enterprise Rentals. The Trooper testified that it was significant to him that the car was a rental because, based on his experience, rental cars are used for criminal activity, “specifically drug trafficking.”[1] The Trooper also noted that the color listed on the registration was red, while the vehicle he observed was black. He found it “odd” that a new car would be a different color than listed on its registration. After making these observations, the Trooper pulled onto the highway to catch up to and continue to monitor the RAV4.

         Observations of Tailgating

         The Trooper caught up with the RAV4 approximately one and one-half miles north of the Hampton tolls. He observed the vehicle in the right-most lane, or “lane one” while he was traveling in the left-most lane, or “lane four.” He estimated the RAV4's speed to be between 70 and 75 miles per hour. As he approached the vehicle from behind, the Trooper observed that the RAV4 was “right on top of the vehicle in front of it-about one car length” away. He observed this for approximately twenty to thirty seconds. He then observed the RAV4's brake lights come on in rapid succession and the vehicle slow to approximately 55 miles per hour. The Trooper slowed his cruiser to stay even with the RAV4 and moved into lane two to better observe its driver. The Trooper observed that the driver appeared stiff, had his hands on the steering wheel in “a ten and two manner” and sat far back from the steering wheel such that his body was concealed behind the door frame. At this point, the Trooper pulled directly behind the RAV4, activated his lights, and effected a traffic stop.

         Trooper Approaches Car for the First Time

         The Trooper approached the RAV4 on the passenger side. While approaching the car, he noticed two packages of unopened rubber bands next to some car cleaning supplies on the floor behind the driver's seat. The Trooper then made contact with the driver, Hernandez, and asked for his license and registration. At this point, the Trooper could observe that Hernandez is a non-Caucasian male. Hernandez provided his license and the vehicle registration without issue, told the Trooper it was a rental car, and handed him the rental agreement. The Trooper testified that Hernandez appeared stiff and anxious. Hernandez inquired why he had been pulled over. The Trooper replied that Hernandez had been following the vehicle in front of him too closely and that his car was described on the registration as red, when it was black. Hernandez appeared to calm down after hearing this explanation.

         The Trooper did not further question Hernandez about his tailgating or issue him a citation for that traffic violation at this point, or at any other point throughout the stop. Instead, the Trooper inquired about where Hernandez was headed. The Trooper testified that his inquiries about Hernandez's itinerary were not related to the traffic violation. Rather, the Trooper inquired about Hernandez's itinerary because he suspected that Hernandez was engaged in criminal activity-drug trafficking-and he wished to further investigate his suspicion.[2]

         The Trooper testified that when he first asked Hernandez about his destination Hernandez was “extremely stand-offish, ” his “demeanor was cold, ” and he gave “quick one-word answers.” During this exchange, Hernandez told the Trooper to “look him up” and that he had never been arrested. Hernandez also asked the Trooper whether he knew him. Hernandez said that the Trooper looked just like one of his customers at Pep Boys in Salem where he works. The Trooper replied that he had never been to Pep Boys.

         The Trooper continued to press Hernandez about his destination. Hernandez explained that he was traveling to the Kittery Outlets off exit three in Maine. The Trooper testified that he knows the Kittery Outlets to be a location where drug transactions occur. The two men then discussed what Hernandez intended to purchase at the Outlets. Hernandez stated that he intended to shop for Hollister jeans. At some point during this conversation, they also discussed the rental car. Hernandez explained that he had rented the car that same day, March 26, because he had recently repainted his own vehicle. The Trooper estimated that this conversation, which began when he first approached the vehicle, lasted between two and four minutes.

         Trooper Returns to Cruiser

         The Trooper then returned to his cruiser. He ran a license and warrant check and learned that Hernandez had a valid Massachusetts license and had no outstanding warrants. He also examined the rental agreement, making two notable observations. First, the rental agreement listed the color of the car as black, Gov't Exh. 2, while the registration listed it as red. The Trooper dismissed the color discrepancy as a mistake on the part of the Massachusetts DMV. Second, he noticed that the rental agreement was dated as beginning on March 22, not March 26.[3] The Trooper did not contact Enterprise Rentals to investigate this discrepancy. Nor did he ever ask Hernandez about this discrepancy. Finally, the Trooper conducted a brief Google search of the Kittery Outlets. He learned that there is no Hollister store at the Kittery Outlets, and they were observing “winter hours, ” closing at 6 p.m.

         Trooper Approaches the Car a Second Time

         The Trooper then approached Hernandez's car a second time, this time on the driver's side, and asked Hernandez to exit the car to speak with him further. The Trooper testified that he wanted to continue his conversation with Hernandez because he “was suspicious that [Hernandez] was potentially engaged in criminal activity based upon everything [he] had observed up to [that] point.”

          Hernandez complied. The two men moved to the rear of the RAV4 towards the passenger side such that they were positioned between the RAV4 and the Trooper's cruiser. Once outside his vehicle, Hernandez became increasingly anxious and exhibited a “bladed” stance.

         Pat-down Search

         The Trooper observed a large bulge in Hernandez's front jean pocket. He asked Hernandez for consent to conduct a pat-down search for weapons. Hernandez agreed. As a result of the pat down, the Trooper determined that the bulge was a large wad of cash, that Hernandez explained was “just under” a $1, 000. The Trooper also found a small flip phone, which Hernandez described as his “other phone.”

         The Trooper again asked Hernandez what he intended to shop for at the Outlets. Hernandez reiterated that he was planning to shop for Hollister jeans and added that he was also looking for Nike shoes. The Trooper then told Hernandez that he had looked it up and there was no Hollister store at the Outlets. The Trooper testified that, at this point, Hernandez became increasingly anxious and stated that he was being harassed. The Trooper continued to press Hernandez about the fact that no Hollister store existed at the Outlets.[4]

         Trooper Receives Consent to Search

         The Trooper then inquired whether there was anything illegal in the car and Hernandez said no. The Trooper then asked whether there were any drugs in the car. Hernandez responded that he does not do drugs. The Trooper asked if he could search the car and Hernandez said yes. At this point, approximately thirteen to fifteen minutes had elapsed since the Trooper returned to his cruiser to run Hernandez's license and registration.

         Around this same time, Trooper Matthew Locke arrived to the scene. Trooper Locke stood with Hernandez while Trooper Arteaga prepared a consent-to-search form. The total time that had elapsed from the moment Trooper Arteaga observed Hernandez drive through the tolls until he generated the consent-to-search form was approximately twenty-three minutes. Trooper Arteaga reviewed the form with Hernandez and Hernandez signed it. Trooper Arteaga then searched the RAV4. He discovered approximately 400 grams of suspected fentanyl in the center console. He then arrested Hernandez. Hernandez was subsequently indicted on one count of possession with intent to distribute fentanyl.


         Hernandez moves to suppress all evidence seized as a result of the March 26 traffic stop. He contends that his Fourth Amendment rights were violated because: (1) the initial traffic stop was not supported by probable cause that a traffic violation had occurred; and (2) even if the initial stop was justified, the Trooper impermissibly extended the traffic stop without reasonable suspicion that Hernandez was engaged in criminal activity. Hernandez argues that the evidence subsequently found in his vehicle should be suppressed as fruit of the poisonous tree of the unlawful stop and extended detention.

         The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. Amend. IV. The temporary detention of individuals by police during a traffic stop constitutes a seizure under the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 810 (1996). To ensure that all such seizures satisfy the Fourth Amendment's reasonableness requirement, the court must engage in a two-step inquiry. United States v. Mouscardy, 722 F.3d 68, 73 (1st Cir. 2013). First, the court must determine whether the seizure was justified at its inception. Id. Second, the court must examine whether the “actions undertaken during the stop were reasonably related in scope to the stop itself unless the police had a basis for expanding their investigation.” Id. (internal quotation marks and brackets omitted). Where, as here, the defendant challenges the constitutionality of a warrantless seizure undertaken based on reasonable suspicion, the government bears the burden of proving that the seizure was sufficiently limited in its scope and duration. See Florida v. Royer, 460 U.S. 491, 500 (1983); United States v. Acosta-Colon, 157 F.3d 9, 14 (1st Cir. 1998).

         I. Initial Traffic Stop

         A traffic stop is reasonable and properly justified at its inception if the officer has “probable cause to believe that a traffic violation has occurred.” Whren, 517 U.S. at 810; United States v. McGregor, 650 F.3d 813, 820 (1st Cir. 2011). “Probable cause exists when police officers, relying on reasonably trustworthy facts and circumstances, have information upon which a reasonably prudent person would believe the suspect had committed or was committing a crime.” United States v. Pontoo, 666 F.3d 20, 31 (1st Cir. 2011) (internal quotation marks omitted). Courts in the First Circuit have held that even minor traffic violations can justify a traffic stop. See, e.g., United States v. Dunbar, 553 F.3d 48, 55-56 (1st Cir. 2009) (holding initial stop justified based on officer's observation and video showing defendant's vehicle following another car too closely); United States v. Garcia, 53 F.Supp.3d 502, 509-10 (D.N.H. 2014) (finding initial traffic stop justified based on officer's observation that vehicle in which defendant was passenger crossed once over dashed line and once over solid fog line).

         The Trooper testified that he stopped Hernandez based on his observation that Hernandez was following the vehicle in front of him too closely in violation of New Hampshire Revised Statutes Annotated (“RSA”) § 265:25. RSA 265:25, I, provides: “The driver of a vehicle shall not follow another vehicle more closely than is reasonable and ...

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