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United States v. Sandoval

United States District Court, W.D. Kentucky, Louisville Division

February 10, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
PABLO SANDOVAL, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge

         Pablo Sandoval was arrested after police discovered a large amount of heroin and methamphetamine in the trunk of Sandoval's car. Sandoval has moved to suppress the narcotics from evidence, claiming that law enforcement illegally searched his trunk. The Court held a suppression hearing on August 16, 2016, during which Detectives Kevin McKinney and Derrick Payne testified. Both detectives testified credibly and consistently. After reviewing the detectives' testimony and the evidence of record, the Court is satisfied that both the stop and search of Sandoval's vehicle, including its trunk, were justified based upon both probable cause and consent. Therefore, as more fully explained below, his motion to suppress [DN 44] must be DENIED.

         I. Background

         On the afternoon of August 29, 2015, Detective Kevin McKinney, then a ten-year veteran of the Louisville Metro Police Department's narcotics unit and a member of an FBI task force, was following behind Pablo Sandoval's car in his own patrol vehicle. McKinney admitted that Sandoval was already the target of a police investigation at that time. [DN 63 at 23.] At the intersection of Pinewood Road and Produce Lane, McKinney observed Sandoval fail to signal his right turn from Pinewood onto Produce. [Id. at 18; see also DN 98 at 1.] He continued to follow Sandoval's vehicle, a blue Chevy sedan, as it turned left from Produce Lane onto Poplar Level Road. Just before Sandoval reached the Indian Trail intersection, McKinney observed Sandoval fail to signal once again, this time when changing lanes. [DN 63 at 4.] As Sandoval turned left onto Indian Trail, McKinney activated his emergency equipment and initiated a traffic stop. [Id.] Sandoval pulled into the parking lot of Indi's Restaurant. [Id.]

         When McKinney approached Sandoval's vehicle, he noticed not only that Sandoval had a passenger, Steven Arciga-Coria, but also the “odor of marijuana coming from the vehicle.” [Id.] The smell was apparent to McKinney when Sandoval handed McKinney his driver's license. [Id. at 29.] Detective Derrick Payne, who arrived very soon after McKinney initiated the stop, similarly approached the passenger side of Sandoval's car. [Id. at 50.] He testified that he “immediately could recognize the strong odor of marijuana coming from the vehicle.” [Id.] After the detectives spoke with Sandoval and Arciga-Coria for a short while, they met at the rear of Sandoval's car, and Payne informed McKinney that he too smelled marijuana. [Id. at 55.]

         Based upon the detectives' similar observations, they decided to search the vehicle. McKinney stated that he asked Sandoval for consent to search his car, which Sandoval granted. [Id. at 4.] McKinney was speaking in English, and believed that Sandoval understood what he was saying because Sandoval responded in English. [Id. at 4-5.] Earlier, McKinney had asked Sandoval for his driver's license in English, and Sandoval did in fact produce his license. [Id. at 30.] However, McKinney admitted that he had no personal knowledge regarding whether Sandoval was proficient in the English language. [Id. at 31.]

         After Sandoval gave his consent for the detectives to search his car, McKinney asked Sandoval and Arciga-Coria (in English) to exit the vehicle, and both men complied. [Id. at 35, 41.] Before the detectives proceeded with their search, Payne returned to his vehicle to retrieve his K-9 unit, intending to have the dog sniff the car for narcotics. [Id. at 57.] When Payne returned to Sandoval's vehicle with his K-9, he noticed a small bag of marijuana lying on the ground near Arciga-Coria, now seated with Sandoval on the curb. [Id. at 57-58.] Payne estimated that the bag contained ten to twelve grams of marijuana. [Id. at 58.] The marijuana was apparently discovered by McKinney, who testified that Arciga-Coria “had [the bag] in his pants when he got out” of Sandoval's car. [Id. at 45.] Payne then walked his K-9 unit around the vehicle, and the dog alerted that narcotics were present in the “rear portion of the vehicle.” [Id. at 6-7.] When the detectives opened the trunk, they discovered a cardboard box containing what appeared to be several kilos of narcotics. [Id. at 7.] A field test of the drugs was positive for methamphetamine and heroin. [Id.] Sandoval and Arciga-Coria were then taken into custody. [Id.]

         Sandoval now moves to suppress the narcotics found in the trunk, claiming that the detectives' search of his vehicle violated the Fourth Amendment. [DN 44.][1] Shortly before the suppression hearing, Sandoval's counsel discovered that the government sought to uphold the search based in part upon the K-9 unit's indication that drugs were present. Since that time, the parties have engaged in extensive motion practice regarding the K-9 search, eventually culminating with the United States' representation to the Court that it does not intend to rely upon the dog sniff in establishing probable cause. Accordingly, the Court has not considered the actions of Payne's K-9 unit in reaching its decision.

         Additionally, during the most recent hearing, Sandoval attempted to call Arciga-Coria, his co-defendant, as a witness. As he is awaiting sentencing, Arciga-Coria refused to testify, citing his Fifth Amendment privilege against self-incrimination. Relying upon Hoffman v. United States, 341 U.S. 479 (1951), and Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067 (6th Cir. 1990), this Court held that based upon the nature of Sandoval's questions, Arciga-Coria had a reasonable fear that any answers he gave might later be used against him during his sentencing, and he was therefore entitled to assert his Fifth Amendment rights. Sandoval offered no other evidence in support of his motion to suppress. This matter is now ripe for adjudication.

         II. Discussion

         Sandoval's motion to suppress raises two distinct issues. First, did Detective McKinney conduct a lawful traffic stop of Sandoval's vehicle? And if the initial stop was lawful, were Detectives McKinney and Payne further justified in searching Sandoval's truck without a warrant? As explained in more detail below, because McKinney observed Sandoval fail to use his turn signal, the Fourth Amendment and Kentucky law permitted him to initiate a traffic stop. Further, because both McKinney and Payne smelled the odor of marijuana coming from Sandoval's car, and because Sandoval gave McKinney his consent to search the vehicle, the detectives' search was reasonable under the Fourth Amendment. Therefore, the evidence seized from the trunk of Sandoval's care need not be suppressed.

         A. Traffic Stop

         First, Detective McKinney had probable cause for his initial traffic stop of Sandoval's vehicle. Under Kentucky law, “[a] person shall not turn a vehicle or move right or left upon a roadway . . . without giving an appropriate signal.” KRS 189.380(1). Courts interpreting this provision have held that KRS 189.380 applies to drivers changing lanes as well as those turning onto a different roadway. Commonwealth v. Fowler, 409 S.W.3d 355, 360-61 (Ky. Ct. App. 2012). An officer has probable cause under the Fourth Amendment to stop a vehicle when he observes a driver violate a traffic law. See Whren v. United States, 517 U.S. 806, 810 (1996). “[S]o long as the officer has probable cause to believe that a traffic violation has occurred or was occurring, the resulting stop is not unlawful and does not violate the Fourth Amendment.” United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993). It follows, then, that McKinney had probable cause to stop Sandoval when he observed Sandoval fail to signal not once, but twice. See UnitedStates v. Colbert, No. 3:10-CR-151, 2011 WL 2746811, at *3 (W.D. Ky. July 13, 2011) (traffic stop lawful when officers observed defendant fail to use turn signal). Moreover, because McKinney observed Sandoval ...


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