Relying in large part on the Supreme Court’s relatively recent decision in Rodriguez v. United States, — U.S.-,
I. PROCEDURAL BACKGROUND
On December 15, 2014, the government filed a criminal complaint, alleging that defendant had possessed with the intent to distribute methamphetamine and heroin under 21 U.S.C. § 841(a)(1).
The court completed the first day of the evidentiary hearing on September 23, 2015 and, due to various scheduling conflicts and requests for continuances, completed the second day of the evidentiary hearing on March 29, 2016. ECF Nos. 38 & 66. Shasta County Deputy Sheriff Jesse Gun-sauls, one of the two deputies involved in the traffic stop, testified for the government. Jeff Dalton, an employee with Enterprise Car Rental’s Sacramento legal compliance office, and Laurie Sowder, a training manager at a consolidated 911 dispatch center in Shasta County, testified for defendant. The following exhibits were admitted into evidence:
• a dash cam video of the traffic stop (Ex. 1; Bates No. 0115);
• a photograph of Cornejo’s rental car showing the position of the deputies’ vehicles at the time of the stop, after Deputy Hughes arrived (Ex. 2; Bates No. 050);
• photographs of the passenger area and passenger side floor of Cornejo’s rental ear at the time of the stop (Exs. 3, 3a; Bates Nos. 0033, 0034);
• a photograph of Cornejo’s Washington state driver’s license (Ex. 4; Bates No. 0081);
• Cornejo’s rental car agreement and photographs of the rental agreement (Exs. 5, 6a, 6b, 6c; Bates Nos. 0016, 0060, 0061, 0063);
• a photograph of the warning citation completed by the deputies for Corne-jo’s alleged traffic violation (Ex. 7; Bates No. 0011); and
• the Shasta County Sheriffs dispatch logs for the incident (Ex. 15; Bates Nos. 00128, 00130-33).
The parties submitted closing arguments in the form of post-hearing briefs. ECF Nos. 76 & 77. The court heard oral
II. RELEVANT FACTS
A. Initial Stop
On Saturday, December 13, 2014, at or about 9:09 a.m., Deputy Gunsauls was traveling north on Interstate 1-5 near Red-ding, California. Dashboard Video 9:08:52,
Gunsauls observed a white Nissan Sen-tra sedan (“the sedan” or “the rental car”) ahead of him in the number one lane (far left lane), which he visually estimated to be traveling at seventy miles per hour. Tr. 29-30; see Rep. 1. The posted speed limit was sixty-five miles per hour. Tr. 30; see Rep. 1. Cornejo was the driver and sole occupant of the sedan. Tr. 143,150; Rep. 1. Gunsauls moved directly behind the sedan in the number one lane and activated his radar unit, which returned a reading of seventy miles per hour. Tr. 29-30; Rep. 1. As Gunsauls approached the sedan, Corne-jo slowed to sixty miles per hour, five miles per hour below the posted speed limit. Tr. 30; Rep. 1. Gunsauls testified that he then stopped the sedan because it “was impacting other traffic on the roadway” and had violated California’s speed laws prohibiting excessive or excessively slow speeds, California Vehicle Code sections 22349
Once Gunsauls activated his overhead lights, the in-car camera and audio system automatically started recording. Tr. 24-26; Vid. 9:08:52. Throughout the stop, as described below, Gunsauls turned his microphone off and on at various times to selectively mute the audio recording. Tr. 25-28, 168-69. Hughes did not have a microphone on his uniform, so Gunsauls controlled the audio recording completely. Tr. 56. Gun-sauls testified that he turned off his microphone during his conversations with Hughes and other law enforcement personnel for “officer safety reasons.” Tr. 28. When asked what he meant by this, Gun-sauls explained that someone watching the video at a later date could learn his tactics, and that he “[didn’t] want to educate the persons that are committing these crimes on how to better do them.” Tr. 180; see also Tr. 28,164-66.
In response to Gunsauls’ emergency lights, Cornejo pulled over immediately. Vid. 9:08:52-9:09:10; Tr. 80, 143. Cornejo accidentally turned on the windshield wipers instead of his blinker. Vid. 9:09:16-9:09:19; Tr. 175. Gunsauls approached the passenger side door and told Cornejo he stopped him because Cornejo was driving at seventy miles per hour and then “slowed way down” to sixty miles per hour, and there were “cars passing [him] on the wrong side of the road.” Vid. 9:09:28-9:09:39; Rep. 1. He asked for Cornejo’s license and the registration and proof of insurance for the car. Id. 9:09:50-9:10:03. Cornejo told him that the sedan was a rental and that he was driving to Washington. Id. 9:10:05-09:10:10; Rep. 1. Cornejo first handed Gunsauls a credit card, realized his mistake, and then gave him a valid Washington state driver’s license and a rental agreement from Enterprise Car Rental. Tr. 32; Rep. 1.
The rental agreement was a pre-printed Enterprise form with handwriting on it. Exs. 5, 6a, 6b, 6c; Tr. 41. Gunsauls testified that the rental agreement appeared suspicious, because he had never seen a handwritten rental agreement before, the agreement included a manual imprint of Cornejo’s credit card, and the agreement overall did not appear complete or “legitimate.” Tr. 41, 45-46. In addition, the agreement had the phrase “CA only” written on it, even though Cornejo said he was traveling to Washington state. Tr. 43-46.
Gunsauls asked about Cornejo’s current plans, and Cornejo said he was driving from San Jose, California, where he had been visiting his parents. Vid. 9:10:10-9:10:35; Rep. 2. The agreement showed Cornejo had rented the car at 11:20 a.m. the day before. Ex. 5; Tr. 42. Gunsauls looked into the car and saw three empty Rock Star-brand energy drinks, an empty Arizona-brand watermelon drink can, two empty water bottles, one cell phone, and a small bag of chips on the front passenger floor board. Tr. 33, 150-52, 177, 189-91; Ex. 3; Rep. 2. He also saw a second cell phone on the front passenger seat, a GPS unit on the center console, and an Arizona-brand drink in the cup holder of the center console. Tr. 178; Rep. 2. Based on his training and experience, Gunsauls believed the beverage containers indicated long-distance travel over a short period of time. See Tr. 33-34, 175-77. He believed San Jose was approximately six hours south of the location of the traffic stop, so he
Gunsauls testified that he noticed Cor-nejo was breathing rapidly and displaying signs of nervousness. Tr. 51-54, 112, 175-77, 188-89; see Rep. 2. The video does not provide a clear view of Cornejo during the initial conversation to corroborate Gun-sauls’ account of Cornejo’s behavior. Vid. 9:09:28-9:10:49. Cornejo’s breathing is not detectable on the audio due to the amount of background noise. Id. Gunsauls told Cornejo to give him a second to check the documents and said he would probably just give Cornejo a warning. Vid. 9:10:43-9:10:49; Rep. 2. This initial conversation lasted approximately one-and-a-half minutes. Vid. 9:09:28-9:10:49.
B. Records Check and Dispatch of Deputy Hughes
Gunsauls returned to his patrol car with Cornejo’s driver’s license and rental agreement while Cornejo waited in the sedan. Id. 9:10:49-9:10:55. Gunsauls turned off his microphone. Id. 9:11:02; Tr. 27.
Gunsauls testified that at this point, he was sixty percent certain Cornejo was smuggling something, based on his nervousness and the empty beverage containers in his vehicle. Tr. 38-40, 184; see also Tr. 33-34, 51-54,175-77. This initial suspicion raised a number of safety concerns. Tr. 38, 48, 184. Gunsauls testified that he knew from his training and experience that persons engaging in smuggling sometimes travel together with an associated vehicle to help defend the substance in their car. Tr. 39-40. As a result, Gunsauls needed to both keep an eye on Cornejo and look out for other cars traveling with him. Tr. 38.
While in his patrol car, Gunsauls says he notified dispatch of the traffic stop through his radio, reviewed Cornejo’s documents, contacted the El Paso Intelligence Center (“EPIC”) to determine if there were any warrants outstanding for Cornejo, and ran the sedan’s license plate. Tr. 46-47, 145, 149, 182-83. Gunsauls ran the license plate on the computer inside his patrol car at or about 9:15 a.m. and learned within a minute that the sedan was not reported lost or stolen. Tr. 229; Ex. 15. at 4-5. The timing of the EPIC check is not clear from the record, but Gunsauls testified that it typically takes between three and five minutes to complete. Compare Tr. 183-84 (Gun-sauls did not remember the timing, but on average an EPIC check takes three to five minutes), ivith Tr. 117 (Gunsauls was on the phone with EPIC for ten minutes, until Hughes arrived). Gunsauls learned Corne-jo had no outstanding warrants. Tr. 47, 147, 149. Although Gunsauls had the capability, he did not at this time run Cornejo’s driver’s license to verify its validity. Tr. 148-49. Neither did he call Enterprise Car Rental to verify the legitimacy of the agreement. Tr. 121-22, 149. Gunsauls also did not begin filling out the warning citation. See Vid. 9:10:58-9:21:11 (reflection in window shows Gunsauls setting his clipboard down on the far right-hand side of his dashboard, where it remains untouched for approximately ten minutes); id. 9:21:38-9:21:48 (after exiting his patrol car, Gunsauls pulls out a blank warning citation, places it on top of his clipboard, checks his watch, and then begins filling out the citation). Gunsauls later wrote in his Investigative Report that he observed Cornejo fidgeting while he waited in the sedan, Tr. 2, but Cornejo’s actions as seen on the dashboard video do not convey any obvious nervousness, see Vid. 9:10:58-9:21:11.
When Gunsauls broadcast over dispatch that he was conducting a traffic stop, Dep
C. Instruction to Exit Vehicle and Pat-Down Search
Approximately eight minutes after Gun-sauls initiated the stop, Hughes arrived. Tr. 146; Ex. 15 at 1. Gunsauls and Hughes spoke briefly off camera and without the audio on, for about four minutes. Tr. 49, 119,146,160. Gunsauls was halfway seated in the front passenger seat of the patrol car and Hughes was standing outside of the car by the open, passenger side door. Tr. 119, 146. Approximately twelve minutes into the stop, Hughes approached the passenger side of the sedan and instructed Cornejo to exit. Vid. 9:21:12-9:21:25; Tr. 49; Rep. 2. Gunsauls left his patrol car and turned his microphone back on. Vid. 9:21:18-9:21:29; Tr. 119. At Hughes’ request, Cornejo consented to a pat down search, and while Hughes searched him, Gunsauls began filling out the written warning citation on his clipboard in front of his patrol car. Vid. 9:21:38-9:22:00; Tr. 49-50,120; Rep. 2. Hughes found no weapons. Vid. 9:21:38-9:22:00; Tr. 49; Rep. 2. Hughes then told Cornejo to stand next to Gunsauls in front of the patrol car. Vid. 9:21:56.
D. Completion of Written Citation and Questioning
Gunsauls spoke with Cornejo while he continued to fill out the written warning citation. Id. 9:22:04. During this time, Hughes stood guard to the side, in the background of the video or off camera. Id. 9:22:04-9:22:23. Gunsauls testified that Hughes was there to watch out for other vehicles and keep an eye on Cornejo. Tr. 56-57, 196. Later, however, Gunsauls had Hughes complete the warning citation while Gunsauls simultaneously conducted a K-9 sniff of the sedan. Vid. 9:28:23-9:30:40. Nothing in the record suggests any of the safety concerns that required Hughes to provide backup at one point lessened later in the stop.
The warning citation is a one-page document that contains fifteen lines. Ex. 7. Gunsauls testified that practical issues, such as needing to confirm the recipient’s eye color, and safety concerns, such as staying aware of surroundings, add time to filling out the citation. Tr. 171-74. During his conversation with Cornejo, Gunsauls wrote in the time and date; Cornejo’s name, mailing address, driver’s license number, age, and physical description; the vehicle’s license plate and description; the owner and insurer of the vehicle; and the vehicle code violation. Ex. 7; see Tr. 132 (describing which sections Gunsauls filled in, and which Hughes later filled in as described below). Cornejo is a 5’10‘, Hispanic male and was 200 pounds and twenty-seven years old at the time. Ex. 7; see Vid. 9:26:40 (confirming information with Cornejo). Cornejo told Gunsauls he was driving at sixty-six miles per hour on cruise control, and then decreased the cruise control to sixty-five miles per hour when he saw Gunsauls’ patrol vehicle. Vid. 9:22:08-9:22:39.
Gunsauls told Cornejo that his radar read sixty-miles per hour when he stopped Cornejo and that a mini-van had passed them on the right-hand side. Vid. 9:22:30-9:22:49; Rep. 2. As noted, the video shows the gray mini-van driving in the number two lane and at some distance in front of Cornejo when he was pulled over. Vid. 9:08:52. No other cars are visible in the video at the time of the stop.
Gunsauls told Cornejo the citation was just a warning and was not a real ticket. Vid. 9:23:08-9:23:13; Rep. 2. Cornejo asked
While he continued completing the warning citation, Gunsauls asked Cornejo more questions, such as how long he was in San Jose; where Toppenish, the city on Cornejo’s driver’s license, is located; personal demographic information requested by the warning citation; what he did for a living; and where he was going to return the car. Vid. 9:23:05-9:28:23; Rep. 3. Cor-nejo responded that he was visiting his parents in San Jose for a few days, details cars for a living, and was going to return the rental car in Washington. Vid. 9:23:05-9:28:23. Cornejo delayed slightly before responding where Toppenish is located. Vid. 9:23:44t-9:24:06. Gunsauls asked whether he was supposed to return the car in Washington or California, and he said Washington. Vid. 9:24:26-9:24:34. Gunsauls said the rental car agreement indicated “CA only.” Vid. 9:24:36-9:24:40. Cornejo said, “Well I’m supposed to, but then . I checked my (inaudible). I gotta return it over here ’cuz I don’t want to come back and, uh, you know.” Vid. 9:24:42-9:24:49. Gunsauls asked if Enterprise knew he was going to return it in Washington, and Cor-nejo said yes. Vid. 9:24:50-9:24:54. Gun-sauls said he had never seen that before. Vid. 9:24:58-9:25:04. Cornejo said it is a little more expensive, but his own car was not a good car, and he did not want it breaking down in the middle of the road. Vid. 9:25:04-9:25:12; see also Rep. 3. In the Investigative Report, Gunsauls wrote at this point he “believed [Cornejo] was lying to [him] and his story was not making sense.” Rep. 3.
Gunsauls testified that Cornejo’s nervousness appeared to increase as the stop progressed, even after he was told he would receive only a warning. Tr. 52-53; Rep. 3. During their conversation, Cornejo shifted his weight between his feet and occasionally shrugged his shoulders and bit or pursed his lips. See, e.g., Vid. 9:23:34, 9:24:23-9:24:26, 9:26:35; see Tr. 53-54; Rep. 3. -Nothing in Cornejo’s demeanor or tone of voice conveys anger, belligerence, or lack of respect. Cornejo again questioned the basis for the stop, and GunSauls told him he had been speeding and then slowed below the speed limit. Vid. 9:25:20-9:26:31. Gunsauls then asked whether there were guns or drugs or large amounts of money in the sedan, and Cornejo responded that there were not. Vid. 9:27:17-9:27:34; Rep. 3. Gunsauls requested permission to search the sedan. Vid. 9:27:34-9:27:54; Rep. 3. Cornejo initially gave his consent, but then withdrew it after Gun-sauls explained that he could say, “No.” Vid. 9:27:34-9:27:54; • Rep. 3. Gunsauls asked if everything was okay with his license, and he said yeah. Vid. 9:28:12-9:24:14. Gunsauls did not at this time run Cornejo’s driver’s license to verify its validity. Tr. 180; Ex. 15 at 1-2. Gunsauls asked if Cornejo had ever gotten a ticket before, and he said he had once, for rolling a stop sign. Vid. 9:28:14-9:28:22.
E. K-9 Sniff of Rental Car
After speaking with Cornejo for approximately six-and-a-half minutes in total, Gunsauls instructed Hughes to finish the warning citation. Vid. 9:28:23-9:28:33; Tr. 56; Rep. 3. At this point, approximately twenty minutes had passed since Cornejo was first pulled over. Gunsauls again turned off his microphone and retrieved his narcotics K-9 from the patrol car to perform a sniff of the sedan. Vid. 9:28:35-9:29:16; Tr. 56. Hughes wrote the words, “Insur.,” “(Radar 70 MPH),” “N/B 1-5 N of Fawndale,” and “J Gunsauls 8N53” on the warning citation. Ex. 7; Tr. 132. Hughes completed these entries in less than one minute, Vid. 9:28:30-9:29:16, but then held on to the citation and Cornejo’s documents
Gunsauls turned his microphone back on and asked Cornejo again whether there was anything illegal in the sedan. Vid. 9:30:41. Cornejo again said no. Vid. 9:30:46. Gunsauls asked how long he had the rental, and Cornejo responded he rented it the day before. Vid. 9:30:47-9:30:52. Gunsauls asked if any of his friends used marijuana, and he said no. Vid. 9:30:52-9:30:55. Gun-sauls told Cornejo the K-9 had alerted to the front of the car, and he was going to take a look. Vid. 9:30:56-9:31:07.
F. Search of Rental Car and Interview of Cornejo
Gunsauls again turned off his microphone and began searching the sedan. Vid. 9:31:31. He found a store receipt from Bakersfield with a time stamp of 1:01 a.m., which was inconsistent with what Cornejo had told him because Bakersfield is located a few hours south of San Jose.
Gunsauls and Hughes placed Cornejo in the back of Hughes’ patrol car, Vid. 9:32:46; Tr. 65, and continued searching the sedan, Vid. 9:34:41. At approximately 9:35 a.m., one of the deputies checked the validity of Cornejo’s driver’s license with dispatch, and it came back clear. Ex. 15 at 1-2 (“CDL: STATUS: NONE”; “STATUS: CLEAR”); Tr. 68, 127, 163-64, 167, 180, 197, 231-35. During the search, Gunsauls and Hughes discovered drug packages in the rear driver’s side passenger door. Tr. 58, 65-66. At 9:52 a.m., due to safety concerns, they dispatched a third officer to the site to drive the sedan to a storage facility to continue the search. Ex. 15 at 1, 4 (“12/13/14 09:52 SH0244 CO ONE DETAINED, REQ 1 ADDTL UNIT FOR VEH TRANSPORT TO SHOP ON.. .WONDERLAND”); Tr. 65-67; Vid. 10:14:07-10:14:53; Rep. 4.
Gunsauls later advised Cornejo of his rights and interviewed him. Rep. 5-6. Cor-nejo told Gunsauls he drove from Sunnyvale to Los Angeles to pick up the drugs and was transporting them to Salem, Oregon to repay a debt. Id. He told Gunsauls he did not know exactly what he was transporting or where it was hidden, but he knew there were drugs in the car. Id. at 5.
At 1:53 p.m., the sedan was towed from the storage facility by Enterprise Towing. Rep. 6; Ex. 15 at 2, 4 (“12/13/14 13:53 SH0251 CO TOW 97 AND TOOK POSSESSION OF VEH”).
G. Evidence Seized and Subject of Motion
Cornejo seeks to suppress the following evidence, which was obtained through the search:
(1) three bundles of suspected methamphetamine, weighing 3,028.6 grams (booked as D100);
(2) three bundles of suspected heroine, weighing 2,218 grams (booked as D101);
(3) $5,000 bulk U.S. currency (booked as C100);
(4) two LG cell phones (booked as M100);
(5) the Enterprise rental agreement and receipts (booked as M101);
(6) the GPS unit from the sedan; and
(7) any other evidence recovered from the sedan.
See ECF No. 28 at 2. Cornejo also seeks to suppress all statements he made, without clarifying a specific time frame for the statements. Id.
HL LEGAL STANDARDS FOR MOTIONS TO SUPPRESS EVIDENCE
“The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens ‘to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures— United States v. Calandra,
The Supreme Court has explained that the exclusionary rule “is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” Calandra,
With respect to the first inquiry, “searches and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well delineated exceptions.” Minnesota v. Dickerson,
One such exception is a so-called Terry stop. In Terry v. Ohio,
Here, Cornejo argues the warrantless traffic stop and search of his rental car were unlawful under the Supreme Court’s recent decision in Rodriguez,
Even if the court finds a Fourth Amendment violation occurred at the first step, the government may obtain admission of the challenged evidence by establishing that an exception to the exclusionary rule applies at the second step of the analysis. Davis,
The Court in Davis instructed that, in deciding whether to apply the exclusionary rule or the good-faith exception to that rule, courts must balance the deterrent
IV. DISCUSSION
Cornejo does not dispute that Gunsauls’ initial decision to pull him. over was lawful. ECF No. 33 at 2 n.l. As discussed above, to lawfully detain a suspect for an investigatory traffic stop, an officer must have a reasonable suspicion that a traffic violation occurred. United States v. Lopez-Soto,
In addition, Cornejo does not dispute, and the court independently finds, that once the K-9 alerted to the front of Corne-jo’s car, Gunsauls had probable cause to search the car. The Supreme Court has held that a K-9 alert can give an officer probable cause to search a vehicle when the drug-detection dog is well-trained and reliable, and other circumstances surrounding a particular alert do not undermine the case for probable cause. Florida v. Harris, — U.S. -,
Two issues, then, are presented by Cor-nejo’s motion: (1) whether the traffic stop was unlawfully prolonged under Rodriguez,
A. Lawfulness of Traffic Stop
1. Rodriguez
The court begins with an overview of the Supreme Court’s decision in Rodriguez, supra. In Rodriguez, after issuing a
An officer’s “mission” during a traffic stop typically includes routine tasks related to the enforcement of the traffic code, such as checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the car registration and proof of insurance. Rodriguez,
2. Analysis
Applying Rodriguez, the court examines whether the traffic stop was extended longer than was reasonably necessary to complete the traffic mission, and if so, whether the deputies had an independent, reasonable suspicion justifying the delay leading up to the dog sniff.
a) Whether the Duration of the Stop Was Extended
Cornejo conceded at hearing, and the court independently finds, that the first twelve minutes of the stop would have constituted a lawful seizure had Gunsauls then permitted Cornejo to leave. See ECF No. 76 at 12. During this time, Gunsauls retrieved Cornejo’s documents, checked for warrants and reports of lost or stolen vehicles, and waited for Hughes to arrive. Vid. 9:08:52-9:21:11; Tr. 46-47, 145, 149, 182-83. These tasks are connected to the traffic mission and related safety concerns
Prior to Rodriguez, in United States v. Mendez,
There is some tension between Turvin, which permits slight prolongations to ask unrelated questions, and Rodriguez, which requires independent, reasonable suspicion if a dog sniff adds any time to a traffic stop. Rodriguez did not distinguish between prolongations caused by dog sniffs and those caused by unrelated questioning. Rather, it grouped the two types of investigation together in its analysis:
In both [Illinois v. Caballes and Arizona v. Johnson], we concluded that the Fourth Amendment tolerated certain unrelated investigations that did not lengthen the roadside detention. Johnson,555 U.S. at 327-328 ,129 S.Ct. 781 (questioning); Caballes,543 U.S. at 406, 408 ,125 S.Ct. 834 (dog sniff). In Ca-balles, however, we cautioned that a traffic stop “can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a warning ticket.543 U.S. at 407 ,125 S.Ct. 834 . And we repeated that admonition in Johnson: The seizure remains lawful only “so long as [unrelated] inquiries do not measurably extend the duration of the stop.”555 U.S. at 333 ,129 S.Ct. 781 ; see also Muehler v. Mena,544 U.S. 93 , 101,125 S.Ct. 1465 ,161 L.Ed.2d 299 (2005) (because unrelated inquiries did not “exten[d] the time [petitioner] was detained!,]... no additional Fourth Amendment justification.. .was required”).
The court finds the approximately eight minutes was an unreasonably long duration for Gunsauls and Hughes to complete the simple, one-page, written warning citation. Gunsauls testified that safety concerns, such as the need to stay aware of the surroundings, typically add time to filling out a citation, Tr. 171-74, but in this case, Hughes stood by and provided back up while Gunsauls filled out most of the warning citation. Considering the totality of the record, it appears Gunsauls consciously drew out filling out the entries in the citation in order to fish for information. He then further delayed the task by handing the citation off to Hughes when there were only two entries remaining, one of which was Gunsauls’ own name and identification number. The video establishes that the dog sniff added time to the stop, because it shows that after Hughes completed the citation, he retained the citation and Cornejo’s documents for another minute- and-a-half while he waited for Gunsauls to finish walking his dog around the car. Vid. 9:29:16-9:30:40. Rodriguez does not authorize questioning a person or performing a K-9 sniff while purporting to fill out a ticket or citation; it held a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission of issuing a ticket for the violation.”
In Rodriguez, the Supreme Court explained, “The critical question,. .is not whether the dog sniff occurs before or after the officer issues a ticket,., .but whether conducting the sniff ‘prolongs’— ie., adds time to — ‘the stop.’ ”
b) Whether the Deputies Had an Independent, Reasonable Suspicion
Because the duration of the stop was unnecessarily extended, the seizure was unlawful unless the deputies had an independent, reasonable suspicion of criminal activity. Rodriguez,
As stated above, reasonable suspicion requires that an officer have a “particularized and objective basis” for suspecting the person has committed or is about to commit a crime. Arvizu,
When reviewing an officer’s reasonable suspicion, the court considers the totality of the circumstances. United States v. Valdes-Vega,
The government identifies the'following initial “warning signs” of criminal activity: (1) Cornejo was traveling on the northbound side of 1-5, which is a route commonly used to transport drugs from Southern California to Oregon and Washington; (2) when Gunsauls initially approached Cornejo, he was breathing more rapidly and appeared more nervous than the average driver; and (3) Gunsauls noticed three Rock Star energy drinks, two Arizona iced tea drinks, and empty water bottles in the front passenger floor area and center cup holder, and “found it strange or suspicious that somebody would drink, that much liquid in [the] six hours [it takes to travel from San Jose to the location of the stop], especially energy drinks.” Tr. 33. ECF No. 77 at 8. The government contends the following indicators further raised Gun-sauls’ concerns as the stop progressed: (1) Cornejo continued to argue with Gunsauls about his speed, even though Gunsauls told him several times that he only intended to give Cornejo a warning; (2) Cornejo’s nervousness appeared to increase over time; (3) Cornejo delayed slightly before answering where Toppenish is located; and (4) Cornejo could not explain why the rental agreement said “California only” when he intended to return the car in Washington.
The result of a reasonable suspicion analysis “depends in part on whether the district court finds the officers’ testimony concerning the relevant facts credible, and in part on whether the information [available to the officers] provided reasonable suspicion justifying the... delay.” Evans,
Gunsauls’ selective muting of the audio recording raises additional questions. Gun-sauls testified that he turned off his microphone for “officer safety reasons,” Tr. 28, and to withhold law enforcement’s tactics from criminals, Tr. 164-66, 179-80. This explanation does not comport with muting the audio during the K-9 sniff or search of the sedan. Vid. 9:28:35-9:30:41. The selective muting here could have omitted Hughes’ questioning unrelated to the traffic mission, sounds undermining the reliability of the K-9 alert, or information being volunteered by the defendant that dispels suspicions.
Even accepting Gunsauls’ account in full, the evidence does not establish a reasonable suspicion of drug-related activity pri- or to Gunsauls’ unrelated questioning or the K-9 sniff. Traveling on the northbound side of 1-6 is the type of overbroad categorization the court rejected in Montero-Camargo,
Other courts have given varying weight to the presence of energy drinks or fast food wrappers, which are consistent with innocent travel but could also indicate long-distance, hurried travel, depending on the presence of other circumstances that can support reasonable suspicion. Compare United States v. Beck,
Here, the empty beverage containers and handwritten rental agreement are wholly consistent with innocent travel, and under the totality of the circumstances, do not raise reasonable suspicion of criminal activity. See, e.g., Beck,
With respect to the rental agreement, an Enterprise employee testified that the company’s standard operating procedure when the computer system goes down is to
Any gaps or inconsistencies regarding Cornejo’s travel plans and the phrase “CA only” on the rental agreement were not so significant as to arouse genuine suspicion. See United States v. Simpson,
In sum, Cornejo appeared somewhat nervous, had empty beverage containers in his car, had a pre-printed rental agreement form with handwritten entries, and did not fully explain the “CA only” note to Gunsauls’ satisfaction. He provided a valid driver’s license, had no outstanding warrants, did not have any weapons on him, did not engage in any threatening behavior, and his rental car was not reported lost or stolen. The problem is not just that Gunsauls relied on an overly broad profile in forming his suspicion, but that he also did not promptly investigate to confirm or dispel his suspicions. Gun-sauls was “sixty percent” certain Cornejo was smuggling drugs when he first returned to his patrol car, Tr. 38-40, but he did not investigate the validity of the rental agreement, inquire about the empty beverage containers, or conduct the K-9 sniff immediately upon Hughes’ arrival. Tr. 38 — 40. Considering the factors identified by the government in totality, and having carefully reviewed Gunsauls’ narrative and the dashboard video, the court concludes the prolongations were not justified. While it would be tempting when officers’ conduct uncovers contraband, such as a substantial quantity of drugs, to allow the end to justify the means, the court “must resist such temptation.” United States v. Richardson,
B. Good-Faith Exception to Exclusionary Rule
Having found the deputies violated Cornejo’s Fourth Amendment rights, the court next determines whether suppressing the evidence seized as a result is the appropriate remedy. See Davis,
In Caballes, one officer conducted a K-9 sniff of the defendant’s vehicle during a legitimate traffic stop while another officer wrote out a warning ticket.
But the good-faith exception does not apply here, because Caballes did not permit, much less “specifically authorize,” the conduct of Gunsauls and Hughes. See Thomas,
This case also is distinguishable from the decision on remand in United States v. Rodriguez, supra, in which the Eighth Circuit applied the good-faith exception.
The good-faith exception announced in Davis does not apply to the circumstances of this case. Suppressing the challenged evidence serves the exclusionary rule’s deterrent purpose, because it will have the effect of discouraging officers from delaying a traffic stop to fish for evidence of criminal activity based on a hunch or a broadly generalized profile. See Brown v. Illinois,
V. CONCLUSION
For the foregoing reasons, defendant’s motion to suppress physical evidence seized and statements made on December 13, 2014 following a traffic stop is GRANTED IN PART, as follows. The court suppresses the following evidence:
(1) three bundles of suspected methamphetamine, weighing 3,028.6 grams (booked as D100);
(2) three bundles of suspected heroine, weighing 2,218 grams (booked as D101);
(3) $5,000 bulk U.S. currency (booked as C100);
(4) two LG cell phones (booked as M100);
(5) the Enterprise rental agreement and receipts (booked as M101);
(6) the GPS unit from the sedan; and
(7) any other evidence recovered from the sedan.
See Wong Sun,
IT IS SO ORDERED.
Notes
. Section 841 states, "[I]t shall be unlawful for any person knowingly or intentionally... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance....” 21 U.S.C. § 841(a)(1).
. The time stamps cited in this order are taken from the closed captioning on the government’s CD exhibit of the video, Ex. 1. Cornejo does not contest the accuracy of these time stamps.
. In his post-hearing brief, defendant claims Sowder's testimony regarding the dispatch logs establishes that a second law enforcement agency, the Shasta Interagency Narcotics Task Force ("SINTF”), first contacted dispatch and ran Cornejo's license plate at 9:15 a.m., and that Gunsauls was not dispatched until 9:18 a.m. ECF No. 76 at 13 n.l. This contention is not supported by Sowder’s testimony or the other evidence before the court. The video taken from Gunsauls’ dashboard shows Gunsauls initiating the traffic stop at 9:08:52 a.m. Although the parties have not fully explained the information in the dispatch logs, and the logs do not identify the officers’ names, Tr. 228, it appears most likely from the dashboard video and Gunsauls' testimony that Gunsauls was the officer who first contacted dispatch and ran Cornejo’s license plate at 9:15 a.m., and then Deputy Ray Hughes was the officer who was dispatched at 9:18 a.m. This conclusion is further supported by Gunsauls' testimony that he supplements SINTF. Tr. 86, 228.
. Section 22349 provides, in pertinent part: ".. .[N]o person may drive a vehicle upon a highway at a speed greater than 65 miles per hour.” Cal. Veh. Code § 22349(a).
. Section 22400 provides, in pertinent part: "No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic
. The court takes judicial notice of the distance between Bakersfield and San Jose, approximately 241 miles if driving on 1-5, under Federal Rule of Evidence 201.
. This rule has also been referred to as the "faith-m-caselaw” exception to the exclusionary rule. United States v. Thomas,