Free Motion to Suppress Evidence - District Court of California - California

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GARY P. BURCHAM California Bar No. 190780 2 964 Fifth Avenue; Suite 300 San Diego, CA 92101 3 Telephone: (619) 699-5930
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Attorney for Jose Alberto Villasenor

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE MARILYN L. HUFF) UNITED STATES OF AMERICA, Plaintiff, v. JOSE ALBERTO VILLASENOR, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 08CR2205-MLH Date: September 22, 2008 Time: 2:00 p.m. NOTICE OF MOTIONS AND MOTIONS TO: SUPPRESS EVIDENCE

TO:

KAREN P. HEWITT, UNITED STATES ATTORNEY, and LUELLA CALDITO, ASSISTANT UNITED STATES ATTORNEY PLEASE TAKE NOTICE that on Monday, September 22, 2008, 2:00

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p.m., or as soon thereafter as counsel may be heard, the defendant, Jose
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Alberto Villasenor, by and through his attorney, Gary P. Burcham, will
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ask this Court to enter an order granting the motion listed below.
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MOTIONS Jose Alberto Villasenor, the defendant in this case, by and through his attorney, Gary P. Burcham, pursuant to the Amendments to the United States Constitution, Fed. R. Crim. P., and all other applicable statutes, case law and local rules, hereby moves this Court for an order: Suppressing Evidence These motions are based upon the instant motions and notice of motions, the attached statement of facts and memorandum of points and authorities, and any and all other materials that may come to this Court's attention at the time of the hearing on these motions. Respectfully submitted,

Dated: September 2, 2008

/s/ Gary P. Burcham GARY P. BURCHAM Attorney for Jose Alberto Villasenor

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE ALBERTO VILLASENOR, ) ) ) ) ) ) ) ) ) U.S.D.C. No. 08CR2205-MLH CERTIFICATE OF SERVICE

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Defendant-Appellant.
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IT IS HEREBY CERTIFIED THAT: I, GARY P. BURCHAM, am a citizen of the United States and am at least eighteen years of age. My business address is 964 Fifth Avenue,

Suite 300, San Diego, CA 92101. I am not a party to the above-entitled action. I have caused

service of Defendant's Notice of Motion and Motion to Suppress Evidence on the following party or parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies him/her. Luella Caldito, Esq. Assistant United States Attorney Border Crimes Unit 880 Front Street San Diego, CA 92101 I declare under penalty of perjury that the foregoing is true and

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correct.
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Executed on September 2, 2008.
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/s/ Gary P. Burcham GARY P. BURCHAM

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GARY P. BURCHAM California Bar No. 190780 2 964 Fifth Avenue; Suite 300 San Diego, CA 92101 3 Telephone: (619) 699-5930
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Attorney for Jose Alberto Villasenor

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE MARILYN L. HUFF) UNITED STATES OF AMERICA, Plaintiff, v. JOSE ALBERTO VILLASENOR, Defendant. ) ) ) ) ) ) ) ) ) ) Case No. 08CR2205-MLH STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS

INTRODUCTION Jose Alberto Villasenor has been charged by indictment with importation of cocaine, and possession of cocaine with the intent to distribute. These charges arise from a traffic stop made on June 18,

2008, in El Centro, California, which led to the discovery of multiple packages of cocaine hidden in a vehicle driven by Mr. Villasenor. Pursuant to the Fourth Amendment of the U.S. Constitution, Mr. Villasenor now moves to suppress all evidence seized as a result of the illegal stop, including any "fruits" of this unlawful stop. Mr.

Villasenor further requests an evidentiary hearing on this issue.

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STATEMENT OF FACTS A. Surveillance by ICE Agents The sequence of events in this unusual case began just before

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9:00 a.m. on June 18, 2008, when Mr. Villasenor entered the United States
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from Mexico through the Calexico Port of Entry driving a white 2002 PT
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Cruiser. Villasenor was the lone occupant of the car. At the border, Mr.
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Villasenor was sent to secondary inspection because the vehicle's license
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plate generated a computer referral.1
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In vehicle secondary, a Canine

Enforcement Officer (CEO) screened the vehicle with a Narcotics Detector Dog (NDD).
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The NDD did not alert to the vehicle.

After CBP Officers

conducted a further inspection of the vehicle with negative results, Mr. Villasenor was released from secondary and drove northbound onto Imperial
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Avenue in Calexico, CA.
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While Mr. Villasenor waited at a red light at the intersection of 2nd Street and Imperial, Immigration and Customs Enforcement (ICE) Special Agents Torregrosa and Vensk observed the white Chrysler PT Cruiser that Mr. Villasenor was driving.2 SA Torregrosa believed this vehicle was the same vehicle that had been referenced during his post-arrest contact with Daniel Rodriguez the day before. Mr. Rodriguez told the agents that Apparently, following his arrest, if he had crossed the border

successfully, he was supposed to meet someone driving a PT Cruiser at the Pep Boys in Calexico to deliver his vehicle. Mr. Rodriguez apparently had a photo of this PT Cruiser on his cell phone which he showed the agents,

The registered owner of the vehicle was Daniel Ivan Rodriguez. Mr. Rodriguez was arrested the prior day after he drove a car containing marijuana into the United States through the Calexico POE. The location of the vehicle indicated that it had just exited the port of entry and could not have come from another location. 2 08CR2205-H
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and agents were able to make out the license number from this photo.

The

vehicle driven by Mr. Villasenor was alleged to be the same vehicle depicted in this photo. Agents Torregrosa and Vensk then began following the vehicle. Mr. Villasenor first drove to a Fill-Co service station a few blocks away, exited the car, and spoke on his cell phone. Mr. Villasenor then got back inside the vehicle and continued to drive north on Imperial. Mr.

Villasenor then drove to an AM/PM service station, where he parked at the gas pumps and walked around the vehicle while he talked on the telephone. After leaving the AM/PM station, Mr. Villasenor drove to the El Centro DMV office on Imperial Avenue. the Calexico POE. The DMV office is approximately 13 miles from

Villasenor parked the car in the DMV parking lot, and

went inside the DMV office. B. Traffic Stop At 10:01 a.m., Agent Torregrosa called the El Centro Police Department (ECPD) and requested that ECPD conduct a traffic stop of the vehicle Mr. Villasenor was driving. After Mr. Villasenor left the DMV

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office and was driving southbound on Imperial Avenue, El Centro Police Officer Seaman initiated a traffic stop at the intersection of South Imperial Avenue and West Aurora Drive.3 The location of the stop was just over a mile south of the DMV. Seaman's stated basis for the stop was that there was a rosary that was hanging from the rear-view mirror of the vehicle Villasenor was driving, something Seaman believed obstructed Mr. Villasenor's view in violation of Cal. Vehicle Code § 26708(a)(2). There is conflicting information in the discovery as to when

The government ROI says that Officer Ramirez stopped the vehicle. This is not true; the original stop was made by Officer Seaman. 3 08CR2205-H

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this stop occurred.

While the government ROI states that the stop

occurred around 10:25 a.m., the ticket that was written for a different violation lists 10:14 a.m. as the time the ticket was issued. [Ex. "G"].

Given that some amount of time obviously passed between the initial stop and the time that the ticket was written, the time of the stop likely was sometime between 10:00 and 10:10 a.m.. Because Officer Seaman did not speak Spanish, Seaman turned the stop over to Spanish-speaking Officer Ramirez who subsequently arrived at the scene. Officer Ramirez requested Mr. Villasenor's driver's license, Mr. Villasenor

the registration of the car, and proof of insurance.

provided the driver's license and registration, but said the car was not his and that he did not have insurance documents to provide. Officer

Ramirez wrote Mr. Villasenor a citation for failing to have proof of insurance in the vehicle. He did not write a citation for anything

related to the rosary hanging from the rear-view mirror. Agent Torregrosa also called a CEO to conduct a search of the

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vehicle.
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At approximately 10:55 a.m., more than 40 minutes after the

ticket had been written for the insurance violation, CEO Barela arrived with his NDD "Astrix."
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CEO Barela screened the vehicle with his NDD and

the dog alerted to the vehicle. CEO Barela conducted a further inspection and discovered a non-factory compartment that contained packages of
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cocaine.
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At approximately 11:00 A.M., Mr. Villasenor was placed under arrest. SA Worgen and SA Morquecho conducted further inspection of the A total of 15 packages of cocaine was

PT Cruiser at the Calexico POE.

discovered concealed in the vehicle. //

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C.

Interview with Mr. Villasenor At approximately allegedly 5:00 P.M., Agent him Worgen interviewed warnings Mr. and

Villasenor

after

providing

his

Miranda

obtaining a waiver of his rights. drugs were hidden in the vehicle.

Mr. Villasenor stated he did not know Villasenor stated that he had the PT He had driven the

Cruiser on and off for approximately three weeks.

vehicle across the border three or four times, and was told to drive it so as to become familiar with it. Mr. Villasenor stated a man named Javier asked him to drive the

10

PT
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Cruiser

into

the

United

States

and

register

it

in

his

name.

Furthermore, he stated he was not receiving any money for driving the PT Cruiser into the United States.
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ARGUMENT

ALL EVIDENCE SEIZED AS A RESULT OF THE VEHICLE STOP MUST BE SUPPRESSED BECAUSE THERE WAS NOT A VALID BASIS FOR THE INITIAL STOP OF THE VEHICLE 3 AND, EVEN IF THE INITIAL STOP WAS PERMISSIBLE, THE EXECUTION OF THE STOP WAS VIOLATIVE OF THE FOURTH AMENDMENT 4
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The Fourth Amendment safeguards the people in their person, houses, papers and effects against "unreasonable searches and seizures." U.S. Const., Amend. IV. Traffic stops are seizures under the Fourth

Amendment, therefore officers must have at least reasonable suspicion of criminal misconduct before detaining a driver. U.S. 648, 653 (1979). articulable facts Delaware v. Prouse, 440

"Reasonable suspicion is formed by specific, together with objective and reasonable

which,

inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity." 205 F.3d. 1101, 1105 (9th Cir. 2000). United States v. Lopez-Soto,

An officer is entitled to rely on

his training and experience in drawing inferences from the facts he observes; however, those inferences must also "be grounded on objective facts and be capable of rational explanation." United States v. Garcia-

Camacho, 53 F.3d 244, 246 (9th Cir. 1995); see also United States v. Sokolow, 490 U.S. 1, 7 (1989) ("The Fourth Amendment requires some minimal level of objective justification for making the stop."). A. BECAUSE THE POLICE OFFICER WHO STOPPED VILLASENOR HAD NO REASONABLE BASIS TO BELIEVE THAT THE ROSARY HANGING FROM THE VEHICLE'S REAR-VIEW MIRROR OBSTRUCTED VILLASENOR'S VIEW, THE INITIAL STOP OF VILLASENOR'S VEHICLE WAS INVALID "A pretextual stop occurs when the police use a legal

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justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop." United

States v. Guzman, 864 F.2d 1512, 1515 (9th Cir. 1988). In Whren v. United 6 08CR2205-H

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States, 517 U.S. 806, 808-09 (1996), the Supreme Court held that such a stop was reasonable under the Fourth Amendment where officers had probable cause to believe that the petitioner violated the traffic code, even if the ultimate charge was not related to the traffic stop. See also United

States v. Willis, 431 F.3d 709, 715 (9th Cir. 2005)("Whren stands for the proposition that if the officers have probable cause to believe that a traffic violation occurred, the officers may conduct a traffic stop even if the stop serves some other purpose."). "Although Whren permits an officer to conduct a pretextual traffic stop as a means to uncover other criminal activity, the officer must reasonably suspect a traffic law violation." 244 F.3d 736, 738 (9th Cir. 2001). United States v. King,

"Courts should inquire whether a

reasonable officer `would have' made the stop anyway, apart from his suspicions about other more serious criminal activity." Cannon, 29 F.3d 472, 476 (9th Cir. 2006). United States v. may make an

Police

investigative traffic stop based on "reasonable suspicion." United States v. Ibarra, 345 F.3d 711, 713 (9th Cir. 2003). As depicted in Exhibits A-D, a thin rosary was hanging from the

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rearview mirror of the vehicle being driven by Villasenor.
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This rosary

was a thin necklace-type item that hung approximately 8-10 inches from the base of the rear-view mirror, with a small cross attached to the bottom.
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As set forth earlier, Officer Seaman pulled Villasenor over for a
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violation of Cal. Vehicle Code § 26708(a)(2) based on his conclusion that
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this rosary obstructed the view of Villasenor.
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This section provides:

No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle which obstructs or reduces the driver's clear view through the windshield or side windows. Cal. Vehicle Code § 26708(a)(2). 7 08CR2205-H

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Villasenor asserts at the outset that Officer Seaman lacked an objective, reasonable basis for concluding that the rosary was obstructing Villasenor's view through the front windshield. The evidence in this case is comparable, if not even weaker, than the evidence in People v. White, 107 Cal. App.4th 636 (2003), in which the California Court of Appeal found that an officer did not have an objectively reasonable basis for his belief that an air freshener hanging from an automobile rear-view mirror violated Cal. Veh. Code § 26708(a)(2). In White, the officer stopped a vehicle because a tree-shaped air freshener was hanging from the rearview mirror. [See Ex. "E"].4 The

government claimed that the officer had a reasonable suspicion that the air freshener violated section 26708(a)(2). Id. at 640. The California

Court of Appeal found that it was not objectively reasonable for the officer to believe that the air freshener hanging from the rearview mirror "obstructed or reduced [the driver's] clear view through the windshield so as to constitute a violation of the Vehicle Code." White, 107 Cal.

App. 4th at 640. In support of its conclusion, the court first noted that "[b]y its plain language, Vehicle Code section 26708, subdivision (a)(2) prohibits driving a vehicle with an object displayed that obstructs or reduces the driver's clear view through the windshield or side windows. The statute does not flatly prohibit hanging any object on a rear view mirror." Id. See also King, 244 F.3d at 740 (9th Cir. 2001) (in

addressing Alaska statute, "we conclude that the ordinance's use of `upon' the front windshield requires placement on or in direct contact with the windshield. An object hanging elsewhere, even if in close proximity, does

Exhibit "E" is a photo of the tree-shaped air-freshener that is commonly available at convenience and auto parts stores that likely was at issue in White. 8 08CR2205-H

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not trigger a violation of the ordinance").5 The court also noted several relevant facts that supported White's suppression argument: First, the officer himself "never testified that he believed the air freshener obstructed the driver's view." 107 Cal. App. 4th at 640. White,

Second, "the officer never testified to other

specific and articulable facts, like hesitant or erratic driving, that might suggest the driver's clear view was impeded." Id. Third, an expert testified that the air freshener would not have obstructed the driver's vision, and the defendant confirmed that it had not obstructed his vision. Last, even the trial court acknowledged "the ubiquitous nature of these air fresheners." Id.

The facts and analysis from White are similar to the case at
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bar.
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First, like the officer in White, Officer Seaman did not report

"specific and articulable facts, like hesitant or erratic driving, that might suggest the driver's clear view was impeded."
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White, 107 Cal. App.

4th at 640.
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The officer acknowledged that the vehicle was in its proper The officer also did not

lane, and that it was not swerving or speeding.
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state that he saw Mr. Villasenor peering around the rosary, or that there was any other problem with his driving that related to the hanging
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necklace.
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Second, the photographs of the rosary shows that its small and slender size simply could not have been reasonably interpreted to obstruct Villasenor's view sufficiently to implicate section 26708(a)(2). Not only

The California legislature has not prohibited the hanging of objects from a vehicle's rearview mirror. Contrast Illinois statute 625 Ill. Comp. Stat. 5/12-503(c)(2004), which states that "No person shall drive a motor vehicle with any objects placed or suspended between the driver and the front windshield, rear window, side wings or side windows immediately adjacent to each side of the driver which materially obstructs the driver's view". 9 08CR2205-H

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do the photos of the rosary compel this conclusion, the tree-shaped air freshener in White that the California Court of Appeal found did not provide a reasonable basis for the stop had a larger surface area than this rosary. [See Ex. "E"]. But see People v. Colbert, 157 Cal. App. 4th 1068, 1073 (2007)(affirming denial of motion to suppress where, in case also involving air freshener, officer testified that object was large enough to obstruct view through the front windshield, and that he had personally experienced that a similar object could obstruct view of a vehicle or pedestrian). Nor was there any evidence to suggest that the

rosary had any sort of reflective quality which might have figured in the officer's determination. What was in the vehicle was a thin necklace with a tiny cross suspended at the bottom, an item which could not, under any reasonable consideration, violate the statute. The fact that Mr.

Villasenor was not ticketed for the rosary further exemplifies this. Finally, a necklace hanging from a rearview mirror is, much like the air freshener in White, an item that is commonly displayed in a vehicle. As explained in White, the mere presence of an object hanging

from a rearview mirror does not by itself violate section 26708(a)(2). Id. at 642. Just as the air freshener is a commonly-employed item that

is understood not to violate section 26708, likewise the small rosary in this case was not the sort of item that could have reasonably been interpreted to violate this code section. The attempt by Officer Seaman to articulate a basis for the stop

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on the basis of Mr. Villasenor's small stature likewise falls short.
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Officer Seaman wrote that "[b]ased on how low Mr. Villasenor was seated
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in the vehicle, I felt this rosary was placed in a manner that obstructed
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or reduced Mr. Villasenor's clear view through the windshield."
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This

makes no sense.

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rosary had the same effect with regard to the view out of the windshield of the car. If a distinction had to be drawn, one could actually say that by being a short man and sitting lower in the vehicle, the rosary which hung from the top of the windshield actually was less likely to cross into Villasenor's field of vision, as opposed to if Villasenor was seated high in the seat and was looking through the upper portion of the windshield. Either way, this was an objectively unreasonable basis that does not provide any support for the stop. In sum, unless an officer can clearly point, in advance, to the specific and reasonable observations showing that a driver's view is reduced or obstructed by an item, an officer in not justified in stopping a vehicle merely because an object is dangling from the rearview mirror. Because there was no such objectively reasonable basis to support this pretextual stop based on the rosary, all evidence obtained as a result of Officer Seaman's illegal stop must be suppressed. B. THE CONTINUED DETENTION OF MR. VILLASENOR FOLLOWING THE ISSUANCE OF THE CITATION VIOLATED THE FOURTH AMENDMENT Even if this Court believes that the initial stop of the vehicle was a valid pretextual stop, the continued detention of Mr. Villasenor following the issuance of the citation violated the Fourth Amendment. "It is clear that a `seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.'" United States v. Patterson, 472 F.3d 767, 776 (9th Cir.

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2006)(quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). While questions that do not appreciably extend the duration of a traffic stop are reasonable, see United States v. Stewart, 473 F.3d 1265, 1269 (10th Cir. 2007), an unreasonably long detention violates the Constitution. See 11 08CR2205-H

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United States v. Childs, 277 F.3d 947, 953-54 (7th Cir. 2002)(en banc)("It is not necessary to determine whether the officers' conduct added a minute or so to the minimum time in which these steps could have been

accomplished.

What the Constitution requires is that the entire process

remain reasonable."). The purpose of the pretextual stop was effectuated when Officer Ramirez obtained Villasenor's driver's license and vehicle registration, and thereafter issued him a ticket at 10:14 a.m. for not having proof of insurance in the vehicle. Any suspicion as to whether Villasenor had

permission to drive, and the issue relating to the insurance, was addressed fully once Mr. Villasenor produced the license and registration and once Officer Ramirez issued the insurance citation minutes after the stop. Instead of releasing Mr. Villasenor at that point, something

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which Mr. Villasenor specifically requested that the officer do, [Decl.
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Of Villasenor at Ex. "F"], the officer told Mr. Villasenor that he had to
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wait and could not leave. The delay was not one of mere minutes as courts
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have approved, but rather, was a delay of approximately 40 minutes while
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everyone waited for a drug dog to arrive and sniff the car.
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The

extraordinary length of this detention, coupled with the facts that: (1) this vehicle had been searched in this exact same manner an hour earlier;
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and (2) had been under constant surveillance the entire time since its
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exit from the port of entry, requires suppression of all evidence obtained
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as a result of the stop.
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Here, the arresting officer lacked a reasonable and articulable suspicion to prolong the detention of Villasenor beyond what was required to address the vehicle code issues that provided the basis for the stop. At the time Officer Ramirez told Mr. Villasenor that he could not leave 12 08CR2205-H

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and the stop was prolonged for 40 minutes, the government knew the following with regard to its investigation: (1) Villasenor was driving a vehicle that, according to Daniel Martinez, was supposed to meet a load car in Calexico the day before; (2) the R/O of the PT Cruiser was Daniel Martinez who had been arrested the previous day; (3) Villasenor had just crossed the border driving this vehicle; and (4) Villasenor had driven as described above (to two gas stations and then to the DMV office) since crossing the border, and was now heading in a direction back to the border. What the government also knew, however, was that this vehicle had just been extensively searched, including a dog search, in secondary at the Calexico POE, and that agents had followed this car continuously following its entry into the United States. When all of these facts are

considered together, the extension of the vehicle stop for 40 minutes beyond what was required to handle the vehicle code infraction violated the Fourth Amendment. Starting with whether the government had a reasonable suspicion

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sufficient to detain Mr. Villasenor for this lengthy period in this case,
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it did not.
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Perhaps the best evidence that the government had no such

suspicion was the fact that instead of stopping the vehicle on the basis of their drug investigation, agents instead called the El Centro P.D. to
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stop the vehicle for a traffic violation.
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Moreover, there was nothing

that occurred during the stop that provided any further suspicion that the car contained drugs.
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It was a routine traffic stop, Mr. Villasenor fully

complied with the officers, and there were no indications that he was nervous or did anything else that might have increased the level of
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suspicion. It started as a mere traffic stop, and nothing changed the
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nature of the stop during the encounter. 13

See United States v. Mesa, 62 08CR2205-H

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F.3d 159, 162 (6th Cir. 1995) ("Once the purposes of the initial traffic stop were completed, there is no doubt that the officer could not further detain the vehicle or its occupants unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify further detention."). Aside from the manner in which this vehicle was stopped, there are several other points that demonstrate that no reasonable suspicion existed to hold the vehicle. First, and most importantly, this vehicle

had just been intensively searched in secondary, including having a NDD scan the vehicle. "Probable cause may be based on collective knowledge

of all of the officers involved in the investigation and all of the reasonable inferences that may be drawn therefrom." Hoyos, 892 F.2d 1387, 1392 (9th Cir. 1989). United States v.

Here, the collective

knowledge of the agents included the fact that just prior to 9:00 in the morning, Mr. Villasenor drove this car to the border, it was referred to secondary because of a computer-generated referral (likely because of the incident the day before or because of the R/O's name), and it was intensively searched at secondary, including a NDD screening, with negative results for drugs. Nothing cuts more against a reasonable

suspicion that a car may contain drugs than the fact that an hour earlier and without any break in surveillance, the vehicle was intensively searched, including by a narcotic detector dog, at a port of entry and no drugs were detected. Second, it is important to note that the information that was

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provided by Daniel Martinez the prior day indicated not that the PT
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Cruiser was a drug crossing vehicle, but rather, that it was a vehicle
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that was going to meet a drug-laden vehicle that crossed the border.
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States, the government might have a stronger argument.

Even though the

vehicle was registered in Daniel Martinez's name, there was no indication that this vehicle had ever been used, or ever would be used, to smuggle drugs. This is an important distinction. Third, the manner of Mr. Villasenor's driving after crossing the border contradicts any suspicion that this car contained drugs. If this

was a car laden with a million dollar cargo of cocaine, there is no way that the vehicle would have been driven to a government building in El Centro where it then was parked and left unattended. If there is one

thing that is consistently argued by prosecutors in border-bust cases, it is that the drugs are closely guarded and monitored once they cross the border. For this reason, an individual who drives a vehicle to a

government office, and then leaves it in the parking lot unattended, is very much unlike a normal border drug trafficker. Thus, the manner in

which Mr. Villasenor drove following his entry indicated not that this was a car that contained drugs, but rather, that it was a vehicle that did not contain valuable narcotics. Given the non-existence of any reasonable suspicion that this

19

car contained drugs, the length of the detention clearly was violative of
20

the Fourth Amendment.
21 22

A few minutes is the normal amount of time that

police officers need to run computer checks, write tickets, and end the stop.
23 24

See Berkemer v. McCarty, 468 U.S. 420, 437 (1980) ("[D]etention of

a motorist pursuant to a traffic stop is presumptively temporary and brief.
25 26

The vast majority of roadside detentions should last only a few

minutes."); Delaware v. Prouse, 440 U.S. 648, 653 (1979) (a traffic stop "is
27 28

quite

brief");

United

States

v.

Sharpe,

470

U.S.

675,

685

(1985)(quoting United States v. Place, 462 U.S. 696, 703 (1983))( Police must "'diligently pursue their investigation'" and may not prolong a 15 08CR2205-H

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1 2 3 4 5 6 7 8 9 10 11 12 13

detention

unnecessarily).

The

approximately

40

minute

detention

of

Villasenor after the ticket was written and the purposes of the traffic stop had been completed well exceeded this baseline. While a very brief

detention of a minute or two to ask a few questions likely would have been permissible under the current state of the law, the 40 minute wait for the drug dog to arrive was not even close. The continued detention of

Villasenor violated his Fourth Amendment rights and the suppression of all evidence obtained as a result of this stop must be ordered. States v. Twilley, 222 F.3d 1092, 1095 (9th Cir. See United

2000)(if initial stop

of vehicle is invalid, all evidence seized as a result of the stop is subject to suppression as fruit of the poisonous tree). III. CONCLUSION

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

For the foregoing reasons, it is respectfully requested that the Court grant the above motion to suppress. Respectfully submitted,

Dated: September 2, 2008

/s/ Gary P. Burcham GARY P. BURCHAM Attorney for Jose Alberto Villasenor

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