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United States v. Mercado-Gracia

United States District Court, D. New Mexico

May 21, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
AARON MERCADO-GRACIA, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant Aaron Mercado-Gracia's Motion to Suppress Evidence (ECF No. 47). The Court held a hearing on the motion on November 7, 2017, and on May 1, 2018. The Court, having considered the motion, briefs, evidence, applicable law, and otherwise being fully advised, concludes that the motion to suppress should be denied.

         I. FACTUAL BACKGROUND

         New Mexico State Police (“NMSP”) Officer Ronald Wood has been an officer for 11 years and a canine (“K-9”) officer for four-and-a-half years. Nov. 7, 2017 Hr'g Tr. 5:4-6:3. Although Ronald Wood has been promoted to Sergeant since the incident, at the time he was a Senior Patrolman, so the Court will refer to him herein as Officer Wood. Id. In September 2013, Officer Wood received K-9 training from the United States Custom and Border Patrol (“CBP”) K-9 School where he was certified as a handler. Id. 6:24-7:6. In 2015 and 2016, Officer Wood received additional training in advanced patrol techniques, advanced K-9 handling, K-9 instruction, and a K-9 detection instructor course. See Id. 7:6-11:10.

         For the last four-and-a-half years, Officer Wood has been assigned a Belgian Malinois named Arras who was certified in drug detection beginning in September 2013 by three agencies: CBP, NMSP, and the California Narcotics Canine Association (“CNCA”). See Id. 11:18-19:15; May 1, 2018 Hr'g Tr. 189:24-190:2. Arras was certified each year thereafter, and at the time of the incident in question, Arras held NMSP and CNCA certifications for the detection of the odors of marijuana, cocaine, heroin and methamphetamines. See Nov. 7, 2017 Hr'g Tr. 11:18-19:15; May 1, 2018 Hr'g Tr. 184:20-188:10; Gov.'s Ex. 2, 3A-D, 4A-D. The certification process is designed to simulate real world scenarios. Nov. 7, 2017 Hr'g Tr. 14:13-16:8.

         Officer Wood generally had Arras with him for his approximately 8-12 hours per shift and Arras returned home with Officer Wood, so Officer Wood was very familiar with Arras's demeanor and behavior. See Id. 13:6-14:12. Officer Wood trained with Arras 16 hours a month in addition to regular obedience training. Id. In his time as a K-9 officer, he has conducted approximately 500 stops in which he seized some type of contraband, with approximately 150 of those stops resulting in a seizure of narcotics in amounts not for personal use. Id. 6:4-19.

         An alert is a behavioral change that a drug detection dog exhibits when his nose gets into the target odor he is trained to detect, which may include a change in search direction, a change in search speed, a change in body posture, and/or a change in breathing pattern. See May 1, 2018 Hr'g Tr. 181:10-25, 183:15-184:19. When a dog detects an odor for which he is trained, his respiration typically becomes deeper, his mouth will close to put more air through the olfactory nose system, and his sniffing pattern changes. Nov. 7, 2017 Hr'g Tr. 19:21-25; May 1, 2018 Hr'g Tr. 183:15-184:11. A drug detection dog is also trained to have a final response - a trained indication separate from an alert. See Nov. 7, 2017 Hr'g Tr. 20:22-25; May 1, 2018 Hr'g Tr. 182:11-17. Examples of an active final response include barking at the source of the odor or scratching/digging at the source of the odor, while examples of a passive final response include sitting or lying down, and staring at the source of the odor. See May 1, 2018 Hr'g Tr. 182:18-183:4. The common element of the active and passive final responses is the stare behavior. Id. 182:25-183:4.

         Arras is an energetic dog who makes rapid movements typical for the Belgian Malinois breed. See Nov. 7, 2017 Hr'g Tr. 86:22-87:2; May 1, 2018 Hr'g Tr. 190:111-191:5. Arras's alert is to close his mouth, increase his respiration through his nose, and to either become a little more rigid, a little more frantic, and/or it may be accompanied with a change of direction. Nov. 7, 2017 Hr'g Tr. 20:5-21, 145:2-6. Arras's final response is to go into a half sit/squat, with a pinpoint stare towards the source of the odor, and then typically he barks several times. Id. 20:22-22:9, 146:9-13.

         On March 25, 2016, Officer Wood was traveling westbound on Interstate-40 with Arras when he observed a silver Dodge Charger traveling eastbound on I-40 seemingly driving faster than the posted 75 miles per hour speed limit. Id. 34:21-36:1. Officer Wood engaged his properly tested and working radar, which showed the vehicle speed was 92 mph, so he turned around, caught up to the vehicle, and stopped the vehicle by activating his emergency lights. See Id. 36:17-41:8. The vehicle stopped on the shoulder to the highway, and Officer Wood approached the passenger side. Id. 41:6-7, 45:10-14. A video camera in Officer Wood's patrol vehicle recorded the stop. Id. 37:24-39:6.

         The driver spoke English and appeared to understand Officer Wood throughout the encounter. See Gov.'s Ex. 6 (“Video of Stop”). Officer Wood explained to the driver, later identified as Defendant Mercado-Gracia, that he was going 92 mph, asked for his license and vehicle registration, and asked him to come over to the police vehicle while he checked Defendant's identification. Gov.'s Ex. 7 (“Tr. of Stop”) 2:7-14, ECF; Video of Stop 11:58 a.m. It is Officer Wood's common practice to ask motorists to exit their cars and accompany him to his patrol vehicle because his computer is in his vehicle and he can ask questions as they arise. Nov. 7, 2017 Hr'g Tr. 48:7-24. Officer Wood stood in the doorway of his patrol unit next to the passenger side front seat while Defendant stood by his passenger side front tire on the opposite side of his passenger door from Officer Wood. Id. 49:4-16. Officer Wood observed that Defendant was fidgeting, moving around, but engaged with Officer Wood as he talked to him. Id. 49:17-25. It is normal, however, for the traveling public to be fidgety when Officer Wood first stops them. Id. 50:18-21.

         Defendant provided an Arizona driver's license for Aaron Mercado-Gracia and a vehicle registration matching the stopped Dodge Charger. Id. 46:12-47:7. The vehicle registration showed the car was registered to Hector Ramirez Reyes. Id. At this point, Officer Wood became concerned that that name on the license did not match the registration. See Id. 47:1-12.

         Officer Wood then asked about ownership of the vehicle because it was unclear from the paperwork Defendant provided. See Id. 51:10-24. In response to Officer Wood's question who owned the vehicle, Defendant said, “Huh?” Tr. of Stop 2:16-18. When Officer Wood repeated his question, Defendant answered, “My cousin.” Id. 2:19-20. Defendant gave his cousin's name as “Favian.” Id. 2:21-25. Officer Wood observed that the insurance card had the name Favian Reyes, so he asked Defendant what Favian's last name was. Id.; Nov. 7, 2017 Hr'g Tr. 52:5-14; Gov.'s Ex. 8. When Defendant could not provide Officer Wood with Favian's last name, he clarified, “Well, he's my lady's, uh, husband's cousin.” Video of Stop at 11:59 a.m. Defendant said Favian let him borrow his car to come over here for the weekend, and when asked where he was heading, Defendant responded, “Albuquerque.” Tr. of Stop 3:5-8. Officer Wood found Defendant's answers regarding who owned the car confusing, and he was suspicious that Defendant did not know the last name of Favian, with whom he claimed a family tie of sorts, or in any event, someone with whom he had a relationship of trust to allow him to borrow the vehicle for a long trip. See Nov. 7, 2017 Hr'g Tr. 52:18-53:11. Officer Wood further found it suspicious that Defendant was driving a vehicle registered to Hector Ramirez Reyes but insured by Favian Reyes, which in his mind, made the true ownership of the car unclear. See Id. 54:12-21.

         While writing the citation, Officer Wood engaged Defendant in casual conversation. Id. 55:6-13. Officer Wood asked what brings him to Albuquerque, and the following exchange occurred:

Defendant: Just I own my own business -
Officer Wood: Do you?
Defendant: Yeah. It's a remodeling company. I'm trying to just like get going at it.
Officer Wood: So you're coming to Albuquerque for work?
Defendant: Oh no, just so I can drive around.
Officer Wood: Drive around?
Defendant: Yeah. I have a lady over here I want to meet.
Officer Wood: Oh, okay. Well, I thought your lady was over there. This was her cousin's car.
Defendant: Yeah, I know.
Officer Wood: Oh, okay.
Defendant: (Inaudible) girl down here.
Officer Wood: I see.
Defendant: So I couldn't bring my car.
Officer Wood: Ah, I see. How long are you going to be ...

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