United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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 ...