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United States v. Phongprasert

United States District Court, D. New Mexico

June 12, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
NATHAN ANTHONY PHONGPRASERT, Defendant.

          John C. Anderson United States Attorney Samuel A. Hurtado Edward Han Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson, LLC Albuquerque, New Mexico Attorney for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant Nathan Phongprasert's Motion to Suppress Evidence as a Result of an Unlawful Seizure and Arrest and Memorandum in Support Thereof, filed August 16, 2017 (Doc. 23)(“Motion”). The Court held an evidentiary hearing on November 30, 2017. The primary issues are: (i) whether New Mexico State Police Officer William Radasa had reasonable suspicion to stop Defendant Nathan Anthony Phongprasert's vehicle for following another vehicle too closely; (ii) whether Radasa's Vehicle Identification Number (“VIN”) inspection of Phongprasert's vehicle violated the Fourth Amendment of the Constitution of the United States of America; and (iii) whether Phongprasert validly consented to Radasa's and New Mexico State Police Officer Ruben Aguirre's search of Phongprasert's vehicle. The Court concludes that: (i) Radasa had reasonable suspicion to stop Phongprasert's vehicle for following another vehicle too closely; (ii) Radasa's VIN inspection of Phongprasert's vehicle did not violate the Fourth Amendment; and (iii) Phongprasert validly consented to Radasa's and Aguirre's vehicle search. Accordingly, the Court will deny the Motion.

         FACTUAL BACKGROUND

         Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d)(“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual's confession or consent to a search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269 (“The purpose of the suppression hearing was, of course, to determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments. In this type of hearing the judge had latitude to receive it, notwithstanding the hearsay rule.”); United States v. Garcia, 324 Fed.Appx. 705, 708 (10th Cir. 2009)(unpublished)[1](“We need not resolve whether Crawford [v. Washington, 541 U.S. 36 (2004)]'s[2] protection of an accused's Sixth Amendment confrontation right applies to suppression hearings, because even if we were to assume this protection does apply, we would conclude that the district court's error cannot be adjudged ‘plain.'”); United States v. Ramirez, 388 Fed.Appx. 807');">388 Fed.Appx. 807, 810 (10th Cir. 2010)(unpublished)(“It is beyond reasonable debate that Ramirez's counsel were not ineffective in failing to make a Confrontation Clause challenge to the use of the confidential informant. The Supreme Court has not yet indicated whether the Confrontation Clause applies to hearsay statements made in suppression hearings.”). Cf. United States v. Hernandez, 778 F.Supp.2d 1211, 1226 (D.N.M. 2011)(Browning, J.)(concluding “that Crawford v. Washington does not apply to detention hearings”).

         1. Radasa has worked as a New Mexico State Police Officer for four years. See Draft Transcript of Evidentiary Hearing at 3:14-16 (taken November 30, 2017)(Han, Radasa)(“Tr.”).[3]

         2. On December 10, 2015, at approximately 11:00 a.m., Radasa was driving his police car on Interstate 40 (“I-40”) heading eastbound near the 133 mile marker in Bernalillo County, New Mexico, near Albuquerque. See Tr. at 3:17-23 (Han, Radasa).

         3. Aguirre accompanied Radasa in Radasa's vehicle. See Tr. at 16:5-9 (Han, Radasa).

         4. Earlier that day, Radasa had run the license plates of Arizona and Wisconsin drivers that he had encountered through the New Mexico State Police's system. See Tr. at 34:1-21 (Johnson, Radasa); New Mexico State Police Unit Log at 1 (dated July 10, 2017)(Defendant's Hearing Exhibit AA)(“Dispatch Log”).

         5. Radasa saw a black SUV, which Phongprasert was driving. See Tr. at 3:24-4:1 (Han, Radasa).

         6. Phongprasert's vehicle was traveling at approximately sixty-five miles per hour. See Tr. at 39:20-22 (Radasa, Johnson).

         7. The average length of the white stripes painted on the highway in the traffic stop's vicinity is 10.5 feet, and the average distance between the stripes is 28.5 feet. See Photograph of Highway at 1 (undated)(Defendant's Hearing Exhibit A); Tr. at 61:2-7 (Johnson, Torres)(Torres explaining his calculations).[4]

         8. Phongprasert's vehicle is approximately seventeen feet long. See Tr. at 64:10-11 (Torres).

         9. Before Radasa stopped Phongprasert, Phongprasert was driving behind a commercial truck and traveling at a minimum of seventy-eight to eighty-three feet, or 4.7 car lengths, see Tr. at 70:19-24 (Johnson, Torres)(Torres explaining his calculations); Photograph of Highway at 1 (undated)(Defendant's Hearing Exhibit T), and a maximum of 145.5 feet, or 8.5 car lengths, see Tr. at 65:21-24 (Johnson, Torres)(Torres explaining his calculations); Photograph of Highway at 1 (undated)(Defendant's Hearing Exhibit B), behind it.

         10. It would have taken the commercial truck driving in front of Phongprasert an average of 269 feet to come to a complete stop when traveling at 65 miles per hour, or 229 feet when traveling at 60 miles per hour. See Tr. at 77:2-17 (Johnson, Torres)(Torres explaining his calculations).

         11. Had the truck slammed on its brakes, Phongprasert was traveling far enough behind the truck that he would have had a sufficient distance to stop, and would not have collided with the truck. See Tr. at 78:10-21 (Torres, Johnson)(Torres explaining his calculations).

         12. When driving on a highway, a police officer cannot analyze frame by frame the distance between two vehicles, nor would an officer know the lengths of different car models. See Tr. at 79:20-25 (Han, Torres); id. at 80:1-10 (Han, Torres).

         13. The distance between Phongprasert's vehicle and the truck fluctuated, and the vehicles were traveling at approximately sixty-five miles per hour. See Tr. at 80:11-20 (Han, Torres).

         14. Radasa believed that Phongprasert's vehicle was following the commercial truck too closely. See Tr. at 4:1-2 (Radasa).

         15. Radasa estimated that Phongprasert's vehicle was fewer than five car lengths behind the truck. See Dash Camera Video of Officer William Radasa at 9:40-9:50 (dated December 10, 2015)(Government's Hearing Exhibit 2)(“Video”).[5]

         16. Radasa uses a “five second rule” to determine if he believes a vehicle is following another vehicle too closely. Tr. at 4:23-25 (Radasa).

         17. This rule involves observing a vehicle pass a stationary object, counting off five seconds, and then observing whether the following vehicle passes the stationary object within the five-second interval. See Tr. at 5:3-12 (Radasa).

         18. The New Mexico Driver's Manual advises that drivers should use a “three second rule” which, except for the time interval, operates the same way as Radasa's “five second rule.” Tr. at 26:16-19 (Johnson, Radasa).

         19. Radasa knows that the New Mexico Driver's Manual advises a “three second rule.” Tr. at 26:16-19 (Johnson, Radasa).

         20. Radasa knows that federal standards require that the white stripes painted on an interstate highway be approximately eleven feet long, and the distance between the white stripes be approximately twenty-eight to thirty feet. See Tr. 30:1-7 (Johnson, Radasa).

         21. Radasa ran Phongprasert's California license plate through the New Mexico State Police's system. See Tr. at 34:22-24 (Johnson, Radasa); Dispatch Log at 1.

         22. Radasa initiated a traffic stop and pulled over Phongprasert's vehicle to the side of I-40. See Tr. at 5:15-16 (Han, Radasa).

         23. Radasa walked to the passenger side of Phongprasert's vehicle, and asked for Phongprasert's driver's license, vehicle registration, and proof of insurance. See Tr. at 6:5-8 (Radasa).

         24. Radasa observed that Phongprasert would not look at him directly, that his hands were shaky, and that he appeared nervous. See Tr. at 6:11-14 (Radasa).

         25. Radasa smelled a strong odor of air freshener, but did not observe any air fresheners in plain sight. See Tr. at 6:19-22 (Radasa).

         26. After Radasa received the requested documents from Phongprasert, Radasa asked him to exit the vehicle and follow him to the passenger side of Radasa's police car. See Tr. at 6:24-7:1 (Radasa).

         27. Radasa then began to draft a citation for Phongprasert for following the commercial truck too closely. See Tr. at 7:2-5 (Han, Radasa); id. at 21:19-22 (Han, Radasa).

         28. Radasa asked Phongprasert about his travel plans, and Phongprasert told him that he was driving from California to Oklahoma. See Tr. at 8:4-9 (Radasa).

         29. It usually takes eight to twelve minutes for Radasa to issue a citation. See Tr. at 8:17-19 (Radasa).

         30. In his career, Radasa has issued hundreds of citations for following another vehicle too closely. See Tr. at 25:2-4 (Johnson, Radasa).

         31. It took approximately eight minutes for Radasa to issue Phongprasert's citation. See Video at 02:48-11:06.

         32. Radasa also checked Phongprasert's vehicle's VIN. See Tr. at 9:1 (Radasa).

         33. When Radasa checked the VIN, he first opened the vehicle's driver's side door. See Video at 8:38-8:40.

         34. He then looked toward the bottom right part of the door frame to check the VIN sticker. See Video at 08:39-08:44.

         35. Radasa then briefly moved closer to the vehicle's doorway before stepping back and closing the door. See Video at 8:45-849.

         36. During the VIN inspection, Radasa's back and hat remain visible in the Video, and are outside the doorway. See Video at 8:45-849.

         37. During the VIN inspection, Radasa looked briefly into Phongprasert's vehicle. See Video at 8:46-8:50.

         38. Apart from seeing the VIN, there is no evidence in the record indicating what Radasa saw during the VIN inspection, including during this brief look.

         39. Radasa remained physically outside of Phongprasert's vehicle when he inspected the VIN inside the doorjamb. See Video at 8:38-8:49.

         40. After checking the VIN inside the door, Radasa checked the VIN on the vehicle's dash. See Tr. at 45:7-9 (Johnson, Radasa).

         41. During the VIN check, Phongprasert stood on the passenger side of Radasa's police car. See Tr. at 10:5-6 (Radasa).

         42. After checking the VIN, Radasa walked back to his police car and finished issuing the citation. See Tr. at 10:9-10 (Radasa).

         43. Radasa told Phongprasert that, in his opinion, a safe distance to travel behind another vehicle is between five and seven car lengths. See Tr. at 30:23-31:1 (Johnson, Radasa).

         44. After Radasa issued the citation, he told Phongprasert that Phongprasert was free to leave. See Tr. at 11:1-6 (Han, Radasa).

         45. Radasa returned Phongprasert's vehicle registration, driver's license, and proof of insurance to Phongprasert. See Tr. at 11:7-11 (Han, Radasa).

         46. Phongprasert understood that he was free to leave, because he then walked away from Radasa and toward his own vehicle. See Tr. at 11:12-21 (Han, Radasa).

         47. As Phongprasert walked toward his vehicle, Radasa called out to him “Sir!” Tr. at 11:24 (Radasa).

         48. Phongprasert turned and walked toward Radasa. See Tr. at 12:1-3 (Radasa).

         49. Radasa then stated that he knew he had said that Phongprasert was free to leave, but inquired whether he could ask Phongprasert more questions. See Tr. at 45:16-18 (Johnson, Radasa).

         50. Phongprasert replied that Radasa could ask him more questions. See Tr. at 12:6-8 (Han, Radasa)(“[H]e advised that I could ask more questions.”).

         51. During this exchange, Radasa's tone was not commanding. See Video at 11:00-11:30.

         52. During this exchange, there is no evidence in the record that the officers displayed their weapons, physically touched Phongprasert, or used intimidating body language.

         53. Radasa asked Phongprasert if Phongprasert had anything illegal in his car. See Tr. at 46:5-8 (Johnson, Radasa).

         54. Radasa then asked Phongprasert if he could search Phongprasert's vehicle. See Tr. at 46:9-10 (Johnson, Radasa).

         55. Phongprasert verbally agreed to allow the search. See Tr. at 13:20-14:1 (Han, Radasa).

         56. Radasa also showed and explained to Phongprasert the New Mexico Department of Public Safety Consent to Search Form. See New Mexico Department of Public Safety Consent to Search Form at 1 (dated December 10, 2015)(Government's Hearing Exhibit 1)(“Consent Form”); Tr. at 14:4-9 (Radasa).

         57. Phongprasert completed and signed the Consent Form. See Tr. at 14:4-9 (Radasa); Consent Form at 1.

         58. Phongprasert read the form, and Radasa watched him read it. See Tr. at 14:18-25 (Han, Radasa).

         59. The Consent Form states:

I, Nathan Phongprasert, hereby grant my consent to William Radasa Officer[] of the New Mexico Department of Public Safety, to search the following vehicle described below including luggage, containers, and contents therein. If [the] search reveals a false or altered compartment, access to such compartment will be ...

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