United States District Court, D. New Mexico
C. Anderson United States Attorney Samuel A. Hurtado Edward
Han Assistant United States Attorneys United States
Attorney's Office Albuquerque, New Mexico Attorneys for
Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson, LLC
Albuquerque, New Mexico Attorney for the Defendant
MEMORANDUM OPINION AND ORDER
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.
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)(“We need not resolve whether
Crawford [v. Washington, 541 U.S. 36
(2004)]'s 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
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,
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).
Aguirre accompanied Radasa in Radasa's vehicle.
See Tr. at 16:5-9 (Han, Radasa).
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
Radasa saw a black SUV, which Phongprasert was driving.
See Tr. at 3:24-4:1 (Han, Radasa).
Phongprasert's vehicle was traveling at approximately
sixty-five miles per hour. See Tr. at 39:20-22
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
Phongprasert's vehicle is approximately seventeen feet
long. See Tr. at 64:10-11 (Torres).
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.
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).
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).
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).
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,
Radasa believed that Phongprasert's vehicle was following
the commercial truck too closely. See Tr. at 4:1-2
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
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).
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).
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 knows that the New Mexico Driver's Manual advises
a “three second rule.” Tr. at 26:16-19 (Johnson,
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).
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
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).
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).
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).
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).
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).
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 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).
usually takes eight to twelve minutes for Radasa to issue a
citation. See Tr. at 8:17-19 (Radasa).
his career, Radasa has issued hundreds of citations for
following another vehicle too closely. See Tr. at
25:2-4 (Johnson, Radasa).
took approximately eight minutes for Radasa to issue
Phongprasert's citation. See Video at
Radasa also checked Phongprasert's vehicle's VIN.
See Tr. at 9:1 (Radasa).
When Radasa checked the VIN, he first opened the
vehicle's driver's side door. See Video at
then looked toward the bottom right part of the door frame to
check the VIN sticker. See Video at 08:39-08:44.
Radasa then briefly moved closer to the vehicle's doorway
before stepping back and closing the door. See Video
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.
During the VIN inspection, Radasa looked briefly into
Phongprasert's vehicle. See Video at 8:46-8:50.
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.
Radasa remained physically outside of Phongprasert's
vehicle when he inspected the VIN inside the doorjamb.
See Video at 8:38-8:49.
After checking the VIN inside the door, Radasa checked the
VIN on the vehicle's dash. See Tr. at 45:7-9
During the VIN check, Phongprasert stood on the passenger
side of Radasa's police car. See Tr. at 10:5-6
After checking the VIN, Radasa walked back to his police car
and finished issuing the citation. See Tr. at
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,
After Radasa issued the citation, he told Phongprasert that
Phongprasert was free to leave. See Tr. at 11:1-6
Radasa returned Phongprasert's vehicle registration,
driver's license, and proof of insurance to Phongprasert.
See Tr. at 11:7-11 (Han, Radasa).
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).
Phongprasert walked toward his vehicle, Radasa called out to
him “Sir!” Tr. at 11:24 (Radasa).
Phongprasert turned and walked toward Radasa. See
Tr. at 12:1-3 (Radasa).
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
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
During this exchange, Radasa's tone was not commanding.
See Video at 11:00-11:30.
During this exchange, there is no evidence in the record that
the officers displayed their weapons, physically touched
Phongprasert, or used intimidating body language.
Radasa asked Phongprasert if Phongprasert had anything
illegal in his car. See Tr. at 46:5-8 (Johnson,
Radasa then asked Phongprasert if he could search
Phongprasert's vehicle. See Tr. at 46:9-10
Phongprasert verbally agreed to allow the search.
See Tr. at 13:20-14:1 (Han, Radasa).
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).
Phongprasert completed and signed the Consent Form.
See Tr. at 14:4-9 (Radasa); Consent Form at 1.
Phongprasert read the form, and Radasa watched him read it.
See Tr. at 14:18-25 (Han, Radasa).
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 ...