USA v. Arroyo et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CR-22-00239-JD
)
DANIEL OCHOA and 	)
KEVIN EARL TOOKS, 	)
)
Defendants. 	)
ORDER
Before the Court is Defendants Daniel Ochoa and Kevin Earl Tooks’ (collectively,
“Defendants”) Joint Motion to Suppress Evidence and Statements [Doc. No. 178], which
the government timely opposed [Doc. No. 185]. A hearing was held on August 3, 2023.1
At the hearing, Mr. Ochoa personally appeared with his appointed counsel, Jeffery
D. Trevillion, Jr., Miguel A. Figueroa, and Brian M. Self. Mr. Tooks personally appeared
with his appointed counsel, Assistant Federal Public Defender Traci Lynn Rhone. The
government appeared through Assistant United States Attorneys Wilson D. McGarry and
Travis Leverett. The Court received the testimony of one witness: Oklahoma Highway
1 At the hearing, counsel for Defendant Kevin Earl Tooks raised a discovery issue
regarding numerous jail phone calls that were recently produced to Defendants by the
government. Counsel made an oral motion to exclude these jail calls based on the timing
of the government’s production. Mr. Tooks has not sought any kind of continuance or
even a brief delay of trial to review the calls, and counsel on behalf of Tooks announced
at the pretrial conference that she was ready for trial. Nonetheless, the government has
explained that it does not intend to offer any of these calls at trial. Therefore, the oral
motion to exclude the jail calls is DENIED as moot without prejudice to reassertion at
trial, if necessary.
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Patrol (“OHP”) Trooper Michael Eckhardt. The government submitted as evidence the
previously submitted videos, which were conventionally filed of record at [Doc. Nos. 186
and 187], and portions of the videos were played during the hearing. The government
also submitted other exhibits, which are attached to its Response [Doc. Nos. 185-1
through 185-16]. The Court has reviewed the videos in their entirety, which include the
audio and video footage from the dashcam and the front passenger seat camera equipped
on Trooper Eckhardt’s patrol vehicle—both of which were recorded on May 17, 2022. At
the hearing, Defendants offered two exhibits, an Incident Details Report for Trooper
Eckhardt’s traffic stop and messages exchanged between Trooper Eckhardt and OHP
Trooper Brady Webb during the traffic stop. Upon consideration of the filings and
evidence presented, and having reviewed the relevant law, the Court issues its ruling.
I. 	PROCEDURAL HISTORY AND BACKGROUND
Defendants are charged, along with two other co-defendants, in a two-count
Indictment [Doc. No. 34] with Drug Conspiracy in violation of 21 U.S.C. § 846 and
Possession of Fentanyl with Intent to Distribute in violation of 21 U.S.C. § 841(a)(1). In
connection with Count 2, the Indictment also alleges the aiding and abetting statute, 18
U.S.C. § 2.
The charges stem from two traffic stops on Interstate 40 in Beckham County,
Oklahoma on the evening of May 17, 2022. OHP Trooper Brady Webb stopped one
vehicle driven by Ambrocio Arroyo, who was accompanied by Destiny Lopez. Almost
immediately thereafter, a different trooper, Michael Eckhardt, stopped a vehicle driven by
Daniel Ochoa, who was accompanied by Kevin Tooks.
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Mr. Ochoa and Mr. Tooks seek an order suppressing all evidence from the
cameras in Trooper Eckhardt’s patrol vehicle and all derivative evidence obtained from
Defendants’ cell phones and jail calls.2 They do not, however, move to suppress any of
the physical evidence recovered from within the vehicle.
While Defendants initially conceded in their Motion that the traffic stop was
justified at its inception, they reversed course at the hearing based on documents
disclosed by the government shortly before the hearing. Defendants argue that the stop
was not justified because it was pretextual in nature.3 They also challenge the scope of
the stop, arguing that Trooper Eckhardt unlawfully prolonged the traffic stop, and they
contend that they were subjected to custodial interrogation without receiving warnings
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). In response, the government
asserts that the stop was justified at its inception because Trooper Eckhardt observed a
speeding violation, that Trooper Eckhardt did not unlawfully prolong the traffic stop, and
that Defendants were never subjected to interrogation.
2 The Motion does not explain what comprises this derivative evidence. At the
hearing, Defendants clarified that they consider the data from the cell phones seized from
the Toyota Camry as derivative evidence.
3 Defendants do not argue, however, that Trooper Eckhardt could not have
observed a traffic violation.
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II. 	FINDINGS OF FACT4
On the evening of May 17, 2022, in Beckham County, Oklahoma, OHP Trooper
Brady Webb stopped a white Kia Forte driven by Ambrocio Arroyo, who was
accompanied by Destiny Lopez. Almost immediately thereafter, Trooper Michael
Eckhardt stopped a red Toyota Camry driven by Daniel Ochoa, who was accompanied by
Kevin Tooks. While the instant Motion relates to the traffic stop performed by Trooper
Webb, it mostly concerns the stop conducted by Trooper Eckhardt, who pulled Ochoa
over for speeding. Trooper Eckhardt5 testified at the hearing and stated in his Report
[Doc. No. 185-2] that he “radar checked” Ochoa’s speed at 80 miles per hour. The posted
speed limit was 75 miles per hour.
Trooper Eckhardt activated the lights on his patrol vehicle, and cameras on his
dashboard and inside his patrol vehicle began recording video and audio. The footage
4 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. These findings of fact shall serve as the Court’s essential findings for purposes of
Rule 12(d). 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 Federal Rules of Evidence, except those involving privilege, do not apply.
See Fed. R. Evid. 104(a). Thus, the Court may consider hearsay in ruling on a motion to
suppress.
5 In making its factual findings, the Court notes for the record that based upon its
observations at the hearing, the Court finds Trooper Eckhardt’s testimony to be credible.
See, e.g., United States v. Romero, 247 F. App’x 955, 960 (10th Cir. 2007) (unpublished)
(explaining that the “credibility of the witnesses and the weight to be given the evidence,
together with the inferences, deductions and conclusions to be drawn from the evidence,
are all matters most appropriate for resolution by the district court”) (citation omitted).
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from the dashcam and front passenger camera are attached to the government’s Response
[Doc. No. 185-4 and 184-5]. Trooper Eckhardt can be heard at the outset of the video
saying that Ochoa was driving 78 miles per hour and “got up to 80,” that Ochoa was
“kinda up and down,” and that “80 [was] the fastest . . . .” Front Passenger Camera 0:33–
0:50.
Although it is not always easy to discern what is being said, the cameras in the
patrol vehicle continued to record audio and video of the remainder of the traffic stop and
interaction between Defendants and OHP troopers. The sound inside the patrol vehicle
was captured for the entirety of the traffic stop and subsequent travel. At times, audio
from outside the patrol vehicle is also captured.
After Mr. Ochoa pulled over to the side of the highway, Trooper Eckhardt
approached the vehicle from the passenger side. He asked Ochoa for his license and then
asked Ochoa to accompany him back to his patrol vehicle so he could complete a
warning. Trooper Eckhardt explained in his report, which is filed at [Doc. No. 185-2],
that he could “smell the odor of marihuana coming from within the vehicle” and could
see “marihuana residue on the interior.” Eckhardt Report at 3–4.
Once inside the patrol vehicle, Trooper Eckhardt began discussing the speeding
violation with Mr. Ochoa while he was processing the warning. Trooper Eckhardt asked
Ochoa where he and Tooks were headed. Mr. Ochoa explained that they were driving to
Atlanta, Georgia to see about buying some dogs. Eckhardt Report at 4; Front Passenger
Camera [Doc. No. 185-5] at 3:24–3:55. After Trooper Eckhardt asked, Ochoa explained
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that he and Mr. Tooks would probably stay in Atlanta until Friday May 20, 2022 or
Saturday May 21, 2022. Front Passenger Camera at 5:13–5:24.
At one point, Trooper Eckhardt realized that he had previously stopped Ochoa on
another occasion, and Ochoa confirmed that Eckhardt had previously pulled him over.
Eckhardt Report at 4; Front Passenger Camera at 4:15–5:04.
Then Trooper Eckhardt asked Ochoa who rented the vehicle. Ochoa told him that
his friend Ambrocio rented it and added Ochoa as an additional driver. Eckhardt Report
at 4; Front Passenger Camera at 5:58–6:54. This is consistent with the picture of the
rental agreement attached to the government’s Response [Doc. No. 185-10]. Trooper
Eckhardt did not receive the rental agreement for the vehicle when Ochoa provided his
license, so he exited the patrol vehicle to retrieve it from Mr. Tooks, who was still seated
in the passenger seat of the Toyota Camry. Eckhardt Report at 4. Front Passenger Camera
at 9:49–10:06.
Trooper Eckhardt asked Mr. Tooks to give him the rental agreement, and Tooks
eventually located it. Eckhardt asked Tooks where he and Ochoa were traveling, and
Tooks explained that they were headed to Georgia so he could buy a dog and would make
“pit stops” in Tennessee. Dashcam [Doc. No. 185-4] at 10:14–10:49.
Once back inside the patrol vehicle with the rental agreement, Trooper Eckhardt
continued to run computer checks and process the speeding violation. The rental
agreement provided a return date of May 22, 2022 and a return location of Los Angeles,
California. [Doc. No. 185-10]; Eckhardt Report at 4.
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Trooper Eckhardt then told Mr. Ochoa he could smell marijuana in the vehicle and
asked Ochoa whether he and Tooks had been smoking marijuana. Ochoa admitted to
smoking but told Trooper Eckhardt that they had finished smoking before reaching
Texas. Ochoa then told Trooper Eckhardt that he could “go ahead and check” the vehicle
because there was “nothing[] there” that he and Eckhardt “need[ed] to have a
conversation about.” Front Passenger Camera at 13:32–14:00.
Before beginning the search of the Toyota Camry, Trooper Eckhardt directed Mr.
Tooks to exit the vehicle, and he escorted Tooks back to the patrol vehicle. Tooks sat in
the rear passenger-side seat of the patrol vehicle. Dashcam at 14:40–15:24. Trooper
Eckhardt also checked Ochoa for any weapons. Front Passenger Camera at 15:24–15:41.
Trooper Eckhardt’s Report explains that he received information from Trooper
Brady Webb before conducting his search of the Toyota Camry. Eckhardt Report at 5. At
the hearing, he explained that Webb communicated to him by sending him messages on
his computer. According to the report, Webb advised Eckhardt that he found a large
trafficking quantity of what Webb believed to be fentanyl pills inside the door panels of
the Kia Forte. Eckhardt Report at 5.
Trooper Webb’s Report, which is filed at [Doc. No. 185-1], summarizes the traffic
stop and subsequent search of the Kia Forte. Troopers Eckhardt and Webb conducted the
stops in substantially similar processes.
Trooper Eckhardt began the initial part of his search of the Toyota Camry, which
lasted around 10 minutes. Dashcam at 16:19–26:50. The video shows that he received a
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call after he began his search of the Toyota. Dashcam at 17:21–18:00. Trooper Eckhardt
explained at the hearing that this call was from OHP Trooper Jake Sawatzky.
A few minutes into the search, Trooper Eckhardt was joined by Trooper Sawatzky,
who helped him search the vehicle. Dashcam at 19:20–26:50. During the search, Mr.
Ochoa and Mr. Tooks were left in the patrol vehicle by themselves. The cameras inside
the patrol vehicle recorded their conversation.
The troopers then walked back to Eckhardt’s patrol vehicle to place Defendants in
handcuffs and inform them that they were being detained because they were in
conspiracy with the other vehicle. They also explained that the Drug Enforcement
Administration (“DEA”) would come out to speak with them if they were interested.
Trooper Sawatzky told Defendants that he would not read them Miranda warnings and
that the troopers would be taking both vehicles and Defendants to the Sayre Police
Department. Front Passenger Camera at 26:50–29:33.
The troopers then resumed their vehicle search and arranged for a wrecker to tow
the Toyota Camry to the Sayre Police Department. The camera inside the patrol vehicle
continued to record the conversation between Mr. Ochoa and Mr. Tooks. No one was
present in the vehicle at this time other than Mr. Ochoa and Mr. Tooks.
Recovered from the Toyota Camry were three cell phones, tools that the troopers
confirmed could be used to access the locations in the Kia Forte where the fentanyl pills
were hidden, the rental agreement, and marijuana residue. Eckhardt Report at 3.
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Defendants do not seek to exclude any of the physical evidence recovered from
the vehicle. Instead, they seek an order suppressing the video evidence and all derivative
evidence obtained from Defendants’ cell phones and jail calls.
III. 	RELEVANT LAW AND ANALYSIS
A. The traffic stop was justified at its inception due to Trooper Eckhardt’s
observation of a speeding violation.
Defendants assert that the traffic stop was unjustified at its inception because they
argue it was pretextual. At the hearing, Defendants asserted this for the first time and
asserted a new claim accusing the troopers of racial profiling. Based on the evidence at
the hearing, Trooper Eckhardt witnessed a traffic violation. Thus, the traffic stop was
justified at its inception.
The Fourth Amendment prohibits unreasonable searches and seizures by the
government. U.S. Const. amend. IV. The touchstone under the Fourth Amendment is
reasonableness. See id.
A traffic stop is a seizure under the Fourth Amendment “and is subject to review
for reasonableness.” United States v. Mayville, 955 F.3d 825, 829 (10th Cir. 2020). “To
be reasonable, a traffic stop must be justified at its inception and, in general, the officer’s
actions during the stop must be reasonably related in scope to the mission of the stop
itself.” Id. (citations omitted). The Tenth Circuit has explained that “a traffic stop is valid
under the Fourth Amendment if the stop is based on an observed traffic violation or if the
police officer has reasonable articulable suspicion that a traffic or equipment violation
has occurred or is occurring.” United States v. Botero-Ospina, 71 F.3d 783, 787 (10th
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Cir. 1995). And it is “irrelevant that the officer may have had other subjective motives for
stopping the vehicle.” Id. The sole inquiry here is whether these particular officers “had
reasonable suspicion that this particular motorist violated ‘any one of the multitude of
applicable traffic and equipment regulations’ of the jurisdiction.” Id. (quoting Delaware
v. Prouse, 440 U.S. 648, 661 (1979)).
Further, the constitutionality of the stop does not depend on whether the driver
did, in fact, commit a traffic violation. The standard is reasonable suspicion of
wrongdoing. If an officer reasonably thinks he saw a driver commit a traffic infraction,
then that is enough to pull him over. See, e.g., United States v. Reyes, 202 F. Supp. 3d
1209, 1213 (D. Kan. 2016) (explaining that the “propriety of a stop does not depend on
whether the suspect is actually guilty of committing a traffic offense; rather, the relevant
question is whether it was reasonable for the officers to believe the offense had been
committed”) (citing United States v. Eckhart, 569 F.3d 1263, 1271 (10th Cir. 2009) and
United States v. Cashman, 216 F.3d 582, 587 (7th Cir. 2000)).
Trooper Eckhardt observed Ochoa committing a traffic violation, having measured
his speed at five miles per hour over the posted speed limit. Apart from arguing the stop
was pretextual and the product of racial profiling, Defendants do not offer anything to
refute or discredit the several statements that Eckhardt made that Ochoa was speeding,
including the contemporaneous statements he made at the outset of the video, his
statement in his written report, and his testimony at the hearing. Trooper Eckhardt’s
explanation for why he stopped Ochoa has remained consistent. His subjective motives, if
any, are immaterial. See Botero-Ospina, 71 F.3d at 787; see also Whren v. United States,
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517 U.S. 806, 813 (1996) (explaining that the constitutional reasonableness of traffic
stops does not depend “on the actual motivations of the individual officers involved”);
Eckhart, 569 F.3d at 1271–72 (explaining that if a police officer witnesses a traffic
violation, then the traffic stop is justified at its inception); United States v. Cook, 25 F.
Supp. 2d 1167, 1169 (D. Colo. 1998) (“[A] pretextual motive is irrelevant if there was a
valid basis for stopping the vehicle in the first instance for a traffic or equipment
violation.”).
“Racially selective law enforcement violates this nation’s constitutional values at
the most fundamental level; indeed, unequal application of criminal law to white and
black persons was one of the central evils addressed by the framers of the Fourteenth
Amendment.” Marshall v. Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1167 (10th Cir.
2003). As the Tenth Circuit has explained, “[r]acial profiling issues concerning the
intentional discriminatory application of the law are the province of the Equal Protection
Clause.” United States v. Flores-Olmos, 438 F. App’x 713, 716 (10th Cir. 2011)
(unpublished). But this Court notes, as did the Tenth Circuit in Flores-Olmos, “the
Supreme Court’s admonition that ‘[s]ubjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis.’” Id. (quoting Whren, 517 U.S. at 813).
Even were Defendants’ claim of racial profiling a legally cognizable attack on
Trooper Eckhardt’s belief that Ochoa had committed a traffic violation, and thus on the
validity of the traffic stop, Defendants have provided no evidence of racial profiling by
the troopers. To prove such a charge, the Tenth Circuit requires defendants to
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present evidence from which a jury could reasonably infer that the law
enforcement officials involved were motivated by a discriminatory purpose
and their actions had a discriminatory effect. To satisfy the discriminatory-
effect element, one who claims selective enforcement must make a credible
showing that a similarly-situated individual of another race could have
been, but was not, stopped or arrested for the offense for which the
defendant was stopped or arrested. And the discriminatory-purpose element
requires a showing that discriminatory intent was a motivating factor in the
decision to enforce the criminal law against the defendant. Discriminatory
intent can be shown by either direct or circumstantial evidence.
United States v. Alcaraz-Arellano, 441 F.3d 1252, 1264 (10th Cir. 2006) (internal
quotation marks, citations, and alterations omitted). The basis for the argument that the
troopers racially profiled Defendants rests on the facts that Ochoa is a Hispanic male,
Tooks is an African American male, and the troopers are white men. Defendants offer no
direct or circumstantial evidence that the troopers were motivated by a discriminatory
purpose, nor do they attempt to make any showing that similarly-situated individuals of
another race could have been, but were not, stopped for speeding.
The traffic stop was based on a speeding violation observed by Trooper Eckhardt.
It was justified at its inception.
B. The traffic stop was not prolonged without at least reasonable suspicion of
criminal activity.
Defendants contend that the traffic stop was prolonged without reasonable
suspicion of criminal activity. “It is well-established that, during a routine traffic stop, an
officer may request a driver’s license and registration, run requisite computer checks, and
issue citations or warnings.” United States v. Pettit, 785 F.3d 1374, 1379 (10th Cir.
2015). An officer may also ask about the driver’s travel plans, United States v. Williams,
271 F.3d 1262, 1267 (10th Cir. 2001), and ask about matters unrelated to the stop if those
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questions do not prolong the length of the detention. United States v. Stewart, 473 F.3d
1265, 1269 (10th Cir. 2007). However, a lawful traffic stop may not extend beyond the
time “reasonably required” to effectuate the purpose of the stop. Rodriguez v. United
States, 575 U.S. 348, 357 (2015); see also United States v. Moore, 795 F.3d 1224, 1228
(10th Cir. 2015). Beyond that point, “[c]ontinued detention is lawful only if the encounter
becomes consensual or if, during the initial lawful traffic stop, the officer develops a
‘reasonable suspicion’ that the detained person is engaged in criminal activity.” Pettit,
785 F.3d at 1379 (citing United States v. Bradford, 423 F.3d 1149, 1156–57 (10th Cir.
2005) and United States v. Rosborough, 366 F.3d 1145, 1148 (10th Cir. 2004)).
Although the government bears the burden of proving the reasonableness of the
officer’s suspicion, “[r]easonable suspicion is not, and is not meant to be, an onerous
standard.” United States v. Simpson, 609 F.3d 1140, 1153 (10th Cir. 2010). “Reasonable
suspicion requires ‘considerably less’ than a preponderance of the evidence and
‘obviously less’ than probable cause to effect an arrest.” Pettit, 785 F.3d at 1379 (citing
United States v. Esquivel-Rios, 725 F.3d 1231, 1236 (10th Cir. 2013)). To satisfy this
standard, an officer is not required to “rule out the possibility of innocent conduct” or
have evidence suggesting “a fair probability of criminal activity.” Esquivel-Rios, 725
F.3d at 1236 (citations omitted). Rather, the officer must have a “particularized and
objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266,
273 (2002) (citation omitted). “This process allows officers to draw on their own
experience and specialized training to make inferences from and deductions about the
cumulative information available to them that might well elude an untrained person.” Id.
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(citations omitted). Further, the existence of objectively reasonable suspicion “‘does not
depend upon any one factor, but on the totality of the circumstances.’” Simpson, 609 F.3d
at 1146 (quoting United States v. Soto, 988 F.2d 1548, 1555 (10th Cir. 1993)).
In deciding whether the government has met this burden, the Court defers “to an
officer’s ability to distinguish between innocent and suspicious actions”; thus, the
“evaluation is made from the perspective of the reasonable officer, not the reasonable
person.” Id. at 1146–47 (citations omitted).
Here, since the reason Trooper Eckhardt pulled Ochoa over was for speeding, the
“mission” of the stop was to issue a warning to Ochoa for a speeding violation, and the
Fourth Amendment generally required that his actions reasonably relate to that mission.
These would “include those steps necessary to issue a ticket or warning, and ‘ordinary
inquiries incident to the traffic stop,’ such as ‘checking the driver’s license, determining
whether there are outstanding warrants against the driver, and inspecting the automobile’s
registration and proof of insurance.’” United States v. Cates, 73 F.4th 795, 805 (10th Cir.
2023) (quoting Rodriguez, 575 U.S. at 355). And as previously stated, Trooper Eckhardt
could ask Ochoa about unrelated matters as long as those inquiries did not prolong the
stop.
Up until Trooper Eckhardt asked Ochoa about the marijuana, there can be no
dispute that his inquiries and actions related to the mission of the stop, or at least did not
prolong the stop. Specifically, the Court finds that Trooper Eckhardt’s questions relating
to Ochoa’s and Tooks’ travel plans did not prolong the length of the stop because he
asked them while he was working on processing the speeding violation. And the time it
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took Trooper Eckhardt to obtain all the documentation from Ochoa and Tooks and run his
computer checks was reasonable.
Courts sometimes refer to an officer’s investigative detour during a traffic stop as
a “Rodriguez moment.” This is the moment when “the stop is prolonged such that
reasonable suspicion was necessary.” United States v. Batara-Molina, 60 F.4th 1251,
1255 n.1 (10th Cir. 2023). If there were such a moment in this case, it occurred when
Trooper Eckhardt asked Ochoa about the odor of marijuana emanating from the vehicle
because this question was not related to the speeding violation, and it did prolong the
stop. The Court, however, questions whether Rodriguez even applies here because based
on Trooper Eckhardt’s observations when he first made contact with Ochoa and Tooks,
he had probable cause to search the vehicle.
“Under the automobile exception to the Fourth Amendment’s warrant
requirement, ‘police officers who have probable cause to believe there is contraband
inside an automobile that has been stopped on the road may search it without obtaining a
warrant.’” United States v. Bradford, 423 F.3d 1149, 1159 (10th Cir. 2005) (quoting
Florida v. Meyers, 466 U.S. 380, 381 (1984) (per curiam)). The Tenth Circuit has
repeatedly explained that the smell of marijuana alone is sufficient to establish probable
cause to search a vehicle for the illegal substance. United States v. Downs, 151 F.3d
1301, 1303 (10th Cir. 1998) (holding that the strong smell of raw marijuana emanating
from the defendant’s vehicle at the time of the stop gave the officer probable cause to
search the vehicle’s trunk); United States v. Vasquez-Castillo, 258 F.3d 1207, 1213 (10th
Cir. 2001); United States v. Snyder, 793 F.3d 1241, 1244 (10th Cir. 2015).
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Eckhardt explained in his report that he could smell the odor of marijuana coming
from within the vehicle and could see marijuana residue on the interior, and Ochoa
explained that he and Tooks had previously smoked marijuana but had finished it before
driving through Texas.
The Court finds Trooper Eckhardt’s report and testimony that he smelled
marijuana coming from the vehicle to be credible. And although Ochoa ultimately
consented to search of the vehicle, Trooper Eckhardt’s observations of the odor and
presence of marijuana provided him probable cause to search the vehicle at the outset of
the traffic stop.6 See United States v. Johnson, 630 F.3d 970, 974 (10th Cir. 2010)
(“Because the district court specifically found the trooper to be credible when he testified
that there was a strong odor of burnt marijuana emanating from the car when he
approached to question the passengers, we can find no error in the conclusion that
probable cause was established to justify the search of the car.”).
6 At the hearing, Defendants argued that with the legalization of marijuana for
medical use in Oklahoma, the odor of marijuana alone is no longer sufficient to provide a
law enforcement officer probable cause to believe contraband is present in the vehicle
and, thus, that the odor of marijuana no longer provides a basis for a warrantless search of
a vehicle under the automobile exception. Defendants cite no authority for this argument.
As far as the Court is aware, the Tenth Circuit has not yet spoken on this issue. But the
Oklahoma Court of Criminal Appeals has, and it squarely rejected the very argument
advanced by Defendants. State v. Roberson, 492 P.3d 620, 623 (Okla. Ct. Crim. App.
2021) (“The decriminalization of marijuana possession for those holding medical
marijuana licenses in no way affects a police officer’s formation of probable cause based
upon the presence or odor of marijuana.”). Further, given the proximity of the location
where Trooper Eckhardt stopped Ochoa to the border between Oklahoma and Texas, time
of night, and what Mr. Ochoa relayed to Trooper Eckhardt, it was reasonable for Trooper
Eckhardt to not believe this to be legal marijuana possession and to believe that it was
brought out of state into Oklahoma.
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Defendants do not argue that Trooper Eckhardt could not have smelled the strong
odor of marijuana or that he could not have seen the residue in his initial contact with
them, but they point out that Trooper Eckhardt waited to mention anything about
marijuana until just over 11 minutes into his conversation with Ochoa. They also make
much of the fact that the troopers searched the vehicle for “nearly an hour.” Motion at 9.
But Defendants provide no explanation of the legal consequence of these facts.
To the extent that Rodriguez does apply here, the Court finds that Trooper
Eckhardt had reasonable suspicion that Ochoa and Tooks were engaged in criminal
activity based on the arguments made by the government and the evidence submitted,
including Trooper Eckhardt’s testimony. Reasonable suspicion of illegal activity—which
is all that is required to justify the detention—is a lower bar than probable cause. Valdez
v. McPheters, 172 F.3d 1220, 1227 n.5 (10th Cir. 1999).
So it follows that at the moment Trooper Eckhardt asked whether Ochoa and
Tooks had been smoking marijuana in the vehicle, he had reasonable suspicion that
Ochoa and Tooks were engaged in unlawful activity, specifically possession of
marijuana, which is a Schedule I controlled substance under state and federal law. See
Roberson, 492 P.3d at 623 (“In Oklahoma legal marijuana possession is limited to those
holding medical marijuana licenses and the amounts are strictly circumscribed by statute
and administrative rules.”).
On top of that, Trooper Eckhardt also reasonably inferred that the travel plans
provided by Ochoa and Tooks were suspiciously inconsistent with the listed return date
on the car rental agreement. Eckhardt Report at 4. The Tenth Circuit has “consistently
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held that implausible travel plans can contribute to reasonable suspicion.” Pettit, 785 F.3d
at 1381.
Ochoa explained that he and Tooks were on their way to Atlanta, Georgia so they
could look at some dogs Tooks was interested in buying. Tooks likewise explained that
they were headed to Georgia and were going to stop in Tennessee on the way. Ochoa told
Trooper Eckhardt that they would stay in Atlanta “probably til Friday,” or “probably til
Saturday,” but he then stated he did not know how long he and Tooks would be there.
Friday would have been May 20, 2022, and Saturday would have been May 21, 2022.
The rental agreement provided a return date of May 22, 2022 and a return location of Los
Angeles, California. Although perhaps not technically impossible, it seems implausible
that Ochoa could stay in Atlanta until Saturday and have the vehicle returned in Los
Angeles the next day. While this would not be sufficient by itself to give rise to
reasonable suspicion, it is a factor Trooper Eckhardt could consider.
At the hearing, Trooper Eckhardt testified that he and Trooper Webb were
messaging each other on their computers about the traffic stops as Eckhardt was running
his computer checks. He testified that Webb told him that Ambrocio Arroyo was the
driver of the Kia Forte. Thus, the rental agreement of the Toyota Camry being executed
by Mr. Arroyo was a fact that Trooper Eckhardt could take into account in his suspicion
that Mr. Ochoa and Mr. Tooks were engaged in some criminal activity connected with
the vehicle stopped by Trooper Webb.
To the extent that Rodriguez does apply, the Court finds that, based on the totality
of the circumstances, the facts available to Trooper Eckhardt at the time he asked Ochoa
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whether he and Tooks had been smoking marijuana would have warranted an officer of
reasonable caution in believing that other illegal activity was occurring. Thus, Trooper
Eckhardt was justified in prolonging the traffic stop.
C. Defendants have not shown they were subject to custodial interrogation
such that Miranda warnings were required.
Defendants allege violations to their Fifth Amendment rights because they were
not provided with Miranda warnings. “Miranda warnings only need to be given once a
suspect is in ‘custody’ and faces questioning that constitutes ‘interrogation.’” United
States v. Cortez, 965 F.3d 827, 840 (10th Cir. 2020) (quoting United States v. Jones, 523
F.3d 1235, 1239 (10th Cir. 2008)). “An individual is in custody when a reasonable person
in the suspect’s position would understand his or her situation as the functional
equivalent of formal arrest.” Id. The Supreme Court and the Tenth Circuit have clarified
that investigatory detentions such as ordinary traffic stops generally fall short of placing
the detainee in custody. Id.; Berkemer v. McCarty, 468 U.S. 420, 440 (1984).
Defendants argue that Ochoa was in custody when Trooper Eckhardt directed him
to sit in the patrol vehicle since Trooper Eckhardt testified that Ochoa was not free to
leave. In a case presenting similar circumstances—a trooper asking a driver to exit his car
and sit in the patrol vehicle without using handcuffs, weapons, or any other show of force
to effectuate the stop—the Tenth Circuit held that even though the driver and his
passengers “were not free to leave, the level of force used to effectuate the stop was not
so intrusive as to transform an investigative detention into a custodial interrogation that
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would require Miranda warnings.” United States v. Raynor, 108 F. App’x 609, 614 (10th
Cir. 2004) (unpublished).
Likewise here, Defendants were not in custody for the traffic stop portion of this
encounter. Nothing about the circumstances up until the vehicle search suggest anything
beyond an ordinary Terry stop occurred. Neither Mr. Ochoa nor Mr. Tooks was placed in
handcuffs, and while Ochoa was in the front seat of the patrol vehicle, Trooper Eckhardt
merely spoke to him as he was processing the speeding violation and running computer
checks. A reasonable person would not have understood this situation to be the functional
equivalent of a formal arrest.
The government concedes that Mr. Ochoa and Mr. Tooks were in custody once the
troopers placed them in handcuffs. Trooper Eckhardt testified at the hearing that he
arrested Defendants at this point. Thus, at that point, the troopers needed to provide
Miranda warnings before Ochoa and Tooks could be subjected to interrogation. United
States v. Eckhart, 569 F.3d 1263, 1275 (10th Cir. 2009).
“‘[I]nterrogation’ refers to ‘either express questioning or its functional
equivalent’—i.e., ‘words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely to elicit
an incriminating response from the suspect.’” United States v. Cash, 733 F.3d 1264, 1277
(10th Cir. 2013) (quoting Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980)). A
question from an officer is neither sufficient nor necessary. The inquiry is “whether law
enforcement officials should have known that their words or actions—whether framed as
a question or not—were reasonably likely to elicit an incriminating statement.” Id. An
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“incriminating response” is “any response—whether inculpatory or exculpatory—that the
prosecution may seek to introduce at trial.” Innis, 446 at 301 n.5 (emphasis omitted). The
Court “focuses primarily upon the perceptions of the suspect, rather than the intent of the
police.” Id. at 301.
In their Motion, Defendants point to one statement they claim was made by
Trooper Eckhardt after or as they were being placed in handcuffs. As clarified at the
hearing, this statement was made by Trooper Sawatzky. After placing Ochoa and Tooks
in handcuffs and back into the patrol vehicle, Trooper Sawatzky stated:
Okay, there’s another car that’s back here that’s traveling in tandem with
you guys. That thing’s loaded with fentanyl pills. So, here’s the deal, we
have seen multiple of these vehicles—they’re called decoy, like a
lead/follow type of deal—and you guys are in conspiracy with that vehicle.
And we believe there is trafficking quantities of suspected fentanyl pills,
the M30s, the blue M30s. So you’re detained at this point. So here’s what
we do from this point on, okay, and you guys need to think about this.
Okay, so what we do anytime we find bulk narcotics, bulk currency,
anything that’s of trafficking quantities, okay, significant value, we always
call the DEA. The DEA is basically the investigative division that we call.
They do all our follow-up on our large-scale seizures. Okay, so if you guys
are interested in speaking with them, that option’s gonna be out there for
you. And if they come out, what they’re gonna wanna, they’re gonna
wanna know the who, what, when, where, why, how. But that’s gonna be
your opportunity to help yourself if you choose. We’re not reading you
Miranda at this time. But that’s just something we’re gonna throw out there
while we make our calls and finish processing the vehicle. Okay, so what
we’re gonna do is we’re gonna take everybody in both vehicles back to the
police department, and we’re gonna conduct secondary searches or
continue our searches at that location. Okay, so if there’s anything you guys
need, wanna think about, wanna talk about, you guys feel free, and then
we’ll get back with you here in a minute.
Front Passenger Camera at 27:48–29:31.
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Defendants argue this statement constitutes interrogation. The Court disagrees. All
the trooper was doing was explaining to Defendants why they were being detained and
what would happen next. This is not a statement that any law enforcement officer would
know is reasonably likely to elicit an incriminating statement. It does not appear that the
trooper was looking for any response from Defendants. This is purely informational.
Therefore, Defendants were not subject to custodial interrogation at this point.
As for any other statement made by Defendants after Trooper Sawatzky’s
explanation for why they were being detained and what would happen next, including in
Defendants’ conversation in the patrol vehicle, Defendants have not shown how Miranda
is implicated.
The Tenth Circuit has explained that there is no reasonable expectation of privacy
for communications while in a law enforcement vehicle.7 United States v. Turner, 209
F.3d 1198, 1200–01 (10th Cir. 2000). Defendants point to nothing coercive about the
troopers’ words or actions that was likely to elicit incriminating statements from
Defendants after they were left together in the patrol vehicle. “Miranda itself recognized
that ‘[a]ny statement given freely and voluntarily without any compelling influences is,
of course, admissible in evidence.’” United States v. Pettigrew, 468 F.3d 626, 635 (10th
Cir. 2006) (quoting Miranda, 384 U.S. at 478).
7 Further, it appears that the front passenger door window may have been at least
partially lowered for some of the time Defendants were in the patrol vehicle. See Front
Passenger Camera at 51:00–51:58.
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Even if Defendants had established a Miranda violation occurred, it would not
necessarily mean that all subsequent statements of Defendants are suppressed as fruits of
the poisonous tree. The Tenth Circuit has explained that while an “unwarned confession
taken in violation of Miranda must be suppressed . . . it does not necessarily follow that
every subsequent voluntary statement made by a suspect must be suppressed as well.”
Pettigrew, 468 F.3d at 635. “[T]he admissibility of an unsolicited inculpatory statement,
following a voluntary statement made in violation of Miranda, turns on whether the
inculpatory statement was knowingly and voluntarily made.” Id. at 636.
Defendants’ conversation in the patrol vehicle was entirely voluntary and
unsolicited by the troopers. And their statements in that conversation were volunteered,
not the product of interrogation. These circumstances do not implicate the concern that
the “possibility of coercion inherent in custodial interrogations unacceptably raises the
risk that a suspect’s privilege against self-incrimination might be violated,” which was
the basis for the Miranda decision. United States v. Patane, 542 U.S. 630, 639 (2004).
Thus, to the extent that Defendants are arguing that the conversation should be
suppressed under the fruits of the poisonous tree doctrine because of a prior Miranda
violation, the Court finds that their argument should be rejected.
Because the statements in the patrol vehicle appear to have been the result of a
free and unconstrained choice by Mr. Ochoa and Mr. Tooks, the Court will not suppress
them.
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IV. 	CONCLUSION
For these reasons, the Court DENIES Defendants Daniel Ochoa and Kevin Earl
Tooks’ Joint Motion to Suppress Evidence and Statements [Doc. No. 178]
IT IS SO ORDERED this 4th day of August 2023.
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