Virginia Lawyers Weekly VA Lawyers Weekly
Where the court could not credit the testimony of a Virginia state trooper that he searched a vehicle after seeing vacuum-sealer packaging material when he initially pulled the truck over, and the remaining reasons why the trooper searched the vehicle did not objectively amount to reasonable suspicion of criminal activity, the warrantless search was illegal and the defendant’s motion to suppress 17 kilograms of cocaine was granted.
Background
On Dec. 10, 2021, Virginia state trooper Joseph Miller, who was working with a drug-interdiction unit on Interstate 81 near Roanoke, stopped a 2019 Dodge Ram pickup truck for several traffic infractions, including speeding and an expired registration. Miller asked the female driver and co-owner of the pickup truck, Monica Alvarado, to accompany him back to his police cruiser. Miller instructed the front-seat passenger (and other co-owner of the vehicle), defendant Michael Luis Contreras, to remain in the truck while he spoke to Alvarado.
After running license checks, confirming the vehicle’s expired registration and speaking to Alvarado and Contreras about their recent travel itinerary, Miller told Alvarado that he suspected the couple was transporting narcotics and that, as a result, they would have to remain on the scene until an officer arrived with a drug-sniffing K9. When the dog arrived, it did not alert to the presence of drugs.
Miller then told Alvarado that he was going to let her go with a verbal warning, admonishing her to renew the truck’s registration as soon as possible. Before Alvarado could get out of Miller’s vehicle, however, the officer asked her if there was anything illegal in the truck; she said there wasn’t. Miller then asked Alvarado if he could search it; she said he could.
Based on Alvarado’s consent, Miller thoroughly searched the pickup truck. He first inspected the interior cab and its contents, then turned to the bed of the truck. Miller eventually focused on the rear tailgate, remarking to another trooper who had arrived on the scene that it felt heavier than it should. After peering through an opening in the tailgate, the troopers saw what appeared to be objects wrapped in red cellophane, which they suspected contained illegal drugs. Miller then removed the cover of the tailgate and discovered approximately 17 kilograms of cocaine.
Contreras was arrested and charged in a one-count federal indictment with possession with intent to distribute a Schedule II controlled substance. He filed a motion to suppress the evidence against him. Contreras’s motion was fully briefed, the court received evidence and heard argument on the motion on Oct. 6, 2022. The parties then submitted post-hearing briefs.
Analysis
Contreras argues that Miller lacked reasonable and articulable suspicion to prolong the traffic stop for a K9 sniff. The government disputes this, pointing to several factors that, it contends, gave rise to reasonable suspicion.
First, the government notes that Miller testified that he observed a piece of vacuum-sealer packaging material near the backseat of the cab at the beginning of the traffic stop. Miller explained that this discovery was significant because, in his experience, drug traffickers frequently utilize vacuum-sealed bags to conceal the odor of narcotics from drug-sniffing police K9s.
Second, Contreras and Alvarado gave inconsistent accounts of their recent travel. Third, the truck contained various items — fast-food wrappers, drink bottles and trash — suggesting non-stop travel. Fourth, the government relies on Miller’s perception that both occupants were unusually nervous throughout the encounter with him.
But the court cannot credit Miller’s testimony that he observed the vacuum-sealer packaging material when he initially pulled the truck over. The officer failed to document this critical observation in the part of his official report explaining what had led to the search. He never confronted Alvarado or Contreras with this apparent discovery at any point while he was questioning them, and Miller made no mention of the vacuum-sealer packaging material to the other officers on the scene when he provided a detailed account of why he suspected the couple of transporting drugs.
Without the observation of the vacuum-sealer packaging material—which was the only true indicia of drug-trafficking activity — the remaining factors, when considered in their totality and under this circuit’s recent precedents, do not objectively amount to reasonable suspicion of criminal activity — even when accounting for Miller’s considerable experience.
Defendant’s motion to suppress granted.
United States v. Contreras, Case No. 7:22-cr-00018, Dec. 23, 2022. WDVA at Roanoke (Cullen). VLW 022-3-559. 37 pp.
