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United States v. Aruiza-Andrade

United States District Court, D. Oregon, Medford Division

March 29, 2019

UNITED STATES OF AMERICA,
v.
JULIO CESAR ARUIZA-ANDRADE, Defendant.

          OPINION AND ORDER

          MCSHANE, DISTRICT JUDGE.

         This matter comes before the Court on Defendant's Motion to Suppress. ECF No. 21. An evidentiary hearing was held on this motion on January 16, 2019. ECF No. 31.

         BACKGROUND

         During the evening of March 19, 2018, Oregon State Police Trooper Jamie Broome and Senior Trooper Nugent were driving a marked OSP patrol car on Interstate 5 in Medford, Oregon. At approximately 10:41 p.m., Trooper Broome saw a black 2007 Toyota Tacoma pickup truck with California license plates cross the white fog line while traveling northbound. Gov. Ex. 1 (OSP dashcam video), at 00:01:55-00:01:57. The posted speed limit for that stretch of Interstate 5 is 55 mph.[1] Trooper Broome's radar indicated that the vehicle was traveling at 68 mph.

         Trooper Broome activated his patrol car's overhead lights and sirens and initiated a traffic stop at approximately 10:44 p.m. Gov. Ex. 1, at 00:02:45. The pickup truck came to a prompt and safe stop on the side of the Interstate near mile post 29. Id. at 00:03:03; Gov. Ex. 3, at 4. At the time of the stop, the vehicle's driver and sole occupant was Defendant Julio Cesar Aruiza-Andrade.

         The troopers approached the vehicle and contacted Mr. Aruiza-Andrade. The troopers identified themselves and told Mr. Aruiza-Andrade that the encounter was being recorded. Upon making contact, it quickly became apparent to the troopers that Mr. Aruiza-Andrade spoke very little English. The troopers spoke little or no Spanish, which rendered communication a difficult and laborious process throughout the subsequent stop.

         Trooper Broome attempted to explain that he had stopped Mr. Aruiza-Andrade for crossing outside of his lane and for speeding. Trooper Broome asked Mr. Aruiza-Andrade if he had a driver's license, to which Mr. Aruiza-Andrade responded “No.” Gov. Ex. 1, at 00:04:15. Trooper Broome asked Mr. Aruiza-Andrade if he had any identification. Mr. Aruiza-Andrade produced a Mexican consular identification card, which gave his name as Gaspar Jimenez-Hernandez.[2] At the hearing, Trooper Broome testified that he was suspicious of the identification card, but that he was not aware of any mechanism for checking the validity of foreign identification cards.

         Upon approaching the vehicle, Trooper Broome testified that he could smell an odor of alcohol. Trooper Broome testified that Mr. Aruiza-Andrade's eyes were bloodshot and watery. Trooper Broome also saw an open twelve-pack of beer in the back seat of the pickup truck. There were two unopened beers left in the twelve-pack and a partially-consumed beer lying on the floor of the backseat.

         Trooper Broome attempted to ascertain if Mr. Aruiza-Andrade had been drinking by asking “Sir, how many cervezas [beers]?” Gov. Ex. 1, at 00:05:06. Mr. Aruiza-Andrade did not appear to understand the question and when Trooper Broome repeated “Cervezas?” Mr. Aruiza-Andrade responded “Ah, si [yes].” Gov. Ex. 1, at 00:05:16. Trooper Broome attempted to translate “how many” into Spanish. Trooper Broome, who does not speak Spanish, incorrectly presented the question using the interrogative “Quando?” (which translates as “When?”)[3] Gov. Ex. 1, at 00:05:23. Mr. Aruiza-Andrade answered “Tres, ” (which translates as “three”). Id. Trooper Broome only later learned that he had incorrectly translated his question and testified that, at the time, he understood Mr. to have admitted to consuming three beers.

         Trooper Broome retrieved his cellphone from the patrol car and unsuccessfully attempted to use a translator app to communicate with Mr. Aruiza-Andrade. Mr. Aruiza-Andrade also attempted to facilitate communication by calling his wife, who spoke some English, on his cellphone. The troopers tried to explain the reason for the stop to Mrs. Aruiza-Andrade, but her command of English was too limited for her to serve as an effective translator.

         Approximately five minutes after the stop, the troopers directed Mr. Aruiza-Andrade to turn off the vehicle and place his keys on the dashboard. Gov. Ex. 1, at 00:07:52. Trooper Broome then asked Mr. Aruiza-Andrade to step out of the car, which Mr. Aruiza-Andrade did. Id. at 00:08:38-00:09:06.

         When Mr. Aruiza-Andrade stepped out of the car, he was holding his cellphone to his ear with one hand and had the other hand in his front pocket. The troopers directed Mr. Aruiza-Andrade to take his hands out of his pockets. Mr. Aruiza-Andrade did not appear to understand, so Trooper Broome took Mr. Aruiza-Andrade's arm and pulled it from the pocket, repeating that Mr. Aruiza-Andrade should keep his hands out of his pockets. Mr. Aruiza-Andrade then hung up his cellphone and attempted to place both hands in his pockets. The troopers grabbed Mr. Aruiza-Andrade's arms and again repeated that he should not place his hands in his pockets. Trooper Broome patted down Mr. Aruiza-Andrade and asked if Mr. Aruiza-Andrade had any weapons on his person. Mr. Aruiza-Andrade answered “No.” Gov. Ex. 1, at 00:09:43.

         Through a combination of verbal instructions and hand gestures, the troopers led Mr. Aruiza-Andrade to the front of the cruiser and directed him to sit on the vehicle's front guard. Gov. Ex. 1, at 00:09:57. Trooper Broome once again attempted to use a translator app to communicate, but without success.

         At this point, Mrs. Aruiza-Andrade called Mr. Aruiza-Andrade's cellphone and Trooper Broome told Mr. Aruiza-Andrade that he could answer the call. Gov. Ex. 1, at 00:11:29. While on the phone with his wife, Mr. Aruiza-Andrade exhibited some confusion about where he was and asked Trooper Broome if he was in Shasta. Trooper Broome responded that they were in Medford.[4] Id. at 00:11:42.

         Trooper Broome asked Mr. Aruiza-Andrade to put his wife on speakerphone so that he could speak with her. Gov. Ex. 1, at 00:11:56. Over the speakerphone, Trooper Broome told Mrs. Aruiza-Andrade that he was concerned that Mr. Aruiza-Andrade had been drinking and was not fit to drive. Id. at 00:12:07. Trooper Broome asked Mrs. Aruiza-Andrade to translate a request for Mr. Aruiza-Andrade to perform standard field sobriety tests (“FST”), but Mrs. Aruiza-Andrade was unable to translate the request. Id. at 00:12:46-00:13:03.

         Trooper Broome attempted to ask Mr. Aruiza-Andrade if he would perform the FST through a combination of verbal instructions and pantomimed gestures. Gov. Ex. 1, at 00:13:17-00:13:34. At the end of his demonstration, Trooper Broome asked “Comprende or no? Do you understand?” to which Mr. Aruiza-Andrade answered “Si.” Id. at 00:13:33-00:13:47. Trooper Broome accepted this response as consent to perform field sobriety tests.

         Trooper Broome performed the horizontal gaze nystagmus (“HGN”) test. In the HGN test, the driver must keep his head still and follow a moving object with his eyes while the officer watches for involuntary eye movements. Although Trooper Broome had some difficulty explaining, through pantomime and English, that Mr. Aruiza-Andrade should keep his head straight, Trooper Broome was eventually able to complete the HGN test. Gov. Ex. 1, at 00:13:47-00:17:05. At the hearing, Trooper Broome testified that he observed six out of six clues during the HGN, which was indicative of impairment. Trooper Broome testified that he did not ask Mr. Aruiza-Andrade to perform any of the other standard FST because of the language barrier.

         Approximately fourteen minutes after the initial stop, Trooper Broome placed Mr. Aruiza-Andrade under arrest for Driving Under the Influence of Intoxicants (“DUII”) and Failure to Carry/Present a Driver's License. Gov. Ex. 1, at 00:17:09. Mr. Aruiza-Andrade was handcuffed and Trooper Broome performed a pat-down search before placing Mr. Aruiza-Andrade in the back seat of the patrol car. During the search, Trooper Broome found a socket wrench bit in Mr. Aruiza-Andrade's pocket.

         The troopers then searched Mr. Aruiza-Andrade's pickup truck. Gov. Ex. 1, at 00:20:06-00:26:40. During the search of the vehicle, the troopers found an item connected by wires running under the dashboard. The troopers were not initially able to identify the item. When the troopers showed Mr. Aruiza-Andrade a picture of the item, he told them it was part of the truck's sound system. Id. at 00:31:10. In addition to the wiring, Trooper Broome noticed that the dashboard was not flush with its fittings, which led him to believe that the truck's dashboard had been disassembled at some point. The troopers also found a socket wrench set and a card depicting Jesús Malverde. Gov. Ex. 3, at 5. In his later search warrant affidavit, Trooper Broome affirmed that he was aware that images of Jesús Malverde are often carried by drug traffickers as “good luck charms” for “protection.” Id.

         Trooper Broome also noted that Mr. Aruiza-Andrade did not appear to have any luggage in the vehicle. Although he had not been able to learn what Mr. Aruiza-Andrade's travel plans were, Trooper Broome testified that he believed Mr. Aruiza-Andrade had been coming from somewhere in California.[5] Given the late hour and Mr. Aruiza-Andrade's apparent confusion about his location, Trooper Broome believed that Mr. Aruiza-Andrade had traveled some distance. Trooper Broome testified that he found the lack of luggage to be suspicious.

         After searching the vehicle, Trooper Broome testified that he suspected Mr. Aruiza-Andrade was involved in drug trafficking. Trooper Broome radioed dispatch to request the assistance of a K-9 officer from the nearby Central Point Police Department. Gov. Ex. 1, at 00:26:41. Trooper Broome then provided Miranda[6] warnings to Mr. Aruiza-Andrade. Id. at 00:29:48. Trooper Broome did not have a copy of the warnings in Spanish and so provided the warnings in English.

         While waiting for the K-9 officer to arrive, the troopers discussed how to proceed with their investigation. Trooper Broome decided to call another officer, Trooper Gregor Smyth, to transport Mr. Aruiza-Andrade to the station to perform a breathalyzer test while Trooper Broome continued with his roadside drug investigation. Gov. Ex. 1, at 00:31:45-33:00.

         At approximately 11:21 p.m., Central Point Police Officer Brian Munoz arrived with his drug detection dog. Gov. Ex. 1, at 00:40:30. At the hearing, Officer Munoz testified that he and the dog circled the truck and that the dog alerted to the passenger side of the vehicle. See also Gov. Ex. 1, at 00:40:48. Officer Munoz testified that he lifted the dog into the vehicle, where the dog alerted to the air vent on the passenger side. See also Gov. Ex. 1, at 00:41:38.

         After the dog alerted to the passenger side of Mr. Aruiza-Andrade's truck, Trooper Broome sought Mr. Aruiza-Andrade's permission to search the vehicle. Gov. Ex. 1, at 00:44:45. Because of the language barrier, Trooper Broome presented Mr. Aruiza-Andrade with the Oregon State Police Notice and Consent to Search Multi-Lingual Form. Gov. Ex. 2.

         The Consent to Search form is written in English and Spanish and informs the recipient that he has the right to refuse to consent to a search and that such a refusal cannot be used against him for any purpose. The form also warns that any evidence of a crime and anything subject to civil forfeiture may be seized. Under a heading marked “Consent (Motor Vehicle)” the form says:

I voluntarily consent to the search of my motor vehicle and its contents. I voluntarily consent to the seizure and analysis of evidence of any crime and to the seizure ...

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