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United States v. Resa

March 17, 2008

UNITED STATES OF AMERICA
v.
PETE RESA AND BETINA M. HERNANDEZ



The opinion of the court was delivered by: Harry S. Mattice, Jr. United States District Judge

Judge Mattice

MEMORANDUM AND ORDER

Before the Court is Defendant Pete Resa's Motion to Suppress [Court Doc. 39]. Mr. Resa seeks to exclude from evidence at the trial of this matter all items seized in connection with a traffic stop on October 16, 2006, which Mr. Resa contends was made without probable cause. Mr. Resa also contends that even should the Court find that the traffic stop itself was supported by probable cause, the subsequent search of the vehicle in which Mr. Resa was traveling exceeded the scope of any consent which Mr. Resa may have given, particularly insofar as the search involved destruction of portions of the vehicle's interior.

Having considered the evidence presented at the hearing of this matter and the submissions of counsel, and for the reasons set forth below, Mr. Resa's instant Motion to Suppress will be DENIED.

I. RELEVANT FACTS

An evidentiary hearing on the instant motion was held before the undersigned on August 2, 2007. Representing the Government was Assistant United States Attorney Christopher D. Poole. Representing Defendant Resa was attorney Christopher W. Lewis.

The only witness called was Eduardo Choate, formerly an interdiction officer in the drug enforcement unit of the Bradley County Sheriff's Office. A summary of the relevant testimony is as follows.

Eduardo Choate

Eduardo Choate was employed as a patrolman and later as an interdiction officer in the drug enforcement unit of the Bradley County Sheriff's Office from June of 2002 to May of 2007.*fn1 As an interdiction officer, Officer Choate was charged with enforcing traffic laws along I-75 within the borders of Bradley County, Tennessee. In accordance with those duties, Officer Choate made a stop of the vehicle in which the Defendants, Mr. Resa and Ms. Hernandez, were traveling at approximately 4:00 p.m. on the afternoon of October 16, 2006.

On that afternoon, it was raining and an AMBER Alert had been issued, instructing law enforcement officers to be on the lookout for a gold SUV traveling southbound on I-75. Accordingly, Officer Choate was in his vehicle on top of a bridge crossing I-75, and spotted a gold SUV traveling southbound without its headlights on. Because the vehicle matched the description provided in the AMBER Alert, and because the operator of the vehicle was not using the headlights in rainy weather as required by law, Officer Choate pulled his vehicle off the bridge and onto I-75 southbound and began following the gold SUV. As he caught up to the gold SUV and was able to read the license tag, he called in a computer search of the tag number and learned that the vehicle was a 2006 Toyota 4-Runner, registered to Enterprise Leasing Company of Chicago. After Officer Choate activated his emergency equipment, the gold SUV pulled to the shoulder of I-75. Officer Choate approached the passenger side of the vehicle and advised the driver, Mr. Resa, that he was being pulled over because his headlights were not turned on in rainy weather. Mr. Resa responded that his headlights were indeed on, and pointed to the dashboard of the vehicle. Officer Choate observed the headlight indicator on the dashboard, which did indicate that the headlights of the vehicle were on. Checking again, however, Officer Choate determined that, notwithstanding the dashboard indicator, neither the headlights nor the taillights of the vehicle were operating.*fn2

Following this initial exchange, Officer Choate asked the occupants of the vehicle some routine questions about their driver's license status and about the ownership of the vehicle. Although Mr. Resa could produce a driver's license and provided Officer Choate with a rental agreement,*fn3 Officer Choate found it curious that neither of the occupants of the vehicle could answer very basic questions about how they came to be in possession of it. The rental agreement indicated that the renter of the vehicle was "R. Walkin", which was different from the name on the driver's license which Mr. Resa produced. Officer Choate testified that the Bradley County Sheriff's Department had received several complaints from car rental agencies, such as Enterprise, about individuals who were not authorized to be drive rental vehicles under the terms of the rental contract but were stopped driving rental vehicles.

As Officer Choate pressed both Mr. Resa and Ms. Hernandez further about the circumstances under which they came to be in possession of the vehicle, Mr. Resa attempted to explain that he had taken a flight from Dallas to Chicago to see his uncle. He then intended to drive the rental vehicle to Atlanta. Ms. Hernandez, on the other hand, told Officer Choate that she and Mr. Resa had driven to Chicago in her vehicle, but once they arrived in Chicago, her vehicle had developed brake problems, and it was necessary for them to rent the car in which they were traveling to go to Atlanta. As Officer Choate questioned Mr. Resa and Ms. Hernandez separately, he made several attempts to try to reconcile their stories about the circumstances under which they had come to be in possession of the gold SUV. Despite such attempts, their stories became increasingly divergent and confusing, and Officer Choate became suspicious that Mr. Resa and Ms. Hernandez were lying to him. Officer Choate testified that his suspicions were further aroused by the Defendants' reference to the cities of Dallas, Chicago, and Atlanta. Based on his training and experience as a narcotics enforcement officer, Officer Choate was aware that all of those cities were known as major drug distribution points. In view of these developments, Officer Choate decided to contact his partner to assist him. He also contacted the Blue Lightning Operations Center (or "BLOC") to try to learn more information about the vehicle in which Mr. Resa and Ms. Hernandez were traveling.

After calling for back-up by his partner and running a check with BLOC, Officer Choate told Mr. Resa of his suspicions and ask for permission to search the vehicle and all of his (Mr. Resa's) belongings inside the vehicle. Mr. Resa granted Officer Choate permission to search. Separately, Ms. Hernandez also gave her consent to a search of the vehicle and her belongings in the vehicle. According to Officer Choate, he advised both Ms. Hernandez and Mr. Resa that he was searching for drugs, U.S. currency, and firearms or any other illegal contraband which might be in the vehicle.

Officer Choate testified that, based on his training and experience as a narcotics investigator, he tended to look for a "natural void" in a vehicle that could be used to conceal contraband. On the date in question, Officer Choate noticed that the rear door of the vehicle could not be opened. Officer Choate then re-checked the rental agreement and noted that it reflected that there was a defective rear cargo door and window on the vehicle. Officer Choate's suspicions were thus further aroused, because he thought it curious that such a relatively new vehicle would be rented by Enterprise with such a major malfunction. Officer Choate then noticed the notation of the defective rear cargo door and window seemed to be written in a different type ink from the other writing on the rental agreement. Inspecting more closely, and after removing some of the rear seats in the vehicle in order to access its rear compartment other than through the defective rear cargo door, Officer Choate and his partner found indications that the rear cargo door had been tampered with. Delving further into the vehicle, Officer Choate and his partner removed some interior fittings and foam insulation inside the rear cargo door and ultimately discovered several packages of methamphetamine.

In his testimony, Officer Choate described a kit of instruments and equipment used at that time by the Bradley County Sheriff's Department in the inspection and investigation of vehicles suspected of concealing narcotics or other contraband. The kit itself was referred to as the "Scope." It contained devices such as the "Canine Buster" and a density meter. Officer Choate described the operation of the density meter. Upon being placed on the outside walls of a vehicle or tires, it will register the thickness, or density, of the walls of what might appear to be an empty compartment. Officer Choate testified that he had received training in the use of this equipment while employed by the Bradley County Sheriff's Department. Officer Choate also testified that the instruments in the Scope kit, including the density meter, had been used numerous times in other traffic stops by him and by other employees of the Sheriff's Department.

Officer Choate testified that on the date in question he had used the density meter on the rear compartment of the vehicle before deciding to disassemble it. Based on the readings of the density meter, Officer Choate determined that the rear compartment registered an unusually thick density from what would normally be expected. He also testified that on the same date he had used a calibration device to establish that the density meter was working properly.

On cross-examination, Officer Choate testified that the license tag of the vehicle in which Mr. Resa and Ms. Hernandez were traveling was issued by the State of Illinois. He could not recall whether the AMBER Alert on the date in question had indicated that the tag of the gold SUV which was the subject of the Alert was from Illinois. He stated, however, that he stopped the vehicle in which the Defendants were traveling not only because of its similarity to the vehicle described in the AMBER Alert, but also because it was raining and, according to Officer Choate's interpretation of Tennessee law, the weather conditions required the vehicle to have its headlights on.*fn4

Officer Choate also testified that based on the description of the vehicle in the AMBER Alert, he probably would have attempted to stop every gold SUV that he saw traveling southbound on I-75 on the date in question. He determined that it was not the vehicle identified in the AMBER Alert only after he reviewed the ...


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