Submitted, June 26, 2013
Appeal from United States District Court for the District of Nebraska -- Omaha.
For United States of America, Plaintiff - Appellee: Nancy A. Svoboda, U.S. Attorney's Office, Omaha, NE.
For Carlos Martins, Claimant - Appellant: Joseph Leo Howard, Dornan & Lustgarten, Omaha, NE.
Before RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges. RILEY, Chief Judge, dissenting.
MELLOY, Circuit Judge
Carlos Martins appeals the district court's order denying his post-trial motion to suppress evidence obtained as the result of a traffic stop. For the reasons set forth below, we hold that the traffic stop was unconstitutional and that the district court
erred by not suppressing the evidence. Accordingly, we reverse.
On August 2, 2010, canine officer Deputy David Wintle saw Martins traveling west on Interstate 80 (" I-80" ) outside of Omaha, Nebraska. Deputy Wintle began following Martins and initially was unable to read the issuing state's name (Utah) on the license plate affixed to Martins's vehicle. Martins then made a series of lane changes and subsequently exited the highway. Deputy Wintle also exited and pulled over Martins for violating Nebraska Revised Statute § 60-399(2), which provides as follows:
All letters, numbers, printing, writing, and other identification marks upon such [license] plates and [registration] certificate shall be kept clear and distinct and free from grease, dust, or other blurring matter, so that they shall be plainly visible at all times during daylight and under artificial light in the nighttime.
It was later determined that Martins had a back-up camera mounted near the top of his rear license plate.
During the traffic stop, Deputy Wintle had to ask Martins several times to sit in his squad car with him while he processed paperwork before Martins complied. While in the squad car, Martins did not want to talk with Deputy Wintle or answer Deputy Wintle's questions and appeared " argumentative" (though it is uncontested that Martins never posed a physical threat to Deputy Wintle). After all business relating to Martins's license plate was completed, and after Deputy Wintle returned Martins's driver's license and vehicle-registration papers to him, Deputy Wintle refused to allow Martins to leave the squad car. Deputy Wintle found it unusual that Martins, as an interstate traveler just passing through Nebraska on his way home to Utah, took the exit that he did because that exit does not provide easy access to fuel and other customary road-trip services and amenities. Deputy Wintle told Martins to " just sit tight" while he took his drug dog, Kubo, to sniff the exterior of Martins's vehicle. Kubo " alerted" at the rear of the vehicle and, after Deputy Wintle led him around to the other side, " indicated" at the passenger's side. This initial sniff took no more than two minutes. Deputy Wintle then called for assistance and subsequently conducted a full search of Martins's vehicle after a second officer arrived at the scene.
Deputy Wintle found the following items inside Martins's vehicle: a small rubber-banded bundle of money and loose cash in the pocket of a door; a sleeping pad in the back seat; two coolers that Deputy Wintle perceived as smelling of raw marijuana; and two vacuum-sealed bags of rubber-banded bundles of cash stored in a lock-box inside a factory-made storage area of the vehicle. The cash inside the vacuum-sealed bags totaled $45,000.00. No marijuana or other drugs were found.
Deputy Wintle seized the $45,000.00 and transported it back to the local sheriff's office where law-enforcement officers put Kubo through a series of tests. First, officers placed circulated and uncirculated money behind lockers; Kubo did not react. The officers then put the seized money in a locker and Kubo " indicated" at the locker where the money was hidden. Based on
Kubo's reactions and Deputy Wintle's observations of Martins's behavior during the traffic stop and the contents of Martins's vehicle, the government suspected that the seized money was connected to drug trafficking and instituted a civil in rem forfeiture lawsuit against the currency. Martins, however, was not charged with any crime.
Prior to the forfeiture trial, Martins moved to suppress evidence obtained from the traffic stop. At a suppression hearing before a magistrate judge, Deputy Wintle testified on direct examination that he was not able to read Martins's license plate until after he exited I-80 and was stopping Martins:
Q: . . . During the time that you're following [Martins] and up to the point where the two of you are stopped, have you . . . been able to see the plate more clearly?
A: No, [be]cause I never really get close enough to him until the final traffic stop and that's when I get rather close to vehicles.
Q: Okay. When were you able to determine then what state the plate was from?
A: I'm not sure of the exact one. I know I advised my dispatch that it was a Utah plate, and it was--it was kind of a--a guess as to the way the letters were shaped that it--what I was seeing that it could be a Utah. . . .
Q: When did you tell your dispatch that?
A: As the vehicle was stopping, as I'm making the stop.
Suppression Hr'g Tr. 16-17, Jan. 10, 2012.
Based on the above testimony, the magistrate judge determined that Deputy Wintle had probable cause to believe that Martins was violating § 60-399(2) and recommended denying Martins's motion to suppress the evidence. The district court agreed and adopted the magistrate judge's recommendation in its entirety. Specifically, the district court adopted the following factual finding: " The [traffic] stop occurs somewhere on the exit . . . to West Center Road from I-80 and at that time--or approximately at that time it becomes known to [Deputy Wintle] that he is dealing with a Utah plate or what he has suspicion to be a Utah plate and that's communicated with the dispatcher." Id. at 51 (emphasis added). The district court further stated the following regarding Deputy Wintle's basis for stopping Martins: " Deputy Wintle . . . stopped Martins's vehicle because Deputy Wintle could not read the license plate on the rear of the vehicle . Specifically, Deputy Wintle was unable to determine which state issued the plate." (Emphasis added.)
At the subsequent bench trial, Deputy Wintle testified differently regarding his ability to read Martins's license plate prior to stopping Martins:
(On direct examination)
Q: . . . What, if anything, drew your attention to [Martins]?
A: When I observed his vehicle, I couldn't read his license plate. It had a--sort of a backup video camera mounted to the top of the plate that was obstructing the plate. I had to get close to the vehicle before I could actually see what state the vehicle was from.
Q: So did you do that?
A: Yes, I did.
Q: And how did you go about doing that, Deputy?
A: I just accelerated up and drove up close to him.
Q: Okay. So you're driving next to him side by side?
A: Yes. I didn't drive--I don't believe I actually drove up beside him but came within a hundred feet of him to see the plate.
Trial Tr. 13-14, Nov. 16, 2012.
Q: You indicated on your direct testimony, sir, that you stopped [Martins's] vehicle as he was suspiciously exiting I-80; is that correct?
A: I stopped him for an obstructed license plate; but his leaving Interstate 80 raised some suspicions with me, yes.
Q: You indicated on your direct testimony that you had to get within a hundred feet in order to read the license plate; is that right?
Q: And after you were able to read the license plate, he--I'm not trying to put words in your mouth, but he abruptly exited the highway?
A: I wouldn't say abruptly. Basically in a mile period he changed four lanes of traffic, so not abruptly, but it was a continuous lane change.
Q: So, as you're monitoring him, in your mind, this is a vehicle which is obviously out of place; is that correct?
A: I don't know if I understand what you mean by out of place.
Q: Strike that question, if I may. You recognize that this is a vehicle heading west with Utah plates; is that correct?
Id. at ...