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United States v. Fender

United States District Court, D. North Dakota

February 6, 2018

United States of America, Plaintiff,
v.
Selica Jane Fender, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO SUPRESS EVIDENCE

          Daniel L. Hovland, District Judge United States District Court

         On October 18, 2017, Selica Jane Fender was charged in an indictment with the offenses of conspiracy to possess with intent to distribute and distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2 and possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. See Docket No. 20. On November 19, 2017, Fender filed a motion to suppress evidence. See Docket No. 28. On November 20, 2017, Fender filed an amended motion to suppress evidence. See Docket No. 30. In the suppression motion, Fender seeks to suppress physical evidence seized during the search of a vehicle she was driving and statements made by Fender to law enforcement. The Government filed a brief in opposition to the motion on December 7, 2017. See Docket No. 39. An evidentiary hearing was held on February 2, 2018, in Bismarck, North Dakota. See Docket No. 47. For the reasons set forth below, the Court denies the motion to suppress.

         I. BACKGROUND

         On October 10, 2017, McLean County Deputy Sheriff Justin Cote-Kanning stopped a Honda Accord bearing California license plates driving north along Highway 41 in rural North Dakota. At the suppression hearing, Deputy Cote-Kanning testified he stopped the vehicle because the vehicle crossed the fog line of the highway. When Deputy Cote-Kanning approached the vehicle, he indicated to the driver, later identified as Fender, that he stopped the vehicle because the vehicle “crossed the line back there.” See Docket No. 38. Fender responded to Deputy Cote-Kanning by apologizing and indicated she had been washing her face. Deputy Cote-Kanning then requested Fender produce her license, vehicle registration, and proof of insurance. Deputy Cote-Kanning then asked Fender where she was coming from and where she was going. Fender responded and indicated she was traveling from California to Belcourt, North Dakota. While searching for documents, Fender also stated the vehicle belonged to a friend. Deputy Cote-Kanning then informed Fender that as long as everything came back clear he would only issue her a written warning. See Docket No. 38.

         Deputy Cote-Kanning testified that Fender was extremely nervous, with shaky hands, during their brief initial interaction. In fact, on the dash camera recording, Deputy Cote-Kanning can be heard saying “She is extremely nervous.” See Docket No. 38. Deputy Cote-Kanning then returned to Fender's vehicle and issued her a warning for care required. After doing so, Deputy Cote-Kanning stated he had a couple of questions and inquired whether Fender had anything illegal in the vehicle, such as guns, knives, narcotics, or large sums of cash. Fender responded by stating none of those items were in the vehicle. Deputy Cote-Kanning than asked if he could search the vehicle and Fender responded “Go ahead.” Fender proceeded to get out of the vehicle and move toward the patrol vehicle, where Deputy Cote-Kanning conducted a pat down for weapons and requested Fender remove the contents of her pockets. Deputy Cote-Kanning then asked Fender to remain near the patrol vehicle while Deputy Cote-Kanning searched the vehicle for approximately eight (8) minutes, including a search of the trunk and under the front hood. At one point during the search, Fender instructed Deputy Cote-Kanning how to access the trunk. While conducting his search, Deputy Cote-Kanning also searched the contents of several bags and suitcases located in the trunk of the vehicle. From her location, Fender was able to watch Deputy Cote-Kanning search the vehicle, but at no point did Fender object to Deputy Cote-Kanning's search.

         After he completed the vehicle search, Deputy Cote-Kanning approached Fender and inquired further about Fender's trip from California to North Dakota. Specifically, Deputy Cote-Kanning asked Fender who she was going to see in Belcourt. Fender responded that she was on her way to a friend's baby shower. Deputy Cote-Kanning then asked Fender the name of her friend, but Fender could not remember her friend's name, despite that she had been driving for at least two days, cross-country for the event. While trying to remember the name of her friend, Fender explained she was actually friends with the husband or boyfriend of the pregnant friend. Deputy Cote-Kanning then asked if Fender knew where her friend lived. Fender stated her friend lived in Belcourt and she was going to the casino to meet her friends. Deputy Cote-Kanning then proceeded to question Fender about her travel plans, including where she planned to stay while in North Dakota, how long she planned to stay in North Dakota, when and where the baby shower was scheduled, ownership of the vehicle, and her employment in California. After approximately seven (7) minutes, Deputy Cote-Kanning told Fender another law enforcement officer would be arriving soon and would likely have some questions for her. In the interim, Deputy Cote-Kanning told Fender her story was “not sounding appropriate, at all.” See Docket No. 38.

         While Deputy Cote-Kanning was asking Fender about the purpose and details of her travel to North Dakota, Deputy Hulm arrived. Shortly after the arrival of Deputy Hulm, while Deputy Cote-Kanning was asking Fender about her travel plans, Fender became somewhat agitated and asked Deputy Cote-Kanning whether he thought she was lying. Deputies Cote-Kanning and Hulm responded to Fender by stating that they were trying to understand Fender's story. Shortly thereafter, Detective Krohmer arrived, asked Fender a few questions about her travels, and then asked whether they could take a look at the vehicle. Fender indicated the officers could search the vehicle. During the second search of the vehicle, Deputy Hulm stood with Fender, conversed with her, and continued to ask her general questions while Detective Krohmer and Deputy Cote-Kanning searched the vehicle. Eventually, a Detective Matties arrived at the scene. Detective Matties joined other law enforcement officers in the search of the vehicle. During the search of the vehicle, Detective Matties picked up a plastic bag, walked over to Fender, and asked, “What was in here?” It is unclear from the dash camera video whether Fender responded to the question. Detective Krohmer also asked Fender several questions while he searched the trunk of the vehicle. Again, it is unclear from reviewing the dash camera video what Fender's response was.

         Deputy Cote-Kanning testified that while he was searching the vehicle, while he had the backseat of the car down, he located a loose piece of felt fabric. It appeared to be covering a compartment that was not accessible through the truck. Deputy Cote-Kanning lifted the fabric and located a secret compartment containing what looked like narcotics. Contemporaneous to the location of the secret compartment, Detective Matties approached Fender, stating “Here's the deal, kid.” He then explained to Fender what the officers located as a result of their search. After doing so, Detective Matties then asked Fender questions, which are inaudible on the dash camera recording, with reference to the likely narcotics found in the car. Fender responded to the questioning with “I have no idea” several times. Detective Matties returned to searching the vehicle but then again came back to Fender and began asking her further questions before handcuffing her and advising her she was under arrest for attempted distribution of methamphetamine in North Dakota, and advised Fender of her Miranda rights. The law enforcement officers located 22.69 lbs. of methamphetamine and 2.15 lbs. of marijuana in the car.

         Fender was eventually charged in an indictment with the offenses of conspiracy to possess with intent to distribute and distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2 and possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. See Docket No. 20. Fender filed the suppression motion before the Court on November 20, 2017. See Docket No. 30. In the motion, Fender seeks the suppression of evidence obtained during the search of the vehicle and statements made to officers on October 10, 2017. Fender specifically asserts the evidence and statements should be suppressed because (1) the initial stop of the vehicle was without probable cause or reasonable suspicion of criminal activity; (2) Fender's initial consent to search the vehicle was unreasonable; (3) Fender's consent to the second search of the vehicle was not voluntary, was without intelligent consent, and was the product of duress and coercion; (4) the duration and method of search, along with the detention of Fender constituted a seizure, amounted to an arrest, or otherwise made any consent involuntary and the product of coercion and duress; (5) Fender was subjected to custodial interrogation without the benefit of a Miranda warning in violation of her constitutional rights. See Docket No. 30, pp. 2-3.

         II. LEGAL DISCUSSION

         In her motion to suppress evidence, Fender contends law enforcement officers conducted an unlawful stop of her vehicle on October 10, 2017, and conducted an unlawful search of her vehicle because Fender's consent to search the vehicle was not voluntary. Fender also contends the officers subjected her to a custodial interrogation in violation of Miranda.

         A. TRAFFIC STOP

         Fender first contends probable cause did not exist for Deputy Cote-Kanning to stop the vehicle she was driving on October 10, 2017. It is well established in the Eighth Circuit that “a traffic violation - however minor - creates probable cause to stop the driver of a vehicle.” United States v. Linkous, 285 F.3d 716, 719 (8th Cir. 2002). Even if the traffic stop is a pretext for another investigatory purpose, a traffic violation still creates probable cause. Id. Here, the recording from Deputy Cote-Kanning's dash camera clearly demonstrates the vehicle Fender was driving touched the fog line along the highway multiple times and crossed the line at one point while Deputy Cote-Kanning was following the vehicle. When Fender was informed by the officer why he had stopped the vehicle, she responded and apologized, stating she has been washing her face. Based upon such undisputable evidence, it is clear to the Court that Deputy Cote-Kanning had a reasonable, articulable suspicion that a traffic law was violated and, therefore, his initial traffic stop of Fender was valid.

         B. CONSENT ...


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