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United States v. Salazar

United States District Court, S.D. Ohio, Eastern Division

June 25, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
WILBERTO NEMROD SALAZAR, et al., Defendants.

          OPINION AND ORDER

          EDMUND A. SARGUS, JR. CHIEF UNITED-STATES DISTRICT JUDGE

         Defendants Wilberto Nemrod Salazar and Rafael Alejandro Somarriba were travelling east on Interstate 70 when they were pulled over at a rest stop by a state trooper. Following a canine drug sniff and search, a large amount of heroin was found in Defendants' rental vehicle. Defendants have now moved to suppress any evidence obtained through that search. For the following reasons, Defendants' motions (ECF Nos. 30, 31, 48) are DENIED.

         I.

         A. Factual Background

         On July 28, 2017, Timothy Williamson, a trooper with the Ohio State Highway Patrol (now a sergeant), was parked facing eastbound traffic in a crossover on Interstate 70. (Hr'g Tr. at 3, 8, ECF No. 44; Investigation Report at 1, ECF No. 30-1.) Detective Mario Morehouse of the Lancaster Police Department was accompanying Williamson that day as a trainee. (Hr'g Tr. at 8-9, 193-94.) Williamson received a call from a colleague, Sergeant Coverstone, advising Williamson that it "would be worth taking a look at" an eastbound, black Chevy Malibu with an Arizona license plate driven by a male wearing sunglasses. (Id. at 9-10.) Coverstone was relaying information that he had received from an Indiana interdiction officer. (Id.)

         Approximately fifteen minutes after speaking with Coverstone, Williamson observed a black Malibu traveling in the eastbound right lane at a relatively slow speed. (Hr'g Tr. at 10-11, 51.) Williamson observed that the Malibu's driver, later identified as Defendant Salazar, was leaned back in his seat such that the B pillar separating the front and rear doors almost completely obstructed him from view. (Id. at 11.) As the Malibu passed in front of Williamson's cruiser, Williamson saw Salazar lean toward the passenger side of the vehicle and lift his left arm up in an apparent effort to shield his face from view. (Id. at 11-12.)

         After waiting for traffic to clear, Williamson exited the crossover and entered the eastbound right lane to follow the Malibu. (Hr'g Tr. at 12.) Not long after Williamson entered the right lane, the Malibu approached an exit ramp to a rest area. (Id.) According to Williamson, the Malibu entered the ramp "at the last minute" and, in the process, drove over the solid lines demarcating the gore.[1] (Id. at 12 13.) Morehouse also saw the Malibu drive across the solid lines. (Id. at 198-99.)

         Williamson continued following the Malibu as it entered the rest area. (Hr'g Tr. at 13-14.) The road leading to the rest area diverges into two routes after the ramp. A sign indicates that cars should keep right and that commercial trucks, cars with trailers, and larger vehicles should keep left. (Id. at 14.) Each route leads to a parking lot for the respective types of vehicles. (Id.) The Malibu drove left and parked in the lot reserved for commercial trucks and large vehicles. (Id. at 14-15.) Salazar quickly exited the vehicle and walked toward the rest area building. (Id. at 15.)

         While waiting for Salazar to return, Williamson noticed that several other cars were parked in the truck and large vehicle lot. (Hr'g Tr. at 15.) Williamson advised the occupants of those vehicles that they were improperly parked and would need to move their cars. (See Id. at 15-16; Investigation Report at 1.) After directing the other cars to move from the lot, and while still waiting for Salazar to return, Williamson parked his cruiser behind the Malibu, approached the vehicle, and knocked on the window to wake a passenger sleeping in the backseat. (Hr'g Tr. at 17.)

         The passenger, later identified as Defendant Somarriba, awoke and exited the Malibu, setting off the car alarm in the process. (Hr'g Tr. at 18.) Somarriba stated that he could not turn off the alarm because he did not have the car keys. (Id.) Moments later, Salazar came around the corner of the rest area building and saw Williamson speaking with Somarriba. (Id. at 19.) As reported by Williamson, Salazar "immediately stopped in his tracks almost with a deer-in-the-headlight look"; Salazar then "rubbed the top of his head and kind of turned away almost to go back around the building." (Id.) Salazar deactivated the car alarm using the key fob in his hand, and after Williamson waved to him, Salazar walked back to the Malibu. (Id. at 19-20.)

         As Salazar was walking back, Williamson asked Somarriba for identification, which Somarriba "nervously searched for within the vehicle." (Investigation Report at 2.) Williamson then asked Somarriba where he and Salazar were traveling. (Hr'g Tr. at 20.) Somarriba stated that they were going to New York. (Id.)

         When Salazar reached the Malibu, Williamson observed that he appeared to be nervous and uneasy. (Hr'g Tr. at 20-21.) Salazar was trembling and breathing deeply; his hands were shaking, and his heartbeat was visible through his shirt, Williamson noted. (Id. at 24.) And when Salazar shook Williamson's hand, the handshake was, according to Williamson, "very weak" and almost "standoffish." (Id. at 20.)

         Williamson informed Salazar that he was improperly parked in the truck and large vehicle area. (Investigation Report at 2.) Salazar apologized and stated that he had to use the restroom urgently. (Id.) Williamson then asked Salazar where he and Somarriba were traveling. (Id.) Salazar stated that they were going to Virginia to see a client and that they might also visit New York to do some sightseeing. (Id.) When Williamson asked where in Virginia they were going, Salazar initially stated that he did not know but then quickly indicated that they were going to Chantilly. (Hr'g Tr. at 23.) Williamson asked about Salazar's relationship with Somarriba. (Id. at 25.) Salazar responded that Somarriba was his assistant and employee. (Id.) Williamson also asked Salazar for Somarriba's name. (Id. at 26.) Salazar struggled with the question but eventually stated that his assistant's name was Alex. (See Id. at 26, 81-82.)

         Williamson noted that Salazar's nervousness persisted throughout their interactions-even after Williamson had explained to Salazar that he would likely receive only a warning. (Hr'g Tr. at 24.) And throughout their interactions, Williamson noted that there were times when Salazar would look away from him or not maintain eye contact. (Id. at 83.)

         After speaking with Salazar, Williamson returned to Somarriba. (Hr g Tr. at 27.) Williamson asked Somarriba for clarification regarding his and Salazar's travel plans. (Id. at 27-28.) Somarriba explained that they were going to Virginia and that they might stop by New York. (Id. at 28.) Williamson also asked for clarification about Somarriba's relationship with Salazar. (Id. at 29.) Somarriba initially stated that Salazar was a friend; he then said that Salazar was his boss. (Id.)

         Williamson later learned that the Malibu that Salazar was driving had been rented for him by his niece. (Hr'g Tr. at 36.) The Malibu had an Arizona license plate and had been rented from a different city than the one Salazar was traveling from. (Id. at 134; Investigation Report at 2.)

         Williamson eventually obtained driver's licenses from Salazar and Somarriba. (Hr'g Tr. at 31.) The licenses were issued by California and Arizona, respectively. (Id.)

         Before Williamson had an opportunity to run any checks on the licenses, Trooper Michael Wilson arrived with his drug detection dog, Pluto. (See Hr'g Tr. at 31-32, 34, 134.) Earlier, Williamson had called over the radio for Wilson's assistance. (Id. at 133.) Wilson assessed the scene and then informed Williamson that he was going to conduct a canine sweep of the Malibu. (Id. at 134.)

         Wilson conducted the sweep by leading Pluto counter-clockwise around the car and instructing Pluto with hand presentations to sniff the car's seams. (Hr'g Tr. at 135-36.) As Wilson walked past the passenger-side B pillar (i.e., the panel between the front and rear doors), Pluto snapped his head back toward the B pillar. (Id. at 136-37.) Pluto stopped, bracketed (i.e., smelled an area by moving his head back and forth), and positioned his body perpendicular to the car. (Id. at 137-38.) Pluto then scratched at the car, a signal he is trained to give when he detects the presence of narcotic odor. (Id. at 138.) As Wilson pulled Pluto away from the car, Pluto continued to alert to the presence of narcotic odor along the right side of the vehicle. (Id. at 143.)

         Following Pluto's positive alert, Williamson and Wilson searched the Malibu. (Hr'g Tr. at 143; Investigation Report at 2.) They found a large amount of heroin hidden in various bags and suitcases. (See Investigation Report at 2-3.)

         B. Procedural Background

         On August 10, 2017, Defendants Salazar and Somarriba were indicted for possession with intent to distribute heroin. (Indictment at 1, ECF No. 10.) Defendants subsequently filed the present motions for suppression in which they contend that the evidence against them was collected in violation of the Fourth Amendment.

         The Court held an evidentiary hearing on the suppression motions. (Mins. at 1, ECF No. 42.) Williamson, Wilson, Morehouse, and Matthew Sauer testified. (Id. at 1-3.) Williamson, Wilson, and Morehouse described the events surrounding the stop and search of Defendant's rental car. (See Hr'g Tr. at 3-200, ECF No. 44.) Sauer, a private investigator hired by Defendants, testified that he drove east on Interstate 70 and videotaped his trip as he traveled the route taken by Defendants and Williamson. (Id., at 203-04.) Sauer drove in the far right lane at a relatively slow speed and took the exit ramp leading to the rest area where the stop and search took place. (Id. at 204.) Sauer testified that it was a half a mile from the crossover where Williamson would have ...


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