United States District Court, D. Montana, Butte Division
For Angel Iturbe-Gonzalez, Defendant: John Rhodes, LEAD ATTORNEY, FEDERAL DEFENDERS OF MONTANA - Missoula Branch, Missoula, MT.
For USA, Plaintiff: Tara J. Elliott, Timothy J. Racicot, LEAD ATTORNEYS, OFFICE OF THE U.S. ATTORNEY, Missoula, MT.
Dana L. Christensen, Chief United States District Judge.
Before the Court is Defendant Angel Iturbe-Gonzalez's motion to suppress. For the reasons explained, the Court denies the motion.
In September 2014, Iturbe-Gonzalez was indicted for Conspiracy to Distribute Controlled Substances in violation of 21 U.S.C. § 846 and Possession with Intent to Distribute Controlled Substances in violation in 21 U.S.C. § 841(a)(1). Trial is scheduled for April 27, 2015.
At approximately 5:15 p.m. on April 14, 2014, Montana Highway Patrolman Daniel S. Amundson (" Trooper Amundson" ) pulled over a vehicle for suspected speeding in a construction zone. The vehicle was a silver Mitsubishi Endeavor, an SUV, with Washington plates. The posted speed limit was 45 MPH and Trooper Amundson's radar clocked the Mitsubishi's speed at 56 MPH. Trooper Amundson approached the Mitsubishi on the right. There was one male occupant driving the vehicle. Trooper Amundson informed the driver of the reason for the stop and asked the driver, subsequently identified as Angel Iturbe-Gonzalez, for his driver's license, registration and proof of insurance. Trooper Amundson observed that the inside of the vehicle was clean, there were clothes hanging in the back seat that consisted of clean button down shirts and urban type casual clothing, and in the back cargo area there were two suitcases, clean workout clothes, and athletic shoes. Trooper Amundson asked if Iturbe-Gonzalez was the owner of the vehicle and Iturbe-Gonzalez responded that he was and that he had purchased it a couple of months prior. Trooper Amundson directed Iturbe-Gonzalez to return to his patrol car with him, as was his custom.
Iturbe-Gonzalez exited the Mitsubishi, shook hands with Trooper Amundson and then entered the patrol car. He sat in the front passenger seat with Trooper Amundson in the driver's seat. Iturbe-Gonzalez's English was imperfect, but conversational.
In the patrol car, Trooper Amundson examined the documents given to him by Iturbe-Gonzalez, which consisted of an expired California driver's license application, a driver's license out of the Mexican State of Baja California, a registration receipt for the Mitsubishi listing Francisco Mercado as the registered owner of the vehicle, and a Progressive proof of insurance card for the vehicle listing Francisco Mercado and Julia Cadena as the insureds. After some brief friendly conversation, Trooper Amundson explained that he was going to issue a warning to Iturbe-Gonzalez for speeding.
Trooper Amundson then began working on the warning card. Trooper Amundson asked Iturbe-Gonzalez where he was coming from and going to. Iturbe-Gonzalez responded that he was coming from Seattle and headed to " Dakota" for work. (Ex. I at 5 min.) Trooper Amundson asked what kind of work Iturbe-Gonzalez was going to do in Dakota. Iturbe-Gonzalez responded that he was going to do construction. Trooper Amundson asked what kind of construction work Iturbe-Gonzalez specialized in, and Iturbe-Gonzalez said that he didn't specialize in anything but could do most any kind of construction work. Iturbe - Gonzalez also stated that he has a degree in nutrition and personal training and that is the kind of work he prefers. Trooper Amundson asked if Iturbe-Gonzalez had ever traveled to Dakota before. Iturbe-Gonzalez explained that this was his first time. Trooper Amundson asked where in Dakota he was traveling to, and Iturbe-Gonzalez explained that he did not know, but that the address was in his phone. Trooper Amundson asked if Iturbe-Gonzalez had a work visa or if he was a U.S. citizen. Iturbe-Gonzalez replied no, but that his wife was a U.S. citizen. Trooper Amundson asked if he had tried to get his Washington driver's license renewed and Iturbe-Gonzalez said no. Trooper Amundson then asked who owned the Mitsubishi and Iturbe-Gonzalez explained that the registered driver, Francisco Mercado, is his friend and that he purchased the vehicle from Mercado about two months prior. This exchange inside the patrol car while Trooper Amundson worked on the warning card and before he requested a records check from dispatch took approximately five minutes. The exchange was casual in tone, with some interspersed conversation about Iturbe-Gonzalez's interest in body building and mixed martial arts.
Trooper Amundson then requested a records check on Iturbe Gonzalez from dispatch. The wait for the return on the records check took approximately 10 minutes. While waiting on the return from dispatch, the two continued to converse. Trooper Amundson asked where Iturbe-Gonzalez grew up, and Iturbe-Gonzalez said that he grew up in Mexico City. Trooper Amundson asked what kind of work Iturbe-Gonzalez did in Seattle, and Iturbe-Gonzalez responded that he worked general construction. Trooper Amundson asked if Iturbe-Gonzalez had a wife, and he responded that he has a wife and two kids. Trooper Amundson asked if Iturbe-Gonzalez had any tools for construction, and Iturbe-Gonzalez said that he didn't have any tools because his friend in Dakota said that he didn't need any. Trooper Amundson asked how long Iturbe-Gonzalez planned to stay in Dakota. Iturbe-Gonzalez responded that he planned to stay for at least two months.
Trooper Amundson then received a phone call from dispatch. He asked that Iturbe-Gonzalez step out of the patrol car and return to his Mitsubishi. Iturbe-Gonzalez complied and Trooper Amundson answered the call. Dispatch explained that it had no information on the vehicle but that Iturbe-Gonzalez had a prior arrest in California in December of 2012 for felony possession of controlled substance for sale, possession of controlled substance while armed, and that he had been released pending further investigation. Dispatch asked if he wanted any assistance. Trooper Amundson indicated that he might call county to see if a drug dog could assist.
Trooper Amundson then called local dispatch for a county K-9. While on the radio with county requesting a K-9, his cell phone rang, but the call did not go through. Dispatch then contacted Trooper Amundson again, and provided more details about the location of Iturbe-Gonzalez's prior arrest in California. Approximately forty seconds later, while Trooper Amundson was printing paperwork for the warning card, Trooper Amundson's cell phone rang again. It was Gallatin County Sherriff's Deputy Dave Johnson calling to say that he was free and could bring a K-9. Trooper Amundson explained that he had pulled someone over who said that he was headed from Washington to North Dakota but didn't have a lot of details about why he was going there and that he also had a recent arrest for trafficking, felony possession, and being armed. Trooper Amundson explained his location and stated that he might not need the K-9, and that he would contact him again if he felt he needed the K-9. Deputy Johnson offered to come anyway. Attending to this various business with dispatch, Deputy Johnson, and printing took Trooper Amundson approximately three minutes.
Trooper Amundson then exited the patrol car and asked that Iturbe-Gonzalez join him by the patrol car. Trooper Amundson handed Iturbe-Gonzalez the warning card and returned Iturbe-Gonzalez's driver's license, registration, and insurance card. He told him to pay closer attention to the signs and to have a safe trip. The two shook hands again, and Iturbe-Gonzalez said that it was nice to meet Officer Amundson. Officer Amundson asked if Iturbe-Gonzalez was driving all night in order to get to his destination that night. Iturbe-Gonzalez explained that he did not drive at night. Trooper Amundson asked if Iturbe-Gonzalez was going to get a room. ...