United States District Court, D. Montana, Billings Division
OPINION AND ORDER
P. WATTERS UNITED STATES DISTRICT JUDGE.
the Court is Defendant Porfirio Carillo Rea's motion to
suppress evidence seized from his vehicle after a traffic
stop. (Doc. 20).
following facts are taken from Officer Tanner Gomke's
bodycam video and the hearing testimony.
late evening of September 13, 2018, Sidney Police Officer
Tanner Gomke was patrolling traffic on North Central Avenue
in Sidney, MT, when a white mid-size SUV with a headlight out
drove past. Officer Gomke pulled behind the vehicle and
initiated a traffic stop. The vehicle had Nevada plates.
Gomke approached the vehicle on foot from the passenger side
and knocked on the window. When the driver rolled down the
window, Officer Gomke told him he pulled him over because he
had a headlight out. The driver looked a little surprised and
said it must have just happened. The driver had a heavy
accent, possibly Hispanic. Officer Gomke asked how he knew it
just happened and the driver explained he had just filled up
on gas and the headlight was fine. Officer Gomke replied,
"Ok, sounds good. Well, it's just going to be a
warning tonight, no tickets, ok?" After asking if there
were any weapons in the vehicle, to which the driver said no,
Officer Gomke asked for the driver's license and
registration. The driver handed Officer Gomke his
driver's license, insurance, and registration.
inspecting the documents, Officer Gomke began questioning the
driver. "What brings you to Sidney," he asked. The
driver responded, "I'm going to Williston."
"Going to Williston? Ok, what do you do in Williston,
exactly," Officer Gomke asked. "I'm going to
work for a friend," the driver said. "Does he own
the business, or what exactly, what company" Officer
Gomke inquired. "No," the driver said, adding
"he works for a company." "Oh ok, what company
is it," Officer Gomke pressed. The driver couldn't
remember the name of the company, but asked "Can I call
him?" Officer Gomke said, "I was just kind of
curious what company it was." The driver responded again
he couldn't remember the name. Officer Gomke asked,
"How long have you known your friend?" The driver
replied, "My friend? I've known him three, four,
five years. He's the father of my stepdaughter."
"Oh ok, what's his name," Officer Gomke asked.
"Jesus Rico," the driver said. "Ok, sounds
good," Officer Gomke said, before adding, "Where
are you living these days there-how do you say your first
name ... Porfirio-Where are you living these days, what's
your current address?" Porfirio provided a Las Vegas
address and phone number.
taking down Porfirio's contact information, Officer Gomke
resumed his questioning. "So you don't know the
company where you're going to be working," he asked.
"I don't remember the name," Porfirio replied.
"Well, have you guys been talking about this,"
Officer Gomke asked. "He just gave me the invitation to
come to work," Porfirio answered. "Oh, ok, sounds
good. So what exactly do you do for work there," Officer
Gomke quizzed. "He's concrete, he's a foreman,
and I'm going to be doing forms," Porfirio said.
"Oh, ok, sounds good. Alright, sir, so what I'll do,
I'll just have you go ahead and hop out of the vehicle
and come back, come speak to me at my vehicle, ok,"
Officer Gomke ordered.
exited the vehicle and Officer Gomke asked again if he had
any weapons, to which Porfirio again said no. Officer Gomke
directed Porfirio to stand at the front of the squad car.
Officer Gomke retrieved his computer from inside the squad
car and placed it on the hood. Porfirio was standing at the
front of the squad car, as directed, with his hands in his
pockets. Officer Gomke requested Porfirio to take his hands
out of his pockets, so Porfirio placed his hands on the hood.
Officer Gomke advised him, "You can relax, I just want
you to stand at the front of the vehicle." Porfirio
removed his hands from the hood, crossed them across his
chest, and asked if that was ok. Officer Gomke said
"Yep, you're good."
Officer Gomke began typing information into the computer, he
began questioning Porfirio again. "So, you said
you're going to Williston, huh," Officer Gomke
began. "Yes, sir," Porfirio said. "What time
did you leave, when did you leave from Vegas," Officer
Gomke asked. "Four o'clock in the morning,"
Porfiro replied. "Four o'clock? Ok. How long of a
drive is it," Officer Gomke said. "It's about
maybe 20 hours, and right now, what, so far, it's been
17, 18," Porfirio said, and continued, "I'm
making fifteen dollars an hour, in Vegas, and I got an offer,
just for labor, nineteen dollars an hour, so, I came to try
it." "Did he tell you exactly what else you're
going to be doing besides forms," Officer Gomke asked.
"Just setting forms, and I work on my own doing
landscaping, so probably that's another option,"
Porfirio responded. "Ok. So, do you have any tools with
you in the vehicle," Officer Gomke inquired. "No
sir, they are going to provide the tools," Porfirio
said, adding, "I've never worked setting forms
before." "You've never done forms before,"
Officer Gomke asked. "No, but what I did all the time,
was landscape," Porfirio said.
point in the questioning, Officer Gomke opened Google on the
laptop and searched the distance between Las Vegas and
Sidney. Ten to fifteen seconds of silence passed. Porfirio
broke the silence by offering, "You're going to see
I'm paying tickets, that's probably what's,"
before Officer Gomke interrupted, "What are you paying
tickets for?" Porfirio explained he had a speeding
ticket and a jay walking ticket out of Las Vegas he was
working to pay off. A few more seconds of silence passed,
then Officer Gomke resumed questioning Porfirio about his
work. "So, how did you get hooked up with your buddy
there, how did he tell you about the job, or can you tell me
more about that" he said. "He called his ex-wife,
with the daughter, and he said how are you going to work, I
said sometimes I work, sometimes not, and he said, if you
want to work you are going to drive, well, maybe I can for a
couple of weeks and see how much they pay," Porfirio
ten to fifteen more seconds of silence passed, Officer Gomke
started up again. "So besides traffic stuff, have you
ever been in trouble before," he asked. "No
sir," Porfirio replied. "Nothing at all? Anything
for like, criminal mischief... like breaking a window,"
Officer Gomke questioned. "No sir, never, never,"
Porfirio responded. "What about for disorderly conduct,
or anything like that," Officer Gomke inquired.
"No, no," Porfirio said. "Have you ever been
on probation or parole, or anything like that," Officer
Gomke persisted. "No sir, no, I'm sixty years old,
I'm not making those kind of problems," Porfirio
answered. "Alright, sounds good, I'm just going to
get a warning typed up for you real quick, ok," Officer
Gomke stated. Officer Gomke then explained that Porfirio may
get pulled over again by other officers working that night,
but if that happened, to show the officer the warning and
explain he'd already been stopped for the headlight
issue. Porfirio asked if there was anywhere he could stop for
a few hours until an auto parts store opened, and Officer
Gomke told him the gas station Porfirio had recently stopped
at sold headlights, although they may not have the specific
headlight he needed.
Gomke asked for Porfirio's physical characteristics, such
as height, weight, and hair and eye color, and Porfirio
provided the information. Then, for a sixth time, Officer
Gomke's questions began again. "So you don't
know the company you're going to be working for," he
asked. "No, sir," Porfirio replied. "Is it his
business," Officer Gomke said. "No, it's a big
company," Porfirio answered. "It's a big
company, ok, do you have it on your phone where he talked
about it," Officer Gomke pushed. "No, no, we just
were talking, he's kind of high level, he's going, as
soon as I get there, I'm going to start working, he said
they are working too many hours, 16, 19, if you came, you can
work more hours, but, you know, the most I can work is
probably 16 hours," Porfiro responded.
Gomke pushed a little further this time. "Ok, I just
think it's kind of weird, you're driving twenty hours
to work somewhere and you don't know where exactly
you're going to be working," he stated. "I just
listened to what he told me," Porfirio said. "Ok,
sounds good. Did you guys ever talk about it on your phone or
anything," Officer Gomke asked again. "I don't
have it on right now, I'm trying, it's been real hard
for me, is it straight? Williston? I tried to call him many
times/' Porfirio replied. "How do you know your
directions, do you have it on GPS, do you have a map,"
Officer Gomke asked. "I just follow the signs,"
Porfirio answered. "Ok, alright, I got to get back in my
car and print this warning out so just go ahead and hang out
there, ok," Officer Gomke said. Officer Gomke briefly
went inside his squad car and re-emerged with a printed
warning. "Alright, so once I give this back to you,
you're free to leave, I just have to explain ...