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United States v. Rea

United States District Court, D. Montana, Billings Division

June 25, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PORFIRIO CARILLO REA, Defendant.

          OPINION AND ORDER

          SUSAN P. WATTERS UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant Porfirio Carillo Rea's motion to suppress evidence seized from his vehicle after a traffic stop. (Doc. 20).

         I. Facts

         The following facts are taken from Officer Tanner Gomke's bodycam video and the hearing testimony.

         In the 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.

         Officer 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.

         While 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.

         After 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.

         Porfirio 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."

         As 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.

         At this 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 replied.

         After 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.

         Officer 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.

         Officer 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 ...


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