IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

CASE NO. xxxxxxxxxxxxxxxxxx

UNITED STATES OF AMERICA,

Plaintiff,

V.

xxxxxxxxxxxxxxxx,

and xxxxxxxxxxxxxx,

Defendants.

DEFENDANT xxxxxx REPLY TO GOVERNMENT'S RESPONSE

TO MOTION TO SUPPRESS EVIDENCE

Comes now the defendant, xxxxxxxxxxxx, by and through his attorney, Virginia L. Grady, and respectfully submits this reply to the Government's Response to Defendant xxxxx's Motion to Suppress Evidence filed December 1, 1998.

The government raises four arguments in its response to the Motion to Suppress Evidence: first, that defendant Michael xxxxx lacks standing to challenge the troopers' search of his car; second, that the troopers' search of Mr. xxxxx's vehicle qualified as a "special needs" search pursuant to Griffin v. Wisconsin, 483 U.S. 868 (1987); third, that Mr. xxxxx's initial detention was supported by Trooper Evans' reasonable suspicion that Ms. Yarbrough had been abducted; and fourth, that Mr. xxxxx's continued presence on the side of the road amounted to a consensual encounter. None of these assertions is persuasive.

1. MR. xxxxx HAS STANDING TO CHALLENGE BOTH HIS DETENTION AND THE SEARCH OF HIS AUTOMOBILE.

The government contends that Mr. xxxxx lacks standing to challenge the search of his vehicle because, at the time of the traffic stop, he was (1) present in Colorado in violation of his bond conditions and (2) planning to travel to Nebraska in violation of his agreement with the rental car agency. Thus, the government's argument goes, Mr. xxxxx did not have a reasonable expectation of privacy in his automobile and the troopers' actions did not implicate his Fourth Amendment rights at all. Gov't Response at 4-5. The government's theory misapprehends the applicable principles of standing.

As a preliminary matter, in his Motion to Suppress Evidence, Mr. xxxxx did not actually challenge the search of his vehicle.' Instead, he argued that evidence seized from his car had to be suppressed as the fruit of his illegal detention. See United States v. Erwin, 875 F.2d 268, 269 n.2 (10th Cir. 1989) ("Even if the defendant lacks standing to challenge the search of the car, if the initial stop was illegal, the seized contraband is subject to exclusion under the 'fruit of the poisonous tree' doctrine") (quoting Wong Sun v. United States, 371 U.S. 471, 484 (1963)). "[S]tanding to challenge a stop presents issues separate and distinct from standing to challenge a search." Id. at 269; United States v. Eylicio-Montova, 70 F.3d 1158, 1162-63 (10th Cir. 1995). Because the Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention, "it is beyond dispute that a vehicle's driver may challenge his traffic stop." United States v.

______________

In its response motion, the government seemed bent on covering a number of issues not contested, or even raised, by Mr. xxxxx in his motion to suppress. Indeed, notwithstanding the defendant's explicit "Statement of the Issue," the government insisted on addressing the question of whether a canine sniff constitutes a search for purposes of the Fourth Amendment and whether a

canine alert provides officers with probable cause to believe a vehicle contains contraband. See Gov't Response at 22-24. Examination of those questions is entirely unhelpful to a resolution of the contested issues in this case.Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994). See also United States v. Kopp, 45 F.3d 1450, 1453 (10th Cir. 1995) (as owner and driver of vehicle, defendant "unquestionably has standing to contest the stop of the truck and the continued detention of ... his person").

Mr. xxxxx, however, certainly has standing to challenge the search of his vehicle on grounds independent of his illegal detention. In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched and that his expectation is reasonable; "i.e., one which has 'a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'" Minnesota v. Carter, ___ S.Ct.___, 1998 WL 823045, *4 (Dec. 1, 1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143-44 (1978)). As the government notes, Mr. xxxxx exhibited a subjective expectation of privacy in his rental vehicle when he loaded it with his and his passenger's personal belongings and used the vehicle as his mode of transportation. That expectation of privacy was legitimate as well: society has long recognized as valuable the right of an individual to be free of unreasonable police intrusion in his or her vehicle. As the Supreme Court instructed in Delaware v. Prouse, 440 U.S. 648, 662-63 (1979):

An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one's home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many

find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio, supra, recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from sidewalks into their automobiles.

driver's expectation of privacy in his vehicle is reasonable if he proves lawful ownership or possession at the time of the search. United States v. Miller, 84 F.3d 1244, 1250 (10th Cir. 1996). See also.Rakas, 439 U.S. at 143 n. 12 ("one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude"); United States v. Orrego-Fernandez, 78 F.3d 1497, 1502 (10th Cir. 1996) (defendant had reasonable expectation of privacy in truck when he demonstrated that truck's actual owner had given him permission to use the vehicle). As the authorized driver of his lawfully rented car, Mr. xxxxx maintained a leasehold interest in his vehicle, an interest based on legitimate property rights that society is prepared to recognize. See Carter, _ S.Ct. at _, 1998 WL 823045 at *4.

The government asserts that Mr. xxxxx's expectation of privacy is nonetheless defeated by virtue of his "wrongful" presence in Colorado. Like Rakas's driver of a stolen car or the burglar "plying his trade in a summer cabin during the off-season," 439 U.S. at 141 n.9, 143 n.12, Mr. xxxxx's status as a bond violator, the government claims, extinguishes his expectation of privacy in the area searched by police. Gov't Response at 5. The analogy is unavailing here. The Rakas Court's determination did not turn on the illustrative defendants' illegal activities but rather on the driver's and burglar's inability to establish a legitimate connection to the place searched. Neither the stolen car driver nor the burglar had legal possession or control of the property, neither had a legitimate right to exclude others from the area, and neither's claim to the property itself was one that society recognized as reasonable. Whether Mr. xxxxx's trip through Colorado constituted a violation of his Arizona bond agreement has no bearing on the reasonableness of his expectation of privacy in his vehicle.

At least two Supreme Court decisions confirm that illegality of a defendant's conduct does not defeat standing if his connection to the property itself is legitimate. In Minnesota v. Olson, 495 U.S. 91 (1990), for example, the defendant fled to the home of a friend after committing an armed robbery and murder and spent a single night on the premises before police located him the next afternoon. After the defendant ignored an order to surrender, police entered the friend's home without a warrant and discovered the defendant hiding in a closet. 495 U.S. at 93-94, 97 n.6. In assessing the defendant's challenge to his arrest, the Court's standing inquiry did not focus on the defendant's criminal conduct or his status as a fugitive but rather on whether "respondent's expectation of privacy [in his host's home] was rooted in understandings that are recognized and permitted by society." Id. at 100 (internal citation omifted). Notwithstanding defendant's illegal deeds, the Court concluded that he had a reasonable expectation of privacy in the premises. Id. at 99-1 00.

And, just this Term, the Court considered whether a defendant visiting someone's home briefly to process drugs had standing to challenge a warrantless search of his host's apartment. Minnesota v. Carter, _ S.Ct. _, 1998 WL 823045 (Dec. 1, 1998). In holding that the defendant lacked a reasonable expectation of privacy in his host's home, the Court reasoned that "the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents' situation is closer to that of one simply permitted on the premises." Id. at *6. The problem for the defendants, then, was not the illegal nature of their conduct, but their lack of connection to the property. See also Minnesota v. Carter, transcript of oral argument before the United States Supreme Court, 1998 WL 714447, *21 (October 6, 1998) (Court agrees with United States Solicitor General's Office that "the illegality of the conduct is something this Court traditionally sets aside" in determining whether defendant has reasonable expectation of privacy in premises).

The government's alternative argument -- that Mr. xxxxx lacked a legitimate expectation of privacy in his automobile because his planned travel to Nebraska would violate his rental agreement -- is a bit silly. Not only is this type of technicality insufficient to defeat Mr. xxxxx's expectation of privacy, but, more importantly, he was stopped and detained in Colorado, not in Nebraska, and thus had not violated any term of his rental contract. Forfeiture of standing based on anticipated conduct seems slightly extreme. Could the officers, for example, have arrested Mr. xxxxx if he told them he was planning to run a red light in the next town? And would Mr. xxxxx have lacked standing to challenge that arrest by virtue of his predicted traffic violation?

Mr. xxxxx had a reasonable expectation of privacy in his vehicle and the property stored within it. He has standing to challenge both his detention and the subsequent search of his car. Because the evidence seized from Mr. xxxxx's vehicle constitutes "fruit" of his unlawful detention, that evidence must be suppressed. United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996); Kopp, 45 F.3d at 1453.

II. THE WARRANTLESS SEIZURE AND SEARCH OF MR. xxxxx'S AUTOMOBILE DOES NOT QUALIFY AS A "SPECIAL NEEDS" SEARCH

The government argues that the troopers' search was reasonable within the meaning of the Fourth Amendment because it qualified as a "special needs" search under Griffin v. Wisconsin, 483 U.S. 868 (1987). According to the government, as a person released on bond, Mr. xxxxx was similarly situated to the probationer in Griffin and could thus be detained and searched pursuant to a less stringent reasonableness standard. This theory so stretches and distorts the principles of Griffin and its progeny as to render the government's argument meaningless.

Contrary to the government's reading, Griffin does not stand for the proposition that anyone subject to conditions of release on bond, probation or parole relinquishes all right to be free of police intrusion. Rather, the Court in Griffin carved out a narrow exception to the warrant requirement when "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." 483 U.S. at 873 (emphasis added). Having identified as a "special need" the state's duty to supervise its probationers, the Griffin Court upheld a state regulation permitting probation officers' warrantless searches of their clients' homes based on less than probable cause. The Court's decision, however, turned on its characterization of the searches as remedial in nature rather than investigatory. As the Court noted, "[a]lthough a probation officer is not an impartial magistrate, neither is he the police officer who normally conducts searches against the ordinary citizen *** we deal with a situation in which there is an ongoing supervisory relationship -- and one that is not, or at least not entirely, adversarial -between the object of the search and the decision maker." Id. at 876, 879.

The government proposes that Mr. xxxxx's detention and the search of his automobile be analyzed pursuant to Griffin's "special needs" balancing test. But no language or principle of law in Griffin even remotely suggests that its holding might extend to an ordinary traffic stop conducted by a state trooper. To the contrary, both the Supreme Court and this circuit have made abundantly clear that traffic stops are investigative detentions governed by the standard articulated in Terry v. Ohio, 392 U.S. 1, 20 (1968). See, e.g., Berkemer v. McCarty, 468 U.S. 420, 439 (1984); United States v. Doyle, 129 F.3d 1372, 1375 (10th Cir 1997).

The forced application of Griffin to this case is even more puzzling given the government's concession that, at the time of the traffic stop, neither officer knew that Mr. xxxxx was on bond. Gov't Response at 2. It is unlikely that the Griffin Court envisioned application of a "special needs" test to situations where no special need has been identified.

Ill. TROOPER EVANS IMPERMISSIBLY EXCEEDED THE SCOPE OF THE TRAFFIC STOP BECAUSE MR. xxxxx'S CONTINUED DETENTION WAS NEITHER SUPPORTED BY REASONABLE SUSPICION NOR TRANSFORMED INTO A CONSENSUAL ENCOUNTER.

A. Trooper Evans did not have reasonable suspicion to believe that Ms. Yarbrou-qh had been abducted.

Trooper Evans stopped Mr. xxxxx's vehicle on the afternoon of September 16, 1998

for failure to display a rear license plate. Immediately upon pulling to the side of the road, Mr. xxxxx pointed out the temporary license tag affixed to the windshield. He also produced a valid Arizona driver's license and rental agreement for the automobile. Rather than issuing a warning or citation and permitting Mr. xxxxx and his passenger to continue on their way, Trooper Evans requested that each traveler exit the car separately and submit to questioning. The government acknowledges that Trooper Evans' further questioning signaled an expansion of the traffic stop beyond its original justification. But, the government claims, the trooper's decision to prolong the detention was supported by an objectively reasonable suspicion to believe that Ms. Yarbrough was an "enslaved occupant" in Mr. xxxxx's vehicle. Gov't Response at 10-11.

To support its theory, the government sets forth four factors that demonstrate the reasonableness of Trooper Evans' suspicion: "[(l)] the physical manifestations of the female, in particular her hand and foot movements, [(2)] her posture of turning away, [(3)] her refusal to look at the officer or answer any questions other than her age and the behavior of the male in usurping all the female's answers and not allowing her to talk to the officer, and [(4)] the vast age difference between the two people." Gov't Response at 9. The problem with the government's assessment is two-fold; first, it has offered a somewhat hyperbolic version of the facts, and second, those four factors do not amount to reasonable suspicion that a kidnaping is occurring.

The government's contention that Ms. Yarbrough refused to answer or was prevented from responding to the trooper's questions distorts the record. For example, in his report, Trooper Evans described the initial questioning in the following detailed manner:

xxxxx handed me his Arizona driver's license and a rental agreement for the car, which according to the rental agreement had been rented from Enterprise Rental. I asked xxxxx where he was traveling from, xxxxx said that he was coming from Phoenix, Arizona. I then asked xxxxx where he was going to and he said Omaha, Nebraska. I then asked xxxxx what he was going to do in Nebraska, xxxxx then pointed to the sole passenger in the vehicle (later identified as Angeline Yarbrough), and told me that he was taking Yarbrough there to get a job. xxxxx further explained to me that he, (xxxxx), had a friend there who was going to give Yarbrough a job. I then asked Yarbrough how old she was. Yarbrough told me that she was eighteen years old.

Report by M.K. Evans at 1 (attached as Exhibit A to Defendant's Motion to Suppress Evidence, hereinafter "Report") (emphasis added).

At the preliminary hearing, Trooper Evans testified on direct examination that immediately after noticing the temporary license tag, he requested Mr. xxxxx's license and registration. The officer then "looked inside the vehicle at the other occupant, and she seemed to be somewhat nervous to me, and she seemed to look a lot younger than the Defendant a swell. So I asked her--I believe at that point I asked her how old she was." Yarbrough told the officer she was eighteen. Without asking any further questions, the trooper returned to his patrol car to verify Mr. xxxxx's documents. Transcript of Preliminary Hearing, September 22, 1998, at 11-12 (attached hereto as Defendant's Exhibit B-1,2 hereinafter "Transcript"). On cross-examination, Trooper Evans' recollection of the events more closely resembled his report. He testified that he approached the stopped vehicle and began asking questions:

________________

2 Avery Reporting Service has submitted a corrected transcript. This transcript

should be considered a replacement for defendant's original Exhibit B.

... I have a bad habit actually of leaning through the window a little bit sometimes, kind of leaning down, so that I can see both parties that I'm taking to, and see their hands and everything. And initially on some of the -some of the things I had asked where they were going, was also another question that I ask when I initially approach the vehicle, and when I'd ask some of these questions I would actually be looking at her but Mr. xxxxx would answer And she wouldn't really look right at me, and she would kind of -- just kind of turned her body away from me like that. And she just -just didn't seem to be very comfortable with my presence.

Transcript at 29-30.

None of Trooper Evans' descriptions of the incident suggest that Ms. Yarbrough refused to answer questions or that Mr. xxxxx prevented her from doing so. Rather, the trooper's report indicates that he directed separate questions to Mr. xxxxx and Ms. Yarbrough and they each responded. And the trooper's testimony merely reveals that when he leaned into the vehicle and posed questions, Mr. xxxxx answered. The question he directed to Ms. Yarbrough concerning her age was answered by her with, apparently, no hesitation. That one person would answer general questions directed to both occupants of a vehicle hardly seems suspicious -- unless Trooper Evans is accustomed to having travelers respond to each of his questions simultaneously. The trooper also testified that Ms. Yarbrough declined to answer questions even when he looked directly at her. Of course, according to the trooper, Ms. Yarbrough was not looking back at him; her failure to answer his questions, then, could not lead to a reasonable suspicion that a crime was being committed.

The other factors that ostensibly support a finding of reasonable suspicion can be dismissed just as readily. Ms. Yarbrough's fidgety movements indicate nothing more than an ordinary discomfort with police intrusion. See United States v. Wood, 106 F.3d 942, 948 (1 Oth Cir. 1997). Similarly, her "posture of turning away" from the trooper could simply have been an effort to maintain some physical distance from Trooper Evans as he leaned his head partially through the passenger window. In any case, Ms. Yarbrough's movement is more consistent with this theory than with the government's hypothesis that her "turning away" somehow indicated she was being "enslaved." Finally, the government's argument that a significant age difference between traveling companions gives rise to a reasonable inference that a kidnaping has occurred is a nonsensical excuse which is belied by the facts.

. Even assuming Trooper Evans had reasonable suspicion, the trooper's questions were not reasonably related to his Justification for prolonging the detention.An investigative detention must "last no longer than is necessary to effectuate the purpose of the stop," and "the scope of the detention must be carefully tailored to its underlying justification." Florida v. Royer, 460 U.S. 491, 500 (1983). "The government has the burden of demonstrating that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure." United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993) (internal quotation marks and citation omitted).

In this case, the scope of Mr. xxxxx's detention was not carefully tailored to Trooper Evans' alleged concern that Ms. Yarbrough had been abducted. The trooper requested and was shown Mr. xxxxx's valid driver's license and lease agreement for the vehicle. Purportedly suspecting that a kidnaping was in progress, Trooper Evans instructed Ms. Yarbrough to exit the car and answer a series of questions. He asked her where she and Mr. xxxxx had driven from, their destination, and the purpose of their trip. He asked how long she had known Mr. xxxxx and how they had met. He also asked her which bags were hers and whether the travelers were transporting any items for another person. He asked her whether there was anything illegal in the vehicle. He did not, however, ask Ms. Yarbrough if she was being held against her will. Transcript at 13-14, 36. Next, Trooper Evans instructed Mr. xxxxx to exit the vehicle and then asked him the same series of questions. During this time, the trooper retained Mr. xxxxx's documents. Report at 2; Transcript at 16.

Trooper Evans' questions about illegal items were unrelated to his justification for the detention, which, he claimed, was to determine if Ms. Yarbrough had been abducted. United States v. Lee, 73 F.3d 1034, 1039 (10th Cir. 1996). See also United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975) ("the stop and inquiry must be reasonably related in scope to the justification for the initiation") (internal quotation marks and citation omitted). Questions legitimately designed to assess Ms. Yarbrough's safety were appropriate, but once the trooper questioned her and Mr. xxxxx about transporting contraband "the detention entered a new phase." United States v. Soto, 988 F.2d 1548, 1555 (10th Cir. 1993). Having determined that Ms. Yarbrough was in no danger, Transcript at 35, Trooper Evans could not further detain the travelers to inquire about contraband unless he had reasonable suspicion "of illegal transactions in drugs" or their consent. United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988), overruled on other grounds by United States v. Botero-Ospina, 71 F.3d 783 (1995); Lee, 73 F.3d at 1039. Trooper Evans had neither. Yet, the detention continued, and it became more coercive.

Just before questioning Mr. xxxxx outside of the vehicle, Trooper Evans subjected him to a pat down search. The search of Mr. xxxxx's person was unsupported by a reasonable, articulable suspicion that he was armed and dangerous, Transcript at 40-41, and was conducted in flagrant violation of Terry v. Ohio, 392 U.S. 1, 28 (1968). Trooper Evans, still in possession of Mr. xxxxx's documents, then proceeded with his questions concerning the travelers' possible transportation of illegal items.

After Trooper Evans established the absence of an abduction, no new factors gave rise to any independent reasonable suspicion that the travelers were transporting contraband. Thus, Mr. xxxxx's continued detention was not reasonably related in scope to the circumstances that justified the interference in the first place. The detention was, therefore, an unreasonable seizure under the Fourth Amendment. United States v. Walker, 933 F.2d 812, 816 (10th Cir. 1991).

C. Mr. xxxxx's involuntary consent to search the vehicle did not transform the detention into a consensual encounter.

The government claims that at the moment Trooper Evans returned Mr. xxxxx's driver's license and obtained his consent to search, the detention was transformed into a consensual encounter. Gov't Response at 12-13. Mr. xxxxx's consent, however, was involuntary -- the product of his illegal detention -- and thus did not alter the nature of the encounter.

While returning a driver's documents is necessary to show that the police-citizen encounter is consensual, it may not always be sufficient. United States v. Gregory, 79 F.3d 973, 979 (10th Cir. 1996); United States v. McSwain, 29 F.3d 558, 563 (10th Cir. 1994). In determining whether consent is voluntary when preceded by the return of documents, courts consider whether the officer informed the defendant that he was free to leave the scene or that he could refuse to give consent, Gregory, 79 F.3d at 979, factors conspicuously absent in this case.

Furthermore, when the consent "is given after an illegal stop, the government carries 14

a heavy burden of showing that the primary taint of the illegal stop was purged so that the subsequent consent" was indeed voluntary. Id.; United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994). Courts evaluate whether the government has established sufficient attenuation between the illegal detention and the consent under the three-pronged test set forth in Brownv.lllinois,422U.S.590(1975):the temporal proximity of the illegality and consent, the presence of intervening circumstances, and the purpose and flagrancy of the police misconduct. Id. at 603-04; United States v. Fernandez, 18 F.3d 874, 882 (10th Cir. 1994).

First, Trooper Evans' request to search was essentially simultaneous with the return of Mr. xxxxx's license and rental contract. The Tenth Circuit has repeatedly declined to find voluntary consent when the consent follows so closely an illegal detention. See Gregory, 97 F.3d at 979-80 (license returned nearly simultaneously with officer's request to search); Melendez-Garcia, 28 F.3d at 1055 (taint unlikely to have dissipated where consent followed only minutes after illegal seizure); Fernandez, 18 F.3d at 883 (consent not voluntary when given "only moments" after illegal detention).

Next, to evaluate possible attenuation, courts ask whether, from the defendant's perspective, an intervening event has occurred that creates a "discontinuity between the illegal stop and the consent such that the original illegality is weakened and attenuated." Gregory, 79 F.3d at 980. Here, of course, there were no intervening circumstances at all; Mr. xxxxx's consent flowed uninterrupted from his illegal detention.

Finally, despite the trooper's protestations to the contrary, the purpose of the prolonged detention was clearly to enable the officer to gain access to the contents of Mr. xxxxx's out-of-state vehicle. Trooper Evans' after-the-fact claim that he was simply investigating a possible kidnaping rings hollow, particularly since he failed to ask the alleged victim any direct questions related to that purpose and then instructed her to return to her "captor's" car. He did, however, ask several questions about the contents of Mr. xxxxx's automobile. And to exacerbate the flagrancy of the misconduct, Trooper Evans conducted an illegal pat-down search of Mr. xxxxx shortly before requesting consent to search.

Mr. xxxxx's consent was insufficiently attenuated from his illegal seizure to be truly voluntary. Thus, the consent could not transform the police intrusion from an illegal detention to a consensual encounter; instead, Mr. xxxxx's illegal detention stretched from the time Trooper Evans' kidnaping concerns should have been alleviated to the time the travelers were arrested.

D. Even assuming Mr. xxxxx voluntarily consented to the search of his vehicle, he was illegally detained following revocation of the consent.

In the midst of his unlawful detention, and just after being subjected to an illegal frisk, Mr. xxxxx agreed to a search of his vehicle. After searching a smaller suitcase, Trooper Evans removed a larger suitcase from the back seat, placed it on the ground behind Mr. xxxxx's car, and thoroughly examined its contents. Transcript at 18. While the second suitcase was still outside the car, Mr. xxxxx expressed his discomfort with the situation and asked the officer what would have happened if he had refused to consent to the search. Trooper Evans told him he would have thanked Mr. xxxxx and sent him on his way. Report at 2. But when Mr. xxxxx unequivocally revoked his consent at that point, the trooper continued to detain him on the road, stating "Okay, that's your right to do so, however I'd just like for you to understand why I'm doing this." Id. Without informing Mr. xxxxx that he was free to leave and without replacing the suitcase in the car, Trooper Evans launched into a lengthy explanation of police procedures and philosophy.

Trooper Dahisten arrived at that time and Trooper Evans asked Mr. xxxxx, "Before you leave, sir, would you mind waiting right here while I talk with this other Trooper." Report at 2. Mr. xxxxx complied with the officer's request. During the next several minutes, Trooper Dahlsten proceeded to ask Mr. xxxxx why he had been stopped, which bags belonged to him and which to Ms. Yarbrough, and "if he had any guns, knives, or weapons in the car." Supplemental Report by Mark Dahisten, September 16, 1998, at 1 (attached hereto as Defendant's Exhibit C, hereinafter"Supplemental Report"). Contemporaneously, Trooper Evans called for a canine unit then re-questioned Ms. Yarbrough about her travel plans. Report at 2-3.'

At some point, Trooper Dahlsten approached Ms. Yarbrough and requested consent to search her luggage. After initially consenting, Ms. Yarbrough indicated she did not want the officer to continue looking through her bags. Supplemental Report at 2. A dispute arose between Mr. xxxxx and Trooper Dahlsten concerning the officer's right to search Ms. Yarbrough's luggage. Before the dispute was resolved, the canine unit arrived. Mr. xxxxx and Ms. Yarbrough were arrested shortly thereafter.

The government insists that even after Mr. xxxxx revoked his consent, his continued presence on the side of the road, with his luggage lying on the ground where Trooper Evans had left it, amounted to a consensual encounter. After all, the government chants,

No further questioning about a possible kidnaping occurred. Mr. xxxxx's driver's license and rental papers had been returned. Gov't Response at 20. And, the government asserts, Trooper Dahlsten's arrival did not alter the consensual nature of the encounter, despite the fact that Mr. xxxxx and Ms. Yarbrough were then separated and subjected to further questioning and requests for consent to search. Neither Trooper Evans nor Trooper Dahlsten reported that Mr. xxxxx and his passenger were ever told they were free to leave.

Whether a particular encounter constitutes an investigative detention implicating Fourth Amendment protections depends upon whether a reasonable person under the circumstances would believe that he was not free to leave or to disregard the officer's questions. INS v. Delgado, 466 U.S. 210, 215 (1984); United States v. McKneely , 6 F.3d 1447, 1451 (10th Cir. 1993). In evaluating a defendant's perception of his freedom to leave, "it is not [the officer's] subjective intent, but rather the objective impact" of his words and actions on a reasonable person, that controls. United States v. Sandoval, 29 F.3d 537, 541 (10th Cir. 1994). Here, then, the inquiry must focus not on the sincerity of Trooper Evans' desire to "do some public relations work with Mr. xxxxx," Gov't Response at l8, but rather on whether the trooper's version of"public relations" would seem more like an investigative detention to a reasonable person.

When Mr. xxxxx revoked his consent to search, he could reasonably have expected Trooper Evans to return the luggage to the car and leave the scene. After all, Mr. xxxxx had just verified the trooper's intended course of action. Instead, Trooper Evans replied "Okay, that's your right to do so, however, I'd just like for you to understand why I'm doing this." He did not give Mr. xxxxx the option of collecting his bag and continuing on his way; to the contrary, the trooper continued to engage Mr. xxxxx and clearly conveyed that the detention was not over.

The Tenth Circuit has found that such statements by officers do not "contemplate[] any possibility of noncompliance" on the part of drivers. In Sandoval, a driver who had been stopped for speeding joined the officer in his patrol car while the officer prepared a warning citation. As the officer returned the driver's documents and handed him the citation, the driver asked, "That's it?" The officer responded, "No, wait a minute," then proceeded to ask a series of questions concerning the driver's involvement with drugs. 29 F.3d at 539. A subsequent consent search uncovered narcotics. The driver later claimed that his consent was tainted by his illegal detention. The Tenth Circuit agreed. It rejected the government's theory that the encounter was consensual, concluding that although the driver had received his documents, the officer's statement would have communicated to a reasonable person that he was not free to terminate the conversation. Id. at 542.

Here, the trooper's conduct, following so closely Mr. xxxxx's initial illegal detention, would have reasonably indicated that Mr. xxxxx was required to remain on the side of the highway while Trooper Evans explained police practice. Moreover, Trooper Dahlsten's arrival firmly established that the encounter was not over. The presence of more than one officer is a factor "that would negate a reasonable person's belief that he or she was free to leave...... Sandoval, 29 F.3d at 540. Trooper Dahlsten, of course, was not merely present at the scene. He essentially reinvigorated Trooper Evans' detention of the travelers. Mr. xxxxx and Ms. Yarbrough were separated while each of the troopers reinitiated lengthy questioning and continued to press for consent to search the luggage.

"Accusatory, persistent, and intrusive questioning may turn an otherwise voluntary encounter into a coercive one if it conveys the message that compliance is required." United States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir. 1996).

An officer need not exhibit extreme coercion to signal that a driver is not free to terminate an encounter. In United States v. Dove, 89 F.3d 851, 1996 WL 327456 (10th Cir 1996) (unpublished disposition) (attached hereto as Defendant's Exhibit D), the court of appeals examined circumstances less egregious than those presented here. A state trooper stopped the defendant's van for obstruction of vision. Following a computer check, the trooper returned the defendant's identification and notified him that his driver's license had expired. The trooper then asked the defendant to exit the van. The two walked to the rear of the van where the trooper asked a number of questions including whether the defendant was carrying drugs. Id. at *1. Evidence seized pursuant to a subsequent consent search was suppressed as fruit of an illegal detention. The Tenth Circuit concluded:

In this case, as in Sandoval, the driver's consent to further questioning was involuntary. When Trooper Millard returned Mr. Dove's documentation, the trooper contemporaneously asked Mr. Dove to step out of the car. Next, the trooper walked Mr. Dove to the back of the van, questioned him about the presence of a licensed passenger, and informed him the licensed passenger would need to drive. Trooper Millard then asked Mr. Dove about drugs in the van. At no point during this exchange did the trooper inform Mr. Dove that he was free to leave. Nor do we believe, based on the totality of the circumstances, a reasonable person in Mr. Dove's situation would have felt free to do so.

Id. at *5. The court distinguished United States v. Werking, 915 F.2d 1404 (10th Cir. 1990) and United States v. McKneely, 6 F.3d 1447 (10th Cir. 1993) on the ground that the defendants in those cases had not been asked to exit their vehicles after their documents were returned. Dove, 1996 WL 327456 at *5.

Here, Trooper Evans instructed Mr. xxxxx and Ms. Yarbrough to exit their vehicle at the time he conducted the initial search. They remained outside the car on the side of the highway for the remainder of the encounter, where they were subjected to persistent, intrusive questioning by two state troopers. A reasonable person in Mr. xxxxx's position would not have felt free to return to his car and proceed on his way. Mr. xxxxx was seized for Fourth Amendment purposes during the period following his revocation of consent.

IV. THE EXCLUSIONARY RULE APPLIES TO THIS CASE

Least persuasive of all the government's arguments is its theory that, even assuming Trooper Evans did detain Mr. xxxxx illegally, the exclusionary rule would not apply in this case. Relying on United States v. Leon, 468 U.S. 897 (1984), the government posits that the exclusionary rule is not designed to deter police errors made in good faith -- the sort, apparently, at issue in the instant case -- but only to deter intentional police misconduct. Gov't Response at 11. This argument evidences a troublesome lack of understanding on the part of the government concerning the most elemental principles of constitutional criminal procedure.

Leon, of course, does not even remotely stand for the government's proposition. Rather, the Court in Leon concluded that exclusion of evidence was not compelled where a police officer relies in good faith on a subsequently invalidated search warrant. 468 U.S. at 922. The Court's decision is based on the deeply-rooted principle that "a search warrant provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime." Id. at 913-14 (internal quotation marks and citations omitted). The deterrent effect of suppression in cases where an officer has sought and been issued a warrant is minimal, the court reasoned, since "U]udges and magistrates are not adjuncts to the law enforcement team ... [and] have no stake in the outcome of particular criminal prosecutions." Id. at 917. Accordingly, evidence discovered pursuant to a magistrate's reasonable but erroneous finding of probable cause is admissible; "the exclusionary rule is designed," after all, "to deter police misconduct rather than to punish the errors of judges and magistrates." Id. at 916.

That Leon would excuse police misconduct where officers act with subjective good faith -- but without a warrant -- is patently absurd. Followed to its logical conclusion, the government's view completely swallows any application of the exclusionary rule, save for situations where an officer intentionally and maliciously tramples a citizens' constitutional rights. But the rule was clearly designed to serve a broader purpose, see United States v. Calandra, 414 U.S. 338 (1974): to deter police conduct deemed unreasonable under the Fourth Amendment regardless of the subjective intent of the officer. To this end, Leon's narrow holding simply renders reliance on a facially valid search warrant reasonable for purposes of application of the exclusionary rule. The same cannot be said of Trooper Evans' decision to conduct a warrantless seizure and search, even assuming that decision was motivated only by a desire to improve officer-driver relations.

V. CONCLUSION

The government has failed to meet its burden of proving that Trooper Evans' detention of Mr. xxxxx was both lawful at its inception and reasonably related in scope to the circumstances which justified the interference in the first place. Terry v. Ohio, 392 U.S. 1, 20 (1968). Consequently, the evidence discovered in Mr. xxxxx's automobile is "tainted by the unlawfulness of that detention and must be suppressed." United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997) (citing Wong Sun v. United States, 371 U.S. 471, 48486 (1963). As the court admonished in United States v. Fernandez, 18 F.3d 874 (10th Cir. 1994):

Law enforcement officials must obey the requirements of the Fourth Amendment when performing their duties. We place particular emphasis on the Fourth Amendment's concern that evidence not be obtained by exploitation of illegal police conduct.

Id. at 883 (internal citation omitted). See also United States v. Salzano, 149 F.3d 1238, 1245 (1 Oth Cir. 1998) (evidence tainted by illegal detention must be suppressed); United States v. Lee, 73 F.3d 1034, 1040 (10th Cir. 1996) (same).

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