The Cracked Windshield, the Cell-Phone and the 4th Amendment

All I know about this case is that Jose Lobo–Lobo and Jose Gaona–Gomez are defendants in a federal criminal case pending in the U.S. District Court for the SouthernDistrict of Texas and both moved to suppress certain evidence.  U.S. v. Gaona-Gomez, et al., 2013 WL 3243619 (2013).  The facts suggest the charge(s) involve helping aliens enter the U.S. illegally.

According to this opinion, the case began “[j]ust before midnight” on April 7, 2013, when

Texas Department of Public Safety Trooper Daniel De La Garza was on patrol duty near the intersection of Texas State Highway 285 and U.S. Route 77 in Southern Texas. [He] was sitting in his patrol car in the parking lot of a restaurant north of the intersection when he observed a Nissan Quest minivan with a cracked windshield pass him traveling southbound on Route 77.

De La Garza [knew] a cracked windshield is a safety hazard because it can distort one's view and potentially cause a[n] accident. . . . De La Garza [also] noted that [it] had an elevated rear-end, indicating it might be involved in alien smuggling. He decided to pursue the vehicle to investigate. . . . [It] was driven by Jose Gaona–Gomez. Jose Lobo–Lobo was in the passenger seat.

U.S. v. Gaona-Gomez, supra.

De La Garza began following the minivan, which “turned right onto Highway 285, westbound toward U.S. Route 281.” U.S. v. Gaona-Gomez, supra. He ran the license plate, which indicated it was registered out of Houston. U.S. v. Gaona-Gomez, supra. It was driving the speed limit and other than the cracked windshield, De La Garza did not notice any other traffic violations. U.S. v. Gaona-Gomez, supra. Using the left lane, he “pulled up next to the minivan and turned on his `alley’ light to illuminate its interior. U.S. v. Gaona-Gomez, supra. De La Garza confirmed that the windshield was cracked and saw two people in the minivan. U.S. v. Gaona-Gomez, supra.

He moved behind it and activated his overhead emergency lights, which “activated the dash-mounted video camera in his patrol unit”; it recorded “and saved the stop, as well as the preceding two minutes of video.” U.S. v. Gaona-Gomez, supra.  It also began an audio recording of the stop. U.S. v. Gaona-Gomez, supra. At the hearing on the motions to suppress, the prosecution introduced a DVD recording of a portion of the stop, which was admitted into evidence and played for the Court.  U.S. v. Gaona-Gomez, supra.

While De La Garza pursued the minivan, U.S. Border Patrol Agent Jerry Flores was parked on the side of Highway 285 “looking for a group of illegal immigrants Border Patrol was tracking through the brush.” U.S. v. Gaona-Gomez, supra. Flores saw the minivan go by, followed by De La Garza. U.S. v. Gaona-Gomez, supra.  He noted that the rear of the minivan “appeared lifted.” U.S. v. Gaona-Gomez, supra.

Given that, the time of night, the fact Highway 285 is a “well-known alien smuggling corridor” and the vehicle involved, Flores suspected the minivan “might be involved in alien smuggling, and decided to follow De La Garza to provide assistance if necessary.” U.S. v. Gaona-Gomez, supra. When De La Garza initiated a traffic stop, Flores pulled in behind his car and got out of his own vehicle. U.S. v. Gaona-Gomez, supra. Another Border Patrol unit “with Agent Jeffrey Bennett and Agent Geraldo Espinoza, who were assigned to patrol duty on Highway 285 that evening, also stopped to lend assistance as a professional courtesy.” U.S. v. Gaona-Gomez, supra.

The DVD apparently shows De La Garza approaching the driver's side door of the vehicle and Flores approaching the passenger's side. U.S. v. Gaona-Gomez, supra. De La Garza asked Gaona–Gomez to step to the back of the vehicle, but he “did not immediately comply”.  U.S. v. Gaona-Gomez, supra. De La Garza “realized Gaona–Gomez did not speak English so he spoke to him in Spanish.” U.S. v. Gaona-Gomez, supra. He told Gaona–Gomez he stopped him because of the cracked windshield, and asked for his driver's license; Gaona–Gomez said “he did not have one and the vehicle belonged to his boss.”  U.S. v. Gaona-Gomez, supra.

At this point, Espinoza “approached Gaona–Gomez to perform an immigration check.” U.S. v. Gaona-Gomez, supra.  Gaona–Gomez admitted he was a Mexican national and was in the United States “without the proper immigration documents.” U.S. v. Gaona-Gomez, supra. Bennett conducted “an immigration inspection on Lobo–Lobo, who did not have any identification and admitted he was an undocumented immigrant from Honduras.” U.S. v. Gaona-Gomez, supra.  The Border Patrol agents took both of them into custody. U.S. v. Gaona-Gomez, supra.  

After they were in custody, De La Garza inventoried the minivan. U.S. v. Gaona-Gomez, supra. He noticed a cell phone in the center console cup-holder; since he thought it might belong to “one of the Defendants,” he gave it to Espinoza. U.S. v. Gaona-Gomez, supra. Espinoza asked them if the phone belonged to them. U.S. v. Gaona-Gomez, supra. When neither claimed it, Espinoza put it in his pocket. U.S. v. Gaona-Gomez, supra. He later dropped both of them “off at the Sarita checkpoint for processing, but he kept the phone with him.”  U.S. v. Gaona-Gomez, supra.

Later that night, the cell phone vibrated and Espinoza answered it. He could hear brush crackling and blowing wind in the background. The person on the phone [said] he was close to the highway, near a bridge, by a tower. Espinoza recognized the location as being close to their current position on Highway 285.

Espinoza and Bennett drove to the location, and using an infrared camera, Bennett saw several bodies hiding in the brush. Espinoza made a U-turn and stopped on the shoulder near the group of people waiting in the brush. Approximately fourteen undocumented aliens came running out . . ., jumped the fence, and got into the back of the patrol unit.

Espinoza gave the cell phone to Border Patrol intelligence agents the next morning. Gaona–Gomez later admitted . . . that [it] belonged to him, and was given to him by his boss to assist him in the transportation of undocumented aliens from the border area back to Houston.

U.S. v. Gaona-Gomez, supra.

The opinion says that after the minivan was impounded, a Border Patrol agent “took pictures of the cracked windshield”.  U.S. v. Gaona-Gomez, supra. One of the photos, which was admitted into evidence at the hearing on the motions to suppress, “was taken from the driver's seat and shows a substantial horizontal crack that runs approximately three-quarters of the way across the middle of the windshield from the passenger's side to the driver's side.”  U.S. v. Gaona-Gomez, supra.

The defendants made two arguments in their motions to suppress:  One was that the traffic stop “was not justified . . . because no violation of Texas law exists for having a cracked windshield, and therefore, the seizure” violated “their 4th Amendment rights”.  U.S. v. Gaona-Gomez, supra.  The other was that Espinoza's “use of the cell phone constituted an unlawful, warrantless search in violation of 18 U.S. Code § 2518.” U.S. v. Gaona-Gomez, supra.  They asked that “all evidence seized be suppressed . . . as fruit of the poisonous tree.”  U.S. v. Gaona-Gomez, supra. 

The federal district court judge who has the case began her analysis of the first argument by noting that the 4^th Amendment protects people from "unreasonable searches and seizures" of their

persons and effects. . . . Law enforcement officers are justified in making brief investigatory stops of motorists traveling on our public highways where they have probable cause or reasonable suspicion that a traffic violation or some other crime has occurred or is about to occur. . . . In determining whether a traffic stop was lawful, the Court must look at the totality of the circumstances to determine whether there existed a particularized and objective basis for concluding unlawful activity was underway or about to commence. . . .

U.S. v. Gaona-Gomez, supra. 

She then applied these principles to the facts, noting that at the initiation of the traffic stop,

De La Garza informed Gaona-Gomez that the reason for the stop was a cracked windshield. During the suppression hearing, De La Garza indicated that a cracked windshield constitutes a violation of Texas Transportation Code § 547.613, which provides that `a person commits an offense . . . if the person operates a motor vehicle that has an object or material that is placed on or attached to the windshield or side or rear window and obstructs or reduces the operator's clear view.’ Defendants argue that a cracked windshield does not constitute a violation of § 547.613, and therefore, the traffic stop was unlawful. . . .

[E]ven if a cracked windshield does not constitute a violation of § 547.613, the Court finds that a windshield with a substantial crack may violate Texas Transportation Code § 547.004(a) (1), which provides that a person commits an offense by operating a vehicle that `is unsafe so as to endanger a person.’ See Johnson v. Texas, 2000 WL 1835396 *2 (Texas Court of Appeals 2000) (`officer's affidavit stated appellant's windshield had a crack in it. This would give the officer reasonable suspicion to stop appellant's car’) (citing Tex. Transp. Code §§ 547.004(a)(1), 547.613(a)).

A substantial crack in a windshield may present a danger to the vehicle's operator or others because, as stated by the Trooper, it can obstruct or distort the driver's view which can increase the likelihood of an accident. Accordingly, De La Garza had reasonable suspicion of a traffic violation, allowing him to further investigate the cracked windshield as a potential safety hazard.

U.S. v. Gaona-Gomez, supra. 

The judge also found it was “immaterial” that De La Garza did not “did not identify § 547.004(a)(1) as his justification during the traffic stop or suppression hearing” because all the 4^th Amendment requires is that the “officer held an objectively reasonable basis for the stop; an officer's subjective intent for making a traffic stop is irrelevant.”  U.S. v. Gaona-Gomez, supra (citing Whrenv. U.S., 517 U.S. 806 (1996)). In Whren, the Court said an officer’s motives in making a stop are not relevant to 4^th Amendment analysis; if a stop was pretextual, it will not violate the 4^th Amendment if it was “reasonable” under 4^th Amendment standards.  She therefore held that the seizure of the defendants did not violate the 4^th Amendment. U.S. v. Gaona-Gomez, supra.  (As Wikipedia notes, a stop of someone in their vehicle is a 4^th Amendment seizure of that person because it interferes with their freedom of movement.)

She then took up the defendants’ second argument, which was that “Espinoza violated [Gaona-Gomez’s] 4th Amendment right to be free from unreasonable searches and seizures when he answered his cell phone without obtaining a search warrant pursuant to 18 U.S. Code § 2518.”  U.S. v. Gaona-Gomez, supra.  The prosecution argued that Gaona-Gomez “had no legitimate expectation of privacy in the cell phone because it constituted abandoned property.” U.S. v. Gaona-Gomez, supra.  

The judge began her analysis of this argument by explaining that an individual has no

reasonable expectation of privacy in abandoned property, and therefore, no standing to object to a search of such property. Abel v. U.S., 362 U.S. 217 (1960); U.S. v. Colbert, 474 F.2d 174 (U.S. Court of Appeals for the 5th Circuit 1973). . . . In determining whether property is abandoned for 4th Amendment purposes, the Court must ask whether the person held a reasonable expectation of privacy in [it]. . . .

[T]he abandonment must be voluntary, and cannot be influenced by improper police conduct. . . . The mere presence of police officers for investigatory purposes, however, does not render an abandonment involuntary. . . . Nor does a lawful arrest amount to such compulsion so as to render an otherwise voluntary abandonment involuntary. . . .

U.S. v. Gaona-Gomez, supra.  

She then, as above, applied this standard to the facts in this case:

Espinoza asked both Defendants, after their arrest, whether the phone belonged to them. Neither . . . claimed ownership of the phone. Gaona Gomez also disclaimed ownership in the automobile where the phone was located, indicating it belonged to his boss.

Given the above, the Court finds Gaona–Gomez voluntarily abandoned the cellular phone, and that he did not possess a reasonable expectation of privacy in the phone at the time Espinoza answered it. Other courts have similarly concluded that when a suspect abandons his cell phone in a public space, he lacks standing to contest a subsequent search of the phone by officers. . . .

U.S. v. Gaona-Gomez, supra.  

She therefore held that the Gaona–Gomez “lacks standing to contest the search and seizure of the cell phone in the case at hand because it constituted abandoned property and he had no reasonable expectation of privacy in the object or in any incoming calls.” U.S. v. Gaona-Gomez, supra.  And since she rejected both arguments in support of the motions to dismiss, she denied both. 
U.S. v. Gaona-Gomez, supra.