United States v. Beltran-Palafox (731 F. Supp. 2d 1126, 2010)

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

This matter comes before the Court on defendant Raymundo Elenes-Mombela’s Motion to Suppress (Doc. 33), and Motion to Join (Doc. 41), and defendant Luis Beltran-Palafox’s Motion to Suppress (Doc. 38). On November 10, 2009, the Court was notified that the parties sought to submit their pretrial motions on the briefs without any additional hearing. After both parties delivered exhibits and expert reports, the Court reviewed the arguments and the evidence and determined that the record was factually and legally insufficient to rule on the issues raised by defendants in their pending motions. At a status conference January 6, 2010, the parties agreed to a half-day evidentiary hearing on March 29, 2010. At the close of the day March 29, the parties requested a second, full-day hearing on April 13, 2010. By the end of the day April 13, the parties requested leave to supplement their briefing before the Court took the pending motions under advisement.

The matter was fully briefed on April 29, 2010, and the Court took the motions under advisement at that time. Because no evidence was presented regarding the voluntariness of defendants’ statements to law enforcement officers, the parties asked the Court to limit its ruling to defendants’ motions to suppress evidence obtained in the traffic stop. The Court will not rule on defendants’ motions to suppress their statements until the time of trial.

Having reviewed the evidence and arguments presented by the parties regarding the suppression of evidence in this case, the Court is now prepared to rule. For the reasons explained in detail below, Beltran-Palafox’s Motion to Suppress Evidence (Doc. 38), joined by co-defendant Raymundo Elenes-Mombela (Doc. 41), and Elenes-Mombela’s Motion to Suppress Evidence (Doc. 33), are denied.

I. Factual Background

On December 15, 2008, officers of the Saline County Police Department were conducting surveillance on a residence in New Cambria, Saline County, Kansas in relation to an on-going narcotics investigation. During surveillance, officers noticed a 1991 Lincoln Town Car, bearing Kansas license plate number 130BHW, parked in the driveway and occupied by three individuals later identified as the defendant, Luis Beltran-Palafox, the co-defendant, Elenes-Mombela, and an individual by the name of Garrett Greer.

During the surveillance, Beltran-Palafox and Elenes-Mombela were seen entering and exiting the residence, returning to the Lincoln Town Car, and placing unknown items inside the vehicle. At one point during the surveillance, automatic gunfire was heard from the property, although none of the three individuals was observed with a firearm.

Approximately one hour later, Beltran-Palafox and Elenes-Mombela left the property in the Lincoln Town Car. Officers followed the vehicle.

At approximately 16:37 hours, Investigator McCary contacted Officer Ricardo Garcia, who was on regular patrol in the Salina area, to inform him that he was to stop the Lincoln Town Car. Investigator McCary gave a description of the vehicle and its location near Ohio Street, namely that the car’s window tinting appeared to be darker than allowed by law and that the •car was occupied by two subjects. Officer Garcia was further informed that the car was registered to a Luis Beltran and that the subjects were possibly armed. At the suppression hearing, Officer Garcia testified that someone on the drug task force informed him that the individuals were observed firing a handgun.

Shortly thereafter, Officer Garcia spotted the Lincoln Town Car, observed its window tinting to be “substantially dark.” Officer Garcia testified that he has stopped cars for window tinting violations on previous occasions. He was unable to see the movement in the car because it was so dark. Based on his experience, he suspected defendants’ windows were below the 35% minimum set under Kansas law, and activated his emergency lights to stop the vehicle. The traffic stop was videotaped, and part of the conversation was in Spanish. Officer Garcia testified that he is fluent in Spanish. Before approaching the car, he asked the sheriffs department to send a canine unit to assist him at the stop location.

When Officer Garcia approached the driver (Beltran-Palafox), he informed him of the reason for the stop (dark window tinting) and asked for the driver’s license and current proof of insurance. Officer Garcia noticed that the driver (Beltran-Palafox) and passenger (Elenes-Mombela) both appeared nervous; the passenger’s hands were shaking and he began smoking. Beltran-Palafox informed Officer Garcia that he only had a Mexican driver’s license and provided it to him. The license identified the driver as “Oscar Daniel Villa-Hurtado” and appeared to have been issued by the Mexican State of Durango. Officer Garcia testified that he has seen such licenses on previous occasions. He had no idea whether “Oscar Villa-Hurtado” was the driver’s real name, but he suspected the Mexican license was not valid.

Officer Garcia returned to his patrol car' to speak with other officers over the radio. At one point in the conversation, Officer Garcia can be heard on the police video responding that there was “a DL issue anyway with the Mexican driver’s license,” explaining that he did not believe it was valid in Kansas. However, he was uncertain whether a citation or a “15” was appropriate. Officer Garcia also conducted a license check and a check for warrants on the name “Villa-Hurtado” and likely derivatives of that name. Officer Garcia stated he did not know the identity of the passenger. Dispatch was unable to locate a Kansas DL for “Villa-Hurtado” and found no warrants for “Villa-Hurtado.” Officer Garcia testified at the suppression hearing that the City of Salina informed its officers that a Mexican driver’s license was not valid, and driving without a valid license is an arrestable offense. He explained that there was no question in his mind the driver would be arrested. However, on cross-examination, he noted that it is not an offense for someone traveling through the state to use a Mexican driver’s license, and he had never before seen this particular car or these defendants.

Officer Garcia again made contact with the driver and at the same time checked the tint on the driver’s side window using a tint meter. Although Officer Garcia could not remember the last time the tint meter had been tested, on this occasion, the tint came back at 15%, well below the allowable limit of 35%. Officer Garcia informed Beltran-Palafox that dispatch was unable to find a valid driver’s license under the name given. Officer Garcia then asked the passenger, Elenes-Mombela, for identification. Elenes-Mombela gave Officer Garcia a Mexican identification card, which identified him as Raymundo Elenes-Mombela. The ID appeared to be from Mexico City.

Officer Garcia returned to his vehicle and spoke, via radio, with Lt. Norton who advised that Beltran-Palafox should be placed under arrest for failing to possess a valid driver’s license. Lt. Norton further stressed that both subjects should be considered armed. Officer Garcia stated over the radio that he would wait to perform the arrest until a second officer arrived.

While waiting, Officer Garcia asked dispatch to do a check on Elenes-Mombela’s identification. Dispatch eventually responded to report Elenes-Mombela had a “system generated license,” which Officer Garcia indicated was “not valid.” On the video, dispatch made final contact with Officer Garcia at 16:53:40 to tell Officer Garcia that he found Elenes-Mombela “locally” as well. At the hearing, Officer Garcia testified that Elenes-Mombela had a suspended license and would not be able to drive the vehicle.

After this, Officer Garcia no longer communicated with dispatch, but waited in the patrol car for the other officer to arrive. At 16:54:00, Officer Garcia called another officer and asked, “How far out are you?” At 16:56:13, the video records the sound of a dog. When Canine Officer Deputy James Hughes arrived on the scene with Rony, the drug detection dog, Officer Garcia exited the patrol car. Officer Garcia explained that he intended to “15” the driver and do a search-incident-to-arrest.

Officer Garcia made contact with Beltran-Palafox, asked him to step out of the vehicle, performed a patdown search, and placed him under arrest. Officer Garcia closed the front driver’s side door. After Beltran-Palafox was placed in the patrol car, Officer Garcia explained to the other officer that he intended to do a patdown of the passenger for weapons, but stated that he “might be released.” Some discussion was had about “holding” him. At this point, Officer Garcia contacted Elenes-Mombela and asked him to step out of the vehicle during the sniff by the canine. Officers performed a patdown search of Elenes-Mombela. The officers discussed the possibility of someone coming to pick up the car. On the video recording, the officers also discussed Elenes-Mombela’s request to have his girlfriend pick up the car. At some point, Elenes-Mombela’s phone was taken from him and his wallet was turned over to officers on the drug task force.

On the video, Deputy Hughes is seen with the canine, Rony, circling the vehicle multiple times (approximately three times). The front passenger door remained open after Elenes-Mombela exited the vehicle. Hughes and Rony passed the front passenger door, but Hughes pulled the dog away and the team circled the vehicle one full time. Upon returning to the front passenger door a second time, Hughes allowed Rony to enter the front passenger door. He let go of the leash and opened the back passenger door on the right side. He closed the front passenger door and Rony exited the back passenger door. They then moved to the opposite side of the car, and Hughes opened the back seat passenger door (behind the driver’s seat) and allowed Rony to enter the vehicle. A package fell out the door and when Rony exited, the team moved away from the vehicle. Another person on the scene threw the package into the car and closed the door. Hughes and Rony returned to the vehicle. Hughes opened the driver’s side door and allowed the dog to enter again. When the dog exited, he closed the door. This concluded the drug-dog sniff. Although the events inside the car cannot be seen on the police video, Hughes testified that Rony scratched at the floor in the back passenger seat and the floor by the front driver’s seat when he was inside the vehicle, alerting to the presence of narcotics.

While the drug dog sniff was ongoing, Investigator Feldman arrived on the scene and asked Elenes-Mombela who owned the car. Officer Garcia testified the conversation between Feldman and Elenes-Mombela was in English and Garcia did not translate Feldman’s questions. Garcia was the only officer on the scene who spoke Spanish. Elenes-Mombela stated, “Uh, my friend.” Investigator Feldman then questioned Elenes-Mombela about the driver’s identity. Elenes-Mombela stated that the driver was “Oscar.” Investigator Feldman asked Elenes-Mombela if the driver was “Luis,” and Elenes-Mombela denied that the driver was “Luis.” On the video, an unidentified officer can be heard repeating, “Don’t lie to me,” and asking for the name of the driver. Officer Feldman arrested Elenes-Mombela for obstruction of the investigation because he stated the driver was “Oscar,” and he was transported to the Salina Police Department. Officer Garcia testified that Feldman knew of someone with the nickname “Lordy,” but Officer Garcia had no knowledge of defendants’ nicknames or their relationship.

Due to the nearly freezing temperatures outside, the vehicle was transported to the Salina Police Department garage to be impounded and searched. Officer Garcia testified that there was no one to pick the vehicle up. He explained that he was involved in interpreting for the police and both defendants. The entire stop, including the dog sniff of the vehicle, lasted approximately 28 minutes.

Officer Greg Swanson did the inventory search of the vehicle. During December 2008, he worked as an I — 135/1—70 Drug Task Force Officer in the Saline County Sheriffs Department. He regularly inventoried vehicles that had been impounded. When defendants’ vehicle was brought to the police station, Investigator Feldman informed Swanson that a drug dog had alerted to the vehicle, but Swanson was not told where. Swanson testified that less than one minute after opening the driver’s door, he noticed the control panel was loose and had non-factory screws and fresh tool marks. He worked in narcotics and had training and experience with concealed compartments in vehicles, and he routinely checked the door panels because it has a natural void where drugs may be hidden. He stated he would do so even if no drug dog alerted to the vehicle. Swanson testified at the hearing that the control panel in this case was loose, and it could simply be moved with the fingers; only the wires within the control panel were attached. The Saline County Sheriffs Department had a policy that, whenever a vehicle was impounded, towed, or seized, the vehicle was inventoried and all items inside the vehicle are to be noted on an inventory sheet. In searching the defendants’ vehicle, Swanson found: a baggie of methamphetamine, which would later conclusively show 55.20 grams of methamphetamine with a purity level of 99%, a baggie containing suspected MSM, and a loaded handgun hidden in the driver’s side door under the window/lock control panel.

On March 16, 2009, defendants Beltran-Palafox and Elenes-Mombela were indicted (Doc. 1). On April 15, 2009, a First Superseding Indictment was issued (Doc. 15), charging both defendants with possession, with intent to distribute, 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Luis Beltran-Palafox was indicted on a second count for carrying a firearm, to wit: a Ruger SR9, 9 mm, semi-automatic handgun, bearing Serial No. 330-04654, in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

Canine Rony

At the suppression hearing, Deputy James Hughes, the canine handler, and two experts, Steven Nicely and Kenneth Wallentine, testified on the issue of Rony’s training and reliability in this case.

Hughes has worked as a canine officer since 1999, trained and worked with three different drug detection dogs, and attended numerous training schools and in-services dealing with drug enforcement, including 120 hours of training as a canine officer in Texas. Hughes got Rony in 2003. Rony was certified by the Nelson Rivera canine school in Junction City, Kansas before Hughes received him. Rony was certified for a dual purpose: for narcotics detection and for general patrol purposes, including apprehension, evidence recovery, tracking, and area searches. He was an aggressive indicator, meaning he demonstrated the presence of narcotics generally by scratching, biting and barking. When Rony was successfully certified in 2003, through “blind” testing, meaning Hughes did not know where the items were located. As maintenance, the team trained sixteen hours monthly with a group of other handlers from area police departments, utilizing various environments and types of narcotics. Rony and Hughes’ annual certification came through the Heart of America Police Dog Association (“HAPDA”), where he learned to keep records for Rony during testing and field work documenting when Rony was deployed, the circumstances and location of the search, how the canine behaved, and whether anything was found. Hughes learned to improve his record-keeping practices from other handlers and training classes. From 2003 until 2009, the certification standards were consistent and often involved four tests performed over a series of days. Rony never failed any certification test.

Hughes testified that Rony had some problems with attention when he first started. He would get distracted by hot dogs. However, Hughes testified that training was done to proof Rony off hotdogs, so that he was not searching for the hotdogs, but for the narcotics. Rony was “proofed off’ various items, including money, plastic baggies, dog food, and his “calm ball.” As Rony improved, he learned to leave the proofing items alone.

Hughes noted that Rony has previously become “overwhelmed” by large amounts of narcotics, but such behavior is common among drug detection dogs. They are trained to identify the source of the odor, but when the odor is overwhelming, the dog becomes confused. Hughes stated that he is familiar with Rony’s personality and can detect when he is less motivated or less engaged.

From Rony’s training reports, Hughes was able to generate percentages to determine Rony’s reliability. Hughes divided the number of “known finds” presented in training by the number of times Rony found narcotics correctly and determined Rony’s success rate as follows:

2004-91.3%

2005-87.4%

2006-96%

2007-94%

2008-90%

As a canine handler, Hughes testified that he would not be satisfied with anything below 85%. In each of these scenarios, Hughes was unaware of the location of the narcotics; it was placed by a third party. Hughes explained that he did not use field performance to calculate Rony’s percentages because a drug dog is trained to detect odor, and even when the officers are unable to find actual narcotics, it does not mean the odor is absent. Because it is not a controlled environment, there is no way for officers to determine whether narcotics were once present in the location where the dog gave a “false alert.” Thus, Hughes considered field performance an unreliable measure of a drug dog’s accuracy-

Hughes testified that he frequently allows Rony off the leash to search, but will keep Rony on the leash when a search is performed on the interstate. On December 15, 2008, the weather was below freezing. The heater in defendants’ vehicle was running and the air currents were moving the odor from the car. Rony is trained to find the “saturation point” or the “source” of the odor. Although Hughes was asked whether he “jerked” Rony’s leash during the search of the vehicle, Hughes explained that he did not, but often moves the leash behind him and changes hands as he and Rony change directions around a vehicle.

Hughes explained that, when they first passed the front passenger door, Rony “trie[d] to lunge into the door” and Hughes restrained him from entering because he wanted to make a second pass to determine if “this [was] the real deal.” Hughes redirected him to circle the vehicle. Hughes testified that Rony did not alert outside of the vehicle but gave an alert for the first time when he was inside the vehicle. Rony’s breathing became more intense and when he entered the car, and he began biting and scratching at the driver’s seat. Hughes told him he was a “good boy” and redirected him to search the rest of the car to determine if the saturation point was stronger elsewhere. At one point, Hughes let him off the leash and Rony jumped into the back seat of the car, where he began scratching at the floor of the passenger’s seat, behind the driver’s seat, identifying that as the saturation place. When Rony entered the front driver’s door, Rony passed by the console where the narcotics were located and did not immediately alert. Hughes was not concerned by this because Rony’s nose was never on the console, but Rony alerted within six inches of the source. Hughes explained that he never gave Rony a “cue.”

On cross-examination, defense counsel noted that there were instances in Rony’s training records and reports where he became distracted during a search, failed to detect narcotics, and responded to non-contraband items. Hughes admitted that such instances did occur.

Rony died March 30 or 31, 2009, of Lou Gehrig’s disease, but he did not exhibit symptoms until early March of 2009.

II. Expert Testimony

At the evidentiary hearing on defendants’ motions to suppress, the government objected to the expert testimony of Steven Nicely. The Court took the matter under advisement. Because several issues in defendants’ suppression motions rely on the expert testimony by Steven Nicely, the Court will first address the government’s objections.

A. Daubert Standard

The Court has broad discretion in deciding whether to admit expert testimony. Fed.R.Evid. 702 provides that a witness who is qualified by knowledge, skill, experience, training or education may testify in the form of opinion or otherwise as to scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or to determine a fact in issue, “if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

The proponent of expert testimony must show “a grounding in the methods and procedures of science which must be based on actual knowledge and not subjective belief or unaccepted speculation.” In order to determine whether an expert opinion is admissible, the court performs a two-step analysis. “[A] district court must [first] determine if the expert’s proffered testimony ... has ‘a reliable basis in the knowledge and experience of his discipline.’ ” This requires a preliminary inquiry into the expert’s qualifications and “whether the reasoning or methodology underlying the testimony” is reliable under the standards set by Rule 702. Second, the district court must further inquire into whether the proposed testimony is sufficiently “relevant to the task at hand.” Under Rule 401, relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

“To qualify as an expert, the witness must possess such ‘knowledge, skill, experience, training or education’ in the particular field as to make it appear that his or her opinion would rest on a substantial foundation and would tend to aid the trier of fact in its search for the truth.” In general, “a lack of specialization does not affect the admissibility of [the expert] opinion, but only its weight.” An expert opinion “must be based on facts which enable [him] to express a reasonably accurate conclusion as opposed to conjecture or speculation ... absolute certainty is not required.”

“Reliability questions may concern the expert’s data, method, or his application of the method to the data.” In order to establish reliability, it is not necessary to prove that the expert is “indisputably correct or that the expert’s theory is ‘generally accepted’ in the scientific community,” but only that the “method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which satisfy Rule 702’s reliability requirements.” DaubeH sets forth a non-exhaustive and non-dispositive list of four factors that the trial court may consider: (1) whether the theory used can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance in the scientific community. In Kumho Tire, however, the Supreme Court emphasized that these four factors are not a “definitive checklist or test” and that a court’s gatekeeping inquiry into reliability must be “tied to the facts of a particular case.” In some cases, “the relevant reliability concerns may focus upon personal knowledge or experience,” rather than the DaubeH factors and scientific foundation. The Court’s review is focused “solely on principles and methodology, not on the conclusions that they generate.” “[T]he rejection of expert testimony is the exception rather than the rule.” The proponent of the expert testimony bears the burden of establishing its reliability.

It is within the discretion of the trial court to determine how to perform its gatekeeping function under DaubeH, The most common method for fulfilling this function is a DaubeH hearing, although such a process is not specifically mandated. In this case, the government was given the opportunity to voir dire Mr. Nicely to determine his qualifications at the suppression hearing.

B. Steven Nicely

Mr. Nicely testified on the issue of whether the drug dog in this case was reliable and whether the drug dog gave an alert or indication to the smell of drugs in the vehicle on December 15, 2008. The government argues that Mr. Nicely’s testimony does not qualify under Rule 702 because his method of evaluating the reliability of drug dogs was “not widely accepted in any community.”

Qualifications

At the hearing, the government questioned Mr. Nicely’s educational background and competence to express opinions generally on matters of behavioral science. Nicely has been involved with police dogs since 1973. He started in the military police field training dog handlers, and in 1974, he worked for the Department of Defense Military Working Dog School. Around 1977, he went to the military work dog supervisors’ course, and worked in the military police field with drug detector dogs and patrol dogs until 1979. After completing police training for the State of Texas, he worked at Leon Valley Police Department as a dog handler. He trained professionally in 1989 at the Global Training Academy and trained dogs for law enforcement from 1991-1992. Again, from 1994-2006, he returned to Global Training Academy to train dogs. Currently, he owns two businesses: one devoted to training dog behavior modification for pet dogs, and another business devoted to police dog matters. He also consults with attorneys in preparation for court hearings. Nicely estimates that he has trained 750 dogs for law enforcement purposes, and has trained approximately 400 dog handlers. He has testified in over 50 state and federal cases.

Although Nicely does not have a college degree, he has completed twenty-one formal hours in behavioral science and is in the process of completing his associate’s degree in behavioral science. He has published approximately four or five articles, including a peer-reviewed article published in the November 2009 issue of the Journal of Veterinary Behavior, discussing record keeping and certification procedures for detector dogs.

The Court finds that Nicely has extensive experience in the training of detection dogs and dog handlers for law enforcement purposes. His expertise is largely based on experience, rather than formal education. Although the government noted that Nicely’s behavioral sciences degree is not specifically devoted to canine behavior, Nicely testified that the behavioral sciences apply to all animals, whether human or canine. The Court is not convinced that a specialized degree in behavioral sciences as it applies to drug detection dogs is a necessary prerequisite to providing expert testimony on the relevant issue in this case: the reliability of a drug dog. Nicely’s extensive experience, nearly twenty years experience training 750 dogs for law enforcement purposes and approximately 400 dog handlers and dog trainers, as well as his own experience as a dog handler for nearly twelve years, demonstrate the requisite qualification to testify on drug dog detection behaviors and training methods. Nicely’s extensive experience as a trainer for Global Training Academy has been well-recognized in the law enforcement community. He remains a licensed law enforcement officer and retains a police instructor license from the State of Texas. The Court finds he is qualified to testify as an expert on drug dog training, handling, and detection.

Reliability

More specifically, the government has objected to the reliability of Nicely’s theories on the basis that they are not widely accepted. At the suppression hearing, the government objected:

Your Honor, I don’t see how he can be qualified as an expert. Under 702, he has to show that this is a well accepted standard within the community. Unless they can establish somehow that dog training associations apply this theory, I don’t know how he can be qualified as an expert. It’s his belief that nobody else applies it in the say [sic] way. He’s testified that there’s no standard. He simply wants his standard to be the standard. That doesn’t make him an expert. That just give him his opinion.

In Daubert, the Supreme Court expressly held,

“General acceptance” is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence — especially Rule 702 — do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.

Nicely testified that he uses a training method called “operant conditioning,” which is based in the behavioral sciences. Under this method, the subject exhibits a behavior and the trainer gives positive reenforcement when the correct behavior is exhibited and negative or no reenforcement when the incorrect behavior is exhibited. Nicely advocates for a thorough record-keeping process — in training exercises, certification processes, and in the field— that would allow another person to reproduce the tests and determine the reliability of a drug detection dog on the basis of well-kept records. He argues that detailed record keeping allows for an objecfive analysis of reliability. Although most drug dog training certification programs do not use the behavioral sciences as a method of training, Nicely testified that the United States Department of Defense uses such methods to train dogs for drug detection, bomb detection, and general patrol purposes. In fact, Nicely himself uses this method in training and certifying drug detection dogs, and uses a textbook entitled How Dogs Learn, which applies the behavioral sciences to dogs, in his courses to train trainers. As the government noted, there is no uniform standards for drug dog certification across the nation. And Nicely testified that there is growing criticism of current drug certification standards. Thus, in a field that lacks uniformity, the government’s apparent concern with the novelty of Nicely’s method does not overcome the admissibility of his testimony.

In preparation for the suppression hearing, Nicely reviewed the dog training records of Rony from 2005 until 2009, as well as his certification, in order to evaluate Rony’s reliability as a drug dog. He also watched the police video from the traffic stop on December 15, 2008, to evaluate the dog handler’s methods and the reliability of the alert given by Rony. Nicely never interviewed Rony’s handler, James Hughes, but explained that, assuming the records are truthful, they are the most direct source of information on Rony’s response rate. Nicely prepared a written report in addition to his testimony.

Nicely bases his opinion on his experience and expertise, as well as his investigation. In this case, “the relevant reliability concerns may focus upon personal knowledge or experience,” rather than the Daubert factors and scientific foundations. Nicely has chosen to train animals on the basis of lessons learned in the behavioral sciences, a discipline that is devoted to the study of human and animal behavior. Because Nicely’s “method” does not involve application of any controversial scientific process or theory, the Daubert factors are of less utility. Nicely’s method is sufficiently reliable for purposes of Rule 702, and the Court denies the government’s oral motion with respect to this testimony. “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” The government was given the opportunity to cross-examine Nicely at the hearing and to present opposing expert testimony. The Court finds the government’s objections go to the weight of Nicely’s testimony, rather than its admissibility-

C. Expert Testimony at Suppression Hearing

Steven Nicely defined a “well-trained dog” as one that “will only reveal the presence or the absence of drugs, a contraband item.” That means “the animal had to be under the stimulus control of the discriminate stimulus.” Nicely testified that he did not consider Rony to be a “well-trained dog” because, based on his records, he occasionally exhibited a response when the stimulus was not present, and the dog handler did not apply an “extinction training” to eliminate or reduce the probability of repeat behavior. In other words, when Rony responded incorrectly, the handler failed to do thorough follow-up to correct the problem. Additionally, Nicely was troubled by Rony’s failure to respond to 100 pounds of marijuana.

Nicely noted that a dog will often respond to “novel” smells, which a handler might misconstrue as an alert. Thus, the handler rushes to a conclusion before the dog makes a final decision on the matter. Nicely also explained that, with regard to drug detection dogs, motivation cannot be taught. However, handlers will often use a “scratch box” to intensify the dog’s response to a stimulus.

Nicely testified about the Clever Hans Effect on animals. When incorrectly trained, a dog will look to the handler’s actions to determine when to give its response rather than to rely on the presence or absence of the stimulus. Nicely calls this “subconscious cuing” or “prompt dependency.”

Nicely argued that he was unable to do a thorough review of Rony’s reliability because the records supporting his certification were not sufficiently detailed. Nicely stated, “[i]f I can’t measure it, then it’s speculation.” Nicely used figures provided in Rony’s field records and calculated a 38% accuracy rate: out of seventy responses, there were only thirty detectable finds (¿a, those actually confirmed).

Nicely reviewed the video of the traffic stop on December 15, 2008. He testified that the dog did not appear to be focused because he was often looking away from the vehicle and the handler was “attempting to jerk the dog over.” When the handler bent over toward the opened passenger door, Nicely considered such action “consistent with the gesture of putting the dog in the car.” Although Nicely noted that it was not possible to see the dog inside the vehicle, he believed the dog did not exhibit the kind of interest in the car a dog might if he detected something. Nicely testified that he did not believe Rony gave any alert.

Kenneth Wallentine testified on behalf of the government. He worked in private practice and served as a clerk for district court and the appellate court judges. In 1994, he was trained as a dog handler and worked in this capacity until 2001 and has published multiple peer-reviewed articles and books relating to canines. He currently works for the Attorney General for the State of Utah and is a member of the United States Police Canine Association and the California Narcotics Canine Association, as well as an invitation group called the Scientific Working Group on Dogs and Orthogonal Detector Guidelines (“SWGDOG”), which was organized under the Federal Bureau of Investigation and the Department of Homeland Security and Transportation and Safety Administration. He worked with 300 to 400 dogs in a supervisory capacity or through maintenance training and problem solving.

In preparation for the hearing, Wallentine interviewed Deputy Hughes three times, reviewed the training records and field reports for Rony, as well as the incident report and police video from December 15, 2008, and prepared a written report. Wallentine testified that he shared some of Nicely’s concerns after reviewing the records, specifically, whether Rony had been proofed off items that had previously served as distractors, such as hotdogs. Wallentine’s interview with Hughes resolved many of those questions. Wallentine believed Hughes was candid and forthright as well as humble. Hughes explained that he was receiving ongoing training from other handlers and, through this, he improved his record-keeping practices over time. Wallentine explained that, because animal performance changes over time, the best indicator of present and future behavior is recent past performance. Wallentine testified that the most relevant records in this case are six to twelve months prior to the incident in December 2008. He explained that the most significant event in that time frame was Hughes and Rony’s successful certification as a team by HAPDA in October of 2008, only months before the incident. Certification usually occurs annually, and at all times Rony was in service, he was certified.

Wallentine reviewed the certification standards of HAPDA and compared them to standards in other major police dog service organizations across the country and found that HAPDA’s standards were consistent with the two largest in the country. Wallentine testified that Rony’s certification was based on “single blind testing,” in which the handler is unaware whether narcotics are present. Only the judge/evaluator knows what is in the controlled environment. Single blind testing is considered a “best practice” at SWGDOG. Wallentine also testified that Hughes’s 16-hours of monthly training was standard practice. Based on “known” searches in training and certification, Wallentine determined that Hughes and Rony were 92% reliable over the five years prior to the incident; they were 91.74% reliable in the two years preceding the incident. Wallentine stated that reliability determinations are best made on the basis of a dog’s training and certification records, because there is no way to determine whether a dog’s alert in the field may have accurately identified an odor the officers were unable to confirm.

Wallentine explained that dogs frequently become overwhelmed when exposed to large amounts of narcotics. They are not generally exposed to such large amounts in training or in the field, and they experience sensory overload. Wallentine testified that dual purpose training (for drug detection and patrol use), is not uncommon among dogs and does not make a dog less reliable in itself. Wallentine considers it problematic that Rony was not trained in a negative testing environment. That is, Rony was not tested in an environment where drugs were absent.

Wallentine reviewed the video of the traffic stop and noted that air currents were likely shifting during Rony’s sniff. The door was closed on the driver’s side but was open on the passenger side, and hot air was exiting the car while cold air was entering it. Although Wallentine thought it unnecessary for Hughes to do a second sniff of the vehicle before allowing the dog to enter, he understood that Hughes wanted to be “fair” and do a second check. Wallentine explained that the foam material on the edge of the seat likely absorbed some of the narcotics odor, causing Rony to believe he had found the saturation place in the seat instead of the driver’s door.

III. Discussion

Both defendants appear to focus on the following arguments: (1) the initial stop was unlawful; (2) the detention exceeded the scope and duration of the initial stop, and was unreasonably prolonged to allow the drug dog to arrive; (3) the drug dog was unreliable and did not provide probable cause to search the vehicle; (4) defendants’ arrests were not based on probable cause; (5) the impoundment of the vehicle and the inventory search were unlawful; and (6) evidence obtained was fruit of the poisonous tree. The government argues that Elenes-Mombela does not have standing to challenge the search of the vehicle.

A. Initial Stop

Defendants argue the initial stop was unlawful because it was not supported by (a) probable cause or reasonable suspicion to believe criminal activity or a traffic violation had occurred, was occurring, or was about to occur, (b) probable cause to believe evidence of a crime was present in the vehicle, or (c) a valid arrest or search warrant. The government argues that Officer Garcia’s subjective motives are irrelevant, and objectively, there was reasonable, articulable suspicion to believe defendants’ window tinting violated K.S.A. § 8-1749a(a)(3). Defendants have submitted evidence regarding the tint on the windows, arguing that no reasonable person would have believed the windows violated Kansas’ window-tinting statute.

Under the Fourth Amendment, a traffic stop is a “seizure” which is reasonable only if (1) the officer’s action was “justified at its inception,” and (2) the detention was “reasonably related in scope to the circumstances which justified the interference in the first place.” In Arizona v. Johnson, the Supreme Court recently explained that “the first Terry condition — a lawful investigatory stop — is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation,” and the police need not believe the vehicle is involved in criminal activity. Tenth Circuit cases establish that, before stopping an automobile, an officer must have “an objectively reasonable articulable suspicion” to believe a violation of any “applicable traffic or equipment regulation[ ]” has occurred or is occurring. Reasonable suspicion may be supported by an “objectively reasonable” good faith belief even if premised on factual error. Furthermore, “reasonable suspicion may rely on information less reliable than that required to show probable cause ... and it need not be correct.” The subjective motives of the officer and the practices of his department are irrelevant in deciding whether a particular stop is reasonable. The Tenth Circuit has stated, “we rightly leave to the state legislatures the task of determining what the traffic laws ought to be, and how those laws ought to be enforced.”

Kansas statute § 8-1749a(a)(3) provides that

No motor vehicle required to be registered in this state and which is operated on the highways of this state shall be equipped with one-way glass or any sun screen device, ... and used in conjunction with safety glazing materials that do not meet the following requirements: ... (3) the total light transmission shall not be less than 35% when a sun screening device is used in conjunction with safety glazing materials or other existing sun screening devices.

Subsection (e)(1) states that “after January 1, 1988, violation of the statute constitutes a misdemeanor.

Prior to the statute’s amendment, eliminating the word “substantially,” the Kansas Supreme Court explained the rationale behind the law:

By definition the term [“substantially”] is relative and must be considered within the context of the particular fact situation; ... The statute prohibits motor vehicles from being equipped with one-way glass or other substances applied to the windows ... which prohibits or substantially impairs the ability to see into the motor vehicle from the outside. The gravamen of the offense is clearly the impairment of visibility into the motor vehicle from the outside.

In 2008, the Kansas Court of Appeals explained that an officer’s “reasonable suspicion” that a vehicle’s windows violate the window-tint law is limited to the facts available to him or her prior to the traffic stop: “ ‘Neither the concepts of probable cause nor “articulable suspicion” would require that an officer have tint meter readings before making a stop for a window tint violation.’ ” Furthermore, in reviewing a motion to suppress, the Tenth Circuit has stated, “it is not our role to decide whether the present facts are adequate to affirm a conviction under the applicable ... traffic statute,” but to “inquire solely as to whether the facts are adequate to form an objectively reasonable suspicion” that a traffic statute has been violated.

In the present case, the evidence shows that Officer Garcia had an objectively reasonable suspicion that defendants’ windows violated K.S.A. § 8-1749a(a)(3), even though defendants were able to perform a subsequent window transparency test with different results than those obtained by Officer Garcia. Defendants have admitted pictures of the windows taken on a sunny day with one or more of the windows rolled down. In the pictures, the light shines through a single window pane well. However, the transparency of a particular set of windows on a particular day depends, to some extent, on a comparison with other vehicles traveling on the roads that day. The Court has reviewed the videotape of the traffic stop taken during the winter months, in the afternoon of December 15, with clouds overhead and all widows rolled up. While weather conditions will inevitably affect an officer’s ability to see into a traveling vehicle, the Court notes that a suspected window tinting violation may also be relative to other cars. In deciding whether the officer’s suspicions were reasonable, a court is to consider whether the facts “viewed from the standpoint of an objectively reasonable police officer ... establish a minimal basis for reasonable suspicion.” The Court notes that defendants’ windows appeared substantially darker than surrounding vehicles traveling on the road that day. When the windows are viewed on the video and the pictures provided by defense counsel, they appear sufficiently dark to form a “reasonable articulable suspicion” that they violated K.S.A. § 8-1749a(a)(3).

Here, Officer Garcia believed the window tinting was “substantially dark,” and after approaching the vehicle, Officer Garcia’s reasonable suspicions were confirmed when he performed a window transparency test that revealed that the windows permitted only 15% of light to pass through, which is 20% below the 35% limit set by Kansas law. There is a significant difference between the transparency of defendants’ windows and the legal limit. Thus, Officer Garcia had a reasonable articulable suspicion of an equipment violation and, on this basis, the stop was justified at its inception.

B. Scope and Duration of Detention

Even if the initial stop was valid, defendants argue the length and purpose of the stop was extended beyond its initial justification merely to await the arrival of the drug-detection canine. Defendant Elenes-Mombela also argues that the police unlawfully withheld his identification after the checks were performed, and thus, his detention and removal from the car were illegal. The government responds that, because the driver failed to produce a valid driver’s license, Officer Garcia had reasonable, articulable suspicion of illegal activity and was permitted to investigate further regarding the driver’s identity and whether he had a valid driver’s license to operate the vehicle. Because Elenes-Mombela’s identification card did not permit him to operate the vehicle lawfully, the officers were permitted to detain the passenger to investigate the driver.

Even if the initial stop of defendant’s vehicle was legitimate, the detention must be “reasonably related in scope to the circumstances which justified the interference in the first place.” “Generally, an investigative detention must last no longer than is necessary to effectuate the purpose of the stop.” However, in the course of a routine traffic stop, an officer may “request vehicle registration and a driver’s license, run a computer check, ask about travel plans and vehicle ownership, and issue a citation.” An officer may also run a simultaneous check of the detainees’ criminal history. Even an officer who stops a driver for violating “any one of the multitude of applicable traffic and equipment regulations of the jurisdiction” may request identification and run a registration check. Furthermore, during a traffic stop, an officer may order the driver and all occupants to exit the vehicle.

Thereafter, “when a driver has produced a valid license and proof of entitlement to operate the vehicle, an officer may issue a citation, but then usually must allow the driver to proceed without further delay or questioning.” An officer is “justified in perpetuating the stop long enough to determine whether the license [is] in fact valid,” but once a driver has produced a valid driver’s license, prompt release is required. “A stop generally ends when the officer returns the driver’s license, registration, and insurance information.” “[F]urther detention for purposes of questioning unrelated to the initial traffic stop is permissible if the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring.”

Here, Officer Garcia did not believe the occupants had produced paperwork that would permit them lawfully to operate the vehicle. Although the stop was initiated for a suspected window-tint violation, that purpose changed when Officer Garcia requested the driver’s license and Beltran-Palafox produced a Mexican driver’s license. Dispatch was unable to locate the license or identify the driver, and the passenger was only carrying a Mexican identification card.

At the time of the traffic stop, Officer Garcia articulated concern that he did not believe Beltran-Palafox’s license was valid. Thus, he was permitted to detain defendants further to determine whether the driver, Beltran-Palafox, or the passenger, Elenes-Mombela, could lawfully operate the vehicle. He asked dispatch to run variations of Beltran-Palafox’s name, but dispatch stated that nothing was listed that would suggest he had a valid license. The Court finds that, under these circumstances, the duration of the detention was justified by the need to confirm whether the vehicle was being lawfully operated. The duration of the traffic stop, from its inception until Beltran-Palafox’s arrest, was approximately twenty-one minutes. Under the totality of the circumstances, the Court finds this period of time was not unreasonable.

Defendants also challenge Officer’s Garcia’s decision to call for a canine unit before approaching the vehicle or questioning the occupants. The Tenth Circuit has held that a dog sniff, deployed during a lawful seizure, “is not a ‘search’ within the meaning of the fourth amendment and therefore an individualized reasonable suspicion of drug-related criminal activity is not required” before the animal is deployed. Because the Court finds the seizure was lawful in this case, Officer Garcia’s decision to call for a drug dog was not unlawful.

C. Arrest of Beltran-Palafox

Luis Beltran-Palafox challenges the legality of his arrest on the grounds that he had a valid Mexican driver’s license to operate the vehicle. Officer Garcia testified that the City of Salina instructed officers that a Mexican driver’s licenses was not valid, and Lt. Norton directed Officer Garcia to make the arrest. The government argues alternatively that there was probable cause to arrest Beltran-Palafox for committing a misdemean- or in Officer Garcia’s view.

To make a warrantless arrest, there must be probable cause. There is probable cause “when an officer, considering the totality of the circumstances before him, is led to a reasonable belief that an offense has been or is being committed by the suspect.” In other words, “[p]robable cause exists if facts and circumstances within the arresting officer’s knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense.” “Probable cause is based on the totality of the circumstances, and requires reasonably trustworthy information that would lead a reasonable officer to believe that the person about to be arrested has committed or is about to commit a crime.” The Tenth Circuit has held that the collective knowledge of officers may, in some circumstances, establish probable cause:

It is well-established that when an order to stop or arrest a suspect is communicated to officers in the field, the underlying facts constituting probable cause or reasonable suspicion need not be communicated, so long as the individual or agency issuing the order can justify the intrusion on Fourth Amendment rights.

The Court is unpersuaded there was probable cause to arrest Beltran-Palafox for driving with a Mexican driver’s license. The government did not cite any authority, state, federal, or municipal, for Beltran-Palafox’s arrest on the basis of driving with a Mexican driver’s license. In fact, Officer Garcia stated that a driver traveling through the State of Kansas may lawfully operate a vehicle with a Mexican driver’s license. He explained that he made the arrest upon instructions of Lt. Norton. However, the government has not produced any facts known to Officer Garcia or other officers from whom he was receiving instructions that would show the presence of probable cause for an arrest on the basis of Beltran-Palafox’s driver’s license. At the suppression hearing, Officer Garcia testified that, when he approached the vehicle, he did not know Luis Beltran-Palafox’s identity or destination and he had never before seen the vehicle or its occupants. Furthermore, he did not inquire into these facts during the traffic stop.

Simply put, probable cause is unsubstantiated. There was reasonable suspicion Beltran-Palafox had an invalid license, but that Officer Garcia testified it also might have been valid. Any facts known to the officers are unknown to the Court. The Court declines to speculate whether probable cause to arrest Beltran-Palafox for his driver’s license might have been established under additional or different facts, when the government has failed to provide any facts upon which it relies.

The government, however, has stated an alternative basis for the arrest. It argues that Officer Garcia had probable cause to arrest Beltran-Palafox for violating K.S.A. § 8-1749a(a)(3). United States Supreme Court has held that an officer’s subjective reasons for making an arrest “need not be the criminal offense as to which the known facts provide probable cause.” In other words,

The Court explained that the subject intent of the officer — ie., his reason for making the arrest — cannot be used to invalidate an otherwise legitimate arrest. The correct inquiry is rather whether “the facts known to the arresting officers given probable cause to arrest.” ... [T]he probable cause inquiry is not restricted to a particular offense, but rather requires merely that officers had reason to believe that a crime — any crime — occurred.

The court’s inquiry is “an independent and objective one. Thus an officer’s own subjective reason for the arrest is irrelevant, and it does not matter whether the arrestee was later charged with a crime.”

Officer Garcia had reasonable suspicion to believe there was a violation of K.S.A. § 8-1749a(a)(3), at the time he stopped the vehicle. The law regarding window tinting applies to all motor vehicles “required to be registered in this state and which [are] operated on the highways of this state.” After approaching the vehicle and performing a tint test that demonstrated a potential violation, Officer Garcia had probable cause to believe the occupants were in violation of K.S.A. § 8-1749a(a)(3), which is a misdemeanor.

K.S.A. § 22-2401 sets out law enforcement’s general powers of arrest. Subsection (d) authorizes an officer to arrest any person for “any crime” committed in the officer’s view. The statute only excludes traffic infractions, and cigarette or tobacco infractions. The term “traffic infraction” is defined in K.S.A. § 21-3105(2) as “a violation of any of the statutory provisions listed in subsection (c) of K.S.A. 8-2118 and amendments thereto.” The Kansas Court of Appeals has explained that when a statute is not listed among the statutes in K.S.A. 8-2118(c), it is not a traffic infraction. K.S.A. § 8-1749a is not listed among statutes in K.S.A. 8-2118(c). “Therefore, under the plain and unambiguous language of K.S.A. 21-3105(2),” a violation of the window tinting statute is not a traffic infraction, or a cigarette or tobacco infraction, and it is not excepted under § 22-2401. The window-tint violation clearly occurred in Officer Garcia’s presence and was confirmed by the tint meter. Thus, the Court finds there was probable cause for Beltran-Palafox’s arrest.

Additionally, in Virginia v. Moore, the Supreme Court held that when police officers have probable cause to believe a person has committed a crime in their presence, the Fourth Amendment permits a warrantless arrest — and a search incident to that arrest — regardless of whether the crime qualifies as an arrestable offense under applicable state law.” The Court finds that the facts available to Officer Garcia established probable cause to believe Beltran-Palafox had violated K.S.A. 8-1749a(a)(3), justifying his arrest and the search-incident-to-arrest.

D. Search of the Vehicle

Defendants argue that no one gave consent to the search of the vehicle, there was no valid warrant, and there was no warrant exception. They argue the stop was unreasonably prolonged to allow the drug dog to arrive and perform the sniff; furthermore, it was not a valid search-incident-to-arrest.

The government argues that the drug dog sniff was part of the traffic stop, and he gave a valid alert, therefore, no Fourth Amendment rights were implicated. Alternatively, it argues that the canine was deployed as part of a seareh-incident-toarrest under New York v. Belton, Because the search occurred before Arizona v. Gant was decided, the government asks the Court to apply the good faith exception.

1. Search-Incident-to-Arrest

The search-incident-to arrest exception to the warrant requirement is intended to “ensure officer safety and prevent the concealment or destruction of evidence.” It may “only include ‘the arrestee’s person and the area “within his immediate control” ... meaning] the area from within which he might gain possession of a weapon or destructible evidence.’ ” Since the Supreme Court decided Arizona v. Gant, “the scope of a search [incident to arrest] must be strictly tied to and justified by the circumstances which rendered its initiation permissible.” Thus, “[pjoliee may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” “In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence.” “[A] search incident to arrest can also precede the arrest if probable cause for the arrest preceded the search (rather than being justified by the fruits of the search).”

In United States v. McCane, the Tenth Circuit held that, if the search was performed before the Supreme Court decided Arizona v. Gant, on April 21, 2009, then the officers may claim the “good faith” exception to the exclusionary rule so long as their actions conformed to the pre-Gcmi standards for a search-incident-to-arrest. Prior to Gant, under Tenth Circuit precedent, an officer was permitted to search the passenger compartment of a vehicle upon the arrest of a recent occupant, regardless of whether the arrestee was already restrained and regardless of the nature of the offense for which he was arrested.

Here, Officer Garcia lawfully arrested Beltran-Palafox on the basis of probable cause to believe Beltran-Palafox was operating a vehicle with windows that violated K.S.A. § 8-1749a(a)(3). Because the arrest occurred on December 15, 2008, before the Supreme Court decided Arizona v. Gant, the subsequent search of the passenger compartment was a vali