Drug evidence tossed due to illegal search

Judge rules Highway Patrol trooper lacked reason to extend traffic stop.
By Pamela Manson



Updated: 01/14/2010 06:20:47 PM MST


Twice after he told a speeding motorist he was free to go, a Utah Highway Patrol trooper started to walk away but came back to ask more questions. Even after the driver refused to give permission for a search of his truck, the lawman told him to wait while he retrieved a consent form from his cruiser.

And although Lucio Flores-Loza did not complete the form as instructed but only printed his name on the signature line, Officer Lars Gardner searched the vehicle.

Those circumstances added up to an illegal detention and made Flores-Loza's consent to search the truck invalid, according to U.S. District Judge Clark Waddoups, who on Monday tossed out as evidence the large amount of methamphetamine found in the vehicle.

Court records say Flores-Loza was stopped May 10 on Interstate 70 near Green River for exceeding the speed limit. A computer check showed that the vehicle was not reported stolen and Flores had a valid driver's license and no warrants for his arrest.

Gardner testified at a court hearing that he was still suspicious because Flores-Loza appeared nervous, had a limited amount of clothing in the back seat, was Latino and was not the owner of the two-door, extended cab truck. So after giving Flores-Loza a ticket and saying he "was good to go," the trooper kept asking questions.

Waddoups wrote in his ruling that it is unclear how much of the conversation Flores-Loza understood because he is not fluent in English and Gardner knows little Spanish. Flores-Loza, of San Bernardino, Calif., did say he had borrowed the vehicle from a friend.

Defense attorney Benjamin McMurray says Flores-Loza repeatedly refused to answer questions but Gardner wouldn't stop.

"By persisting in his questioning, Trooper Gardner conveyed to Mr. Flores that he was not free to leave," McMurray wrote in a court brief. "Indeed, no reasonable person would have felt free to drive away from an officer who continued an interrogation despite having repeatedly been refused."

McMurray also said the consent-to-search form was poorly translated into Spanish, contained nonwords and implied that Flores-Loza could be agreeing to have the vehicle registered.

In his ruling, Waddoups said the traffic stop itself was legal and it appears that Gardner did not engage in "flagrant misconduct."

But the judge pointed out that the trooper has testified that Flores-Loza was truly free to go after getting the citation, meaning he had no reasonable suspicion to continue questioning him. Therefore, Waddopus said, the search was unlawful and the drugs cannot be used as evidence.

Based on that conclusion, Waddoups did not address whether the consent form was so defective that it was invalid.

Melodie Rydalch, a spokeswoman for the U.S. Attorney's Office, said Wednesday that prosecutors are reviewing the ruling and weighing their options.

pmanson@sltrib.com


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