Predatory Lending-Is it a Crime?

US Department of Housing & Urban Development:

Over the last several years, our nation has made enormous progress in expanding access to capital for previously under served borrowers. Despite this progress, however, too many families are suffering today because of a growing incidence of abusive practices in a segment of the mortgage lending market. Predatory mortgage lending practices strip borrowers of home equity and threaten families with foreclosure, destabilizing the very communities that are beginning to enjoy the fruits of our nation’s economic success.

Since the Spring of 1999, HUD has been actively involved in combating predatory lending through research, regulation, consumer education and enforcement actions against lenders, appraisers, real estate brokers, and other companies and individuals that have victimized homebuyers. Read HUD-Treasury Joint Report on predatory lending.

If you believe you have been a victim of predatory lending practices there are Federal agencies that can help. Please refer to the list of agencies below and contact the organization or agency that you think can help address your specific problem.

Protect yourself from predatory lenders: For information about loan fraud and advice about preventing it, see Don't Be A Victim of Loan Fraud.

Local information on predatory lending: Here are some Local Resources by state, that can help you avoid being a victim of predatory lending.

For FHA loans: For problems relating to origination, underwriting, or appraisals contact the FHA Resource Center at (800) CALL-FHA / (800) 225-5342.

Avoiding foreclosure on an FHA loan: Visit the HUD National Servicing Center web page or contact them toll-free at (800) CALL-FHA / (800) 225-5342.

Non-FHA mortgage loans: For complaints concerning practices which include disclosure of interest rates and finance charges (APR), prepayment penalties, credit life insurance, fraud, deception, etc. contact the appropriate agency from this list to complain about the mortgage lender or mortgage broker.

Lender threatening to foreclose or mortgage in default: HUD funds housing counseling agencies throughout the country. To find a housing counseling agency near you, call toll-free (800) 569-4287 immediately for free guidance or visit the web page.

Settlement Procedures: (FHA and non-FHA mortgages). Visit the RESPA web page for information on RESPA disclosure requirements such as the Good Faith Estimate, HUD-1 and escrow account statements, and how to file a complaint with your lender concerning the servicing of your loan.

If you are still unsure who can best help you, please let us know.

File a housing discrimination complaint: Discrimination in mortgage lending is prohibited by the federal Fair Housing Act and HUD's Office of Fair Housing and Equal Opportunity actively enforces those provisions of the law. Learn how the Fair Housing Act can help you fight predatory lending.



Content updated March 5, 2008


Judge Finn

Federal Reserve Board Aims to Curtail Predatory Lending Practices

Highlights of Proposed Rule to Amend Home Mortgage Provisions of Regulation Z

The proposal would establish a new category of “higher-priced mortgages” that should include virtually all subprime loans.1 The proposal would, for these loans:

Prohibit a lender from engaging in a pattern or practice of lending without considering borrowers’ ability to repay the loans from sources other than the home’s value.

Prohibit a lender from making a loan by relying on income or assets that it does not verify.

Restrict prepayment penalties only to loans that meet certain conditions, including the condition that the penalty expire at least sixty days before any possible payment increase.

Require that the lender establish an escrow account for the payment of property taxes and homeowners’ insurance. The lender may only offer the borrower the opportunity to opt out of the escrow account after one year.

The proposal would, for these and most other mortgages:

Prohibit lenders from paying mortgage brokers “yield spread premiums” that exceed the amount the consumer had agreed in advance the broker would receive. A yield spread premium is the fee paid by a lender to a broker for higher-rate loans.

Prohibit certain servicing practices, such as failing to credit a payment to a consumer’s account when the servicer receives it, failing to provide a payoff statement within a reasonable period of time, and “pyramiding” late fees.
Prohibit a creditor or broker from coercing or encouraging an appraiser to
misrepresent the value of a home.

Prohibit seven misleading or deceptive advertising practices for closed-end loans; for example, using the term “fixed” to describe a rate that is not truly fixed. It would also require that all applicable rates or payments be disclosed in advertisements with equal prominence as advertised introductory or “teaser” rates.
Require truth-in-lending disclosures to borrowers early enough to use while shopping for a mortgage. Lenders could not charge fees until after the consumer receives the disclosures, except a fee to obtain a credit report.

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Footnotes

1. Higher-priced mortgages would be those whose annual percentage rate (APR) exceeds the yield on Treasury securities of comparable maturity by at least three percentage points for first-lien loans, or five percentage points for subordinate-lien loans. Return to text





David Finn

Nice Motion by Clint Broden

UNITED STATES DISTRICT COURT
SOUTHER DISTRICT OF IOWA
DAVENPORT DIVISION

UNITED STATES OF AMERICA, CRIMINAL ACTION NO.
)
Plaintiff, ) 3:03-CR-80
)
v. )
)
JOHN ADAMS THROPAY, )
)
Defendant. )
)






SUPPLEMENT TO MOTION TO VACATE , SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255BY A PERSON IN FEDERAL CUSTODY









F. Clinton Broden
Tx. Bar 24001495
Broden & Mickelsen
2707 Hibernia St.
Dallas, Texas 75204
214-720-9552
214-720-9594 (facsimile)
TABLE OF CONTENTS

TABLE OF CONTENTS i

TABLE OF AUTHORITIES ii

I. ROADSIDE VIDEO 1

II. TROOPER GUILL’S TRIAL TESTIMONY 4

III. DISCUSSION 6

A. Ineffective Assistance of Counsel 6
B. Mr. Thropay’s Consent to Search was not Valid and No Reasonable Suspicion Existed to Otherwise Search His Vehicle. 7

1. Principles of Law 7

2. Precedent 9

a. United States v. Jones, 234 F.3d 234 (5th Cir. 1999) 9

b. United States v. Dortch, 199 F.3d 193 (5th Cir. 1999) 10

c. United States v. Santiago, 310 F.3d 336 (5th Cir. 2002) 12

d. United States v. Perkins, 348 F.3d 965 (11th Cir. 2003) 12

e. United States v. Beck, 140 F.3d 1129 (8th Cir. 1998) 14

f. United States v. Jones, 269 F.3d 919 (8th Cir. 2001) 16

3. Instant Case 17

IV. CONCLUSION 19

CERTIFICATE OF SERVICE 21


TABLE OF AUTHORITIES

Illinois v. Caballes, 543 U.S. 405 (2005) 7

Joshua v. Dewitt, 341 F.3d 430 (6th Cir. 2003) 6-7, 19

United States v. Beck, 140 F.3d 1129 (8th Cir. 1998) 14-17, 19

United States v. Dortch, 199 F.3d 193 (5th Cir. 1999) 8, 10-12, 17, 19

United States v. Jones, 234 F.3d 234 (5th Cir. 1999) 9-10, 12, 17, 19

United States v. Jones, 269 F.3d 919 (8th Cir. 2001) 8, 16

United States v. Lambert, 46 F.3d 1064 (10th Cir. 1995) 8

United States v. Perkins, 348 F.3d 965 (11th Cir. 2003) 13-14, 18

United States v. Santiago, 310 F.3d 336 (5th Cir. 2000) 8, 12-13, 17, 19

United States v. Wood, 106 F.3d 942 (10th Cir. 1997) 19


John Adams Thropay has finally obtained the videotapes of his roadside stop by Trooper Bryan Guill which ultimately led to the seizure of the drugs for which he was convicted. The videotapes were introduced at trial as Government’s Exhibits 1 and 2 and a combined videotape is submitted as Attachment A to this Supplement. As discussed below, the videotape establishes beyond peradventure that Mr. Thropay had a meritorious suppression motion which his trial counsel failed to research and pursue.

I. ROADSIDE VIDEO
The videotape of the roadside stop reveals that Mr. Thropay was driving a car, with Sabrina Laprade as a passenger, that was stopped by Iowa State Trooper Bryan Guill at approximately 11:14:00 on February 17, 2003. When Trooper Guill approaches Mr. Thropay’s vehicle, the following discussion takes place through the open driver’s window between Trooper Guill and Mr. Thropay:
1. Trooper Guill tells Mr. Thropay he was going a little fast

2. Trooper Guill asks Mr. Thropay where they (Mr. Thropay and Ms. Laprade) are going and Mr. Thropay responds that they are going someplace warm because their heater is broken

3. Trooper Guill asks where they are coming from and Mr. Thropay responds, “El Paso.”

4. Trooper Guill asks where they are coming from today and the response is unintelligible.

5. Trooper Guill asks where their luggage is and Mr. Thropay responds that it is in the trunk.

6. Trooper Guill tells Mr. Thropay that his speed was 90 miles per hour.

At approximately 11:15:14, Trooper Guill returns to his vehicle to run a license check on Mr. Thropay’s vehicle and a records checks on Mr. Thropay and Ms. Laprade. The dispatcher first responds at 11:19:42 and then at 11:22:25 responds again and tells Trooper Guill that Mr. Thropay has a prior conviction for marijuana sale in California. At approximately 11:23:58 before returning to the Mr. Thropay’s vehicle, Trooper Guill asks the dispatcher to locate a drug dog to come to the scene.
Trooper Guill returns to Mr. Thropay’s car at 11:24:31 and orders Mr. Thropay to come back to the patrol car so that he can “explain the ticket.” When Trooper Guill and Mr. Thropay return to the patrol car, rather than “explain[ing] the ticket,” Trooper Guill peppers Mr. Thropay with a barrage of questions, including:
-Who did you buy the car from?
-Why doesn’t the heater work?
-Where are you coming from?
-Why did you take that route?
-Where are you going?
-Do you have an insurance card?
-When did you buy the car?
-How do you know Ms. Laprade?
-How long have you been dating Ms. Laprade?
-Is there anything in the car that I should know about?
-Do you have any objection if I go through the car?
-Do you still live in California?

During the entire time, the videotape establishes that Trooper Guill retained Mr. Thropay’s license.
At 11:29:50, Trooper Guill again asks the dispatcher to locate a drug dog and tells the dispatcher, “Let them know it is pretty good!” At 11:33:28, the dispatcher notifies Trooper Guill that a dog has been located.
At 11:34:01, Trooper Guill approaches the passenger side of the vehicle and questions Ms. Laprade as to where she and Mr. Thropay were headed, where they came from and if there was anything in the car that he should know about and he then brings Ms. Laprade back to the patrol car.
From 11:39:22-11:41:17, Trooper Guill searches Mr. Thropay's car after obtaining his signature on a consent to search form. It is not until 11:42:18 that he tells Mr. Thropay that he ordered a drug dog and that it would be there shortly. In the interim he asks Mr. Thropay what he does for a living and Mr. Thropay tells him he does “data entry.”
The drug dog arrives at approximately 12:08:24, almost one hour after Trooper Guill originally stopped Mr. Thropay. During the entire time, Trooper Guill retained Mr. Thropay’s license and resisted providing him the speeding citation. Indeed, the speeding citation that was ultimately issued does not contain Mr. Thropay’s signature and instead states “In Jail.” See Attachment C hereto.

II. TROOPER GUILL’S TRIAL TESTIMONY
Trooper Guill testified at trial that, upon his stop of Mr. Thropay’s vehicle, it appeared “odd” that “the passenger and driver were wearing a stocking hat and coat.” See Tr. at 12:14-18. Of course, the videotape indicates that Mr. Thropay told him that the car’s heater was not working. Trooper Guill admitted on cross examination that “with a broken heater in the middle of February it wouldn’t be unusual to be wearing a coat and stocking cap in a car.” Id. at 51:18-21.

Trooper Guill also testified that it was “odd” to him that the vehicle was registered in Texas when both Mr. Thropay and Ms. Laprade had California identification. Id. at 12:20-22. He also found it “odd” that there was no luggage visible in the vehicle. Id. at 12:23:24. Of course, the videotape indicates, quite naturally, that the luggage was ultimately found in the closed trunk of the sedan.
Trooper Guill claimed that the “driver appeared to be a little nervous” and “[t]he passenger avoided eye contact” with him. Id. at 12:18-19. Nevertheless, he acknowledges on the videotape that Ms. Laprade was sleeping when he originally stopped the vehicle.

Trooper Guill testified that, given these “odd facts,” he brought Mr. Thropay back to his patrol car to question him. Id. at 16:2:14. He claims to have made “casual conversation” with Mr. Thropay at this point as to where he and Ms. Laprade were coming from and where they were going. Id. at 16:10-17. He also claimed, although his testimony is belied by the videotape, that it was only after he took Mr. Thropay to the patrol car that Mr. Thropay told him the car’s heater was broken. Id. at 16:21-23.

Trooper Guill told the jury that, following the questioning in the patrol car, he obtained Mr. Thropay’s oral and written consent to search the vehicle. Id. at 18:23-19:3. As noted above, Trooper Guill testified under oath at trial that it was only at this point that he requested the K-9 unit, although the videotape clearly shows Trooper Guill’s testimony to be perjurious. Id. at 23:17-20. Likewise, Trooper Guill was adamant when he told the jury at trial that he “did not search the vehicle or get into the vehicle before the dog arrived. Id. at 52:1-2. It was after.” The fact that the videotape shows Trooper Guill searching and entering the vehicle approximately one-half hour before the arrival of the K-9 unit, clearly indicates that this testimony is also false.

III. DISCUSSION

A. Ineffective Assistance of Counsel
There can be no question that the failure to pursue a suppression motion based upon an unconstitutional search of a vehicle following a roadside stop that yields incriminating evidence constitutes ineffective assistance of counsel. Indeed, the United States Court of Appeals for the Sixth Circuit addressed this very question in Joshua v. Dewitt, 341 F.3d 430 (6th Cir. 2003). In Joshua, an Ohio State Trooper, following a traffic stop of Joshua’s vehicle for speeding, learned that Joshua was “a known drug courier.” Id. at 434-435. In addition, the trooper claimed that Joshua was “nervous and restless” and that, when he questioned Joshua about his travel plans, the route “‘didn’t make any sense what so ever.” Id. at 435. There was also a discrepancy in the rental car papers for the car Joshua was driving. Id. at 443. Consequently, the trooper detained Joshua until he could arrange for a K-9 search for Joshua’s car. Id. at 435. The K-9 search ultimately discovered a large quantity of crack cocaine. Id.

The Sixth Circuit in Joshua held that, despite a state court ruling to the contrary and the deference it was required to give the state court findings under the Antiterrorism and Effective Death Penalty Act of 1966, Joshua’s counsel was ineffective for failing to challenge the basis for his continued detention pending the K-9 search of his vehicle. In reaching this holding, it concluded that the discrepancy in the rental car papers, Joshua’s alleged nervousness, and the trooper’s knowledge of Joshua’s criminal history did not support Joshua’s continued detention until the arrival of a K-9 unit. Id. at 443-452. Similarly, the Court found that taking route that “made no sense to the trooper” was “not a fact suggestive of illegal conduct.” Id. at 445.

Coincidentally, the “odd” factors alleged in Joshua are remarkably similar to the “odd” factors recounted by Trooper Guill in the instant case. One of the only distinguishing factors is that Joshua, unlike Mr. Thropay, was apparently not asked to consent to the ultimate search of his vehicle. But, as explained below, given the facts of the instant case this distinction is without Fourth Amendment relevance.

B. Mr. Thropay’s Consent to Search was not Valid and No Reasonable Suspicion Existed to Otherwise Search His Vehicle.

1. Principles of Law

There are two well established principles of law that should guide this Court’s determination as to whether Mr. Thropay would have had a valid motion to suppress.

First, when a person is stopped for a traffic violation “[a] seizure that is justified solely by the interest in issuing a...ticket to the diver can become unlawful if it is prolonged beyond the time reasonably required to complete the mission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). Indeed, cases from this circuit as well as other circuits establish that a traffic stop may not last any longer than is necessary to complete the investigative purposes of the traffic stop unless, while that investigation is being completed, the state can show that the investigating officer developed “reasonable suspicion” to detain the person for some other reason. See, e,g., United States v. Jones, 269 F.3d 919, 925 (8th Cir. 2001) (“After Trooper DeWitt had completed this initial investigation and determined that Jones was neither tired nor intoxicated, that his license and registration were valid, and that there were no outstanding warrants for his arrest, then the legitimate investigative purposes of the traffic stop were completed.”).

Second, once a court determines that a traffic stop should have concluded under the principle outlined above, a person’s consent to the search of his vehicle cannot be considered voluntary when the investigating officer does not return the person’s license prior to obtaining the consent. See United States v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999), citing, United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995). Indeed, as noted by the United States Court of Appeals for the Tenth Circuit in Lambert what began as a consensual encounter quickly became an investigative detention once the agents received Mr. Lambert's driver's license and did not return it to him. Id.

The above principles of law are perhaps best explained in United States v. Santiago, 310 F.3d 336, 341-42 (5th Cir. 2000):
During a traffic stop, an officer can request a driver's license, insurance papers, and vehicle registration; he or she may also run a computer check and issue a citation. The officer may detain and question the subjects of a traffic stop during the time a computer check is being conducted.....

However, a Fourth Amendment violation occurs when the detention extends beyond the valid reason for the stop. Once a computer check is completed and the officer either issues a citation or determines that no citation should be issued, the detention should end and the driver should be free to leave. In order to continue a detention after such a point, the officer must have a reasonable suspicion supported by articulable facts that a crime has been or is being committed. (citations omitted)

2. Precedent

There are also several cases on point, in addition to the Joshua case discussed above, that should guide this Court’s determination as to whether Mr. Thropay would have had a valid motion to suppress.

a. United States v. Jones, 234 F.3d 234 (5th Cir. 1999)

Jones is almost directly on point. In that case, the driver, Daniel, was stopped for speeding. Jones, 234 F.3d at 237. The officers that stopped Daniel asked him and his passenger, Jones, a series of questions. Id. The officers took Daniel and Jones back to the patrol car and “initiated a conversation with Daniel concerning the issuance of the warning ticket” and requested a records check while asking more probing questions of Daniel and Jones Id. at 237-38. Three minutes after the records check was completed, the officers asked Daniel if he would consent to the search of the vehicle and he did consent. Id. at 238. Just like the instant case, at the time the officers in Jones requested permission to search, they had retained Daniel’s license and warning citation. Id. Ultimately, drugs were discovered. Id.

The Fifth Circuit first held that Daniel’s consent to search was the fruit of an unlawful detention because it occurred after the speeding investigation should have been completed and while the officers retained his license and the ticket:
At least three minutes transpired from the response by the dispatcher to the time that Russell asked for consent to search the car. Except for obtaining Daniel's signature, Russell had completed the warning citation. But instead of obtaining Daniel's signature and returning his driver's license and rental agreement, Russell chose the more dilatory tactic of exiting the car, returning Jones's identification papers before doing the same for Daniel, and, most importantly, repeating to Jones the same questions that were asked of him before. After the computer checks were finished, any delay that occurred with respect to the warning citation being meted out was due to the officers' action or inaction. The basis for the stop was essentially completed when the dispatcher notified the officers about the defendants' clean records, three minutes before the officers sought consent to search the vehicle. Accordingly, the officers should have ended the detention and allowed the defendants to leave. And the failure to release the defendants violated the Fourth Amendment. The district court erred by not so holding.Id. at 241.

The Fifth Circuit then considered whether, regardless of consent, the officers had “reasonable suspicion” to search the car based upon the fact that both Daniel and Jones gave inconsistent answers to questions and that Daniel had a prior arrest on crack cocaine charges. It held that these reasons did not constitute “reasonable suspicion” to independently support the search in that case.” Id. at 248-49.

b. United States v. Dortch, 199 F.3d 193 (5th Cir. 1999)

In Dortch, the defendant was legitimately stopped for a traffic violation. Dortch, 199 F.3d at 195. Like the instant case, following the stop, the officer noted that the car was not registered to either the driver, Dortch, or the passenger. Id. at 195. Like the instant case, the driver and the passenger gave conflicting answers to where they had been. Id. at 196. Like the instant case, the officer who stopped the car did not see any luggage . Id. Like is the instant case, the officer claimed Dortch was “nervous.” Unlike the instant case, the passenger and driver also gave conflicting answers as to how they came into possession of the car. Id. While the officer was running a records check, he obtained Dortch’s permission to search the trunk but not the vehicle. Id. The officer then informed Dortch that, although he was free to go, his car would be detained pending a K-9 search. Id. Ultimately, the K-9 alerted to drugs on Dortch’s person, rather than in his vehicle, and Dortch consented to a pat down of his body where drugs were located. Id.

Dortch appealed the denial of his suppression motion. The Fifth Circuit first noted correctly that Dortch could not successfully claim that any detention pending the computer check on his license was impermissible. Id. at 198. Nevertheless, the Court next noted that, once the records check was completed, the continued detention of Dortch had to be supported by reasonable suspicion. Id. at 199. It then held that, “the confusion as to the relationship of Dortch to the proper renter of the vehicle, combined with Dortch's absence as an authorized driver on the rental agreement and the allegedly inconsistent answer about the stay in Houston, gave rise only to a reasonable suspicion that the car might have been stolen” and not that the driver was involved with drug activity to justify detention pending the arrival of the K-9. Id. Likewise, it held that Dortch’s alleged “nervousness” also did not justify continued detention after the traffic stop investigation should have concluded.

For purposes of applying Dortch to the instant case, it is significant that the government argued that Dortch consented to the search of his body. Nevertheless, the Fifth Circuit held that Dortch had not been free to go at the time he gave consent because the officer had retained his license and rental papers at the time consent was obtained and, consequently, Dortch’s consent was fruit of the illegal detention that took place following the time he should have been released when the records check was completed. Id. at 202.

c. United States v. Santiago, 310 F.3d 336 (5th Cir. 2002)

The Fifth Circuit, in Santiago, again addressed the issues that confront this Court in the instant case. There, a Louisiana State Trooper conducted a traffic stop of Santiago and his vehicle because of a flashing light emanating from the vehicle. Id. at 337-38. Upon approaching the vehicle, the trooper noted that the light was from a crystal ball hanging from the car’s rear view mirror and concluded that this was illegal under Louisiana law. Id. The trooper proceeded to ask Santiago and his passenger numerous questions. Id. After some time, the trooper ran a check on Santiago’s license. He then proceeded to ask Santiago additional questions once the records check was complete and obtained Santiago’s consent to search the vehicle after asking these additional questions. Id. at 339.

The Fifth Circuit, like it did in Jones and Dortch, concluded that, once the records check was complete, the stop should have been concluded. Id. at 342 (“Trooper Raley's original justification for the stop ended, however, at the time the computer check was completed. At that point, there was no reasonable or articulable suspicion that Santiago was trafficking in drugs, but Raley nonetheless continued his interrogation after the original justification for the stop had ended.”). It then held that, because the consent to search occurred during the illegal detention, it did not support the resulting search. Id. at 343 (“[U]nder the circumstances of this case, the consent to search was not an independent act of free will, but rather a product of the unlawfully extended detention.”).

d. United States v. Perkins, 348 F.3d 965 (11th Cir. 2003)

Here, an Alabama patrolman stopped Perkins for a traffic violation. Perkins, 348 F.3d at 967. After the patrolman completed a driver’s license check and issued a warning ticket and “he was finished with that portion of his investigation relating to the traffic stop,” the patrolman “continued to detain Perkins because of his nervousness; what he perceived as Perkins' evasive behavior in response to his questions; and his hunch that Perkins was being untruthful about his destination.” Id. at 968. Like Trooper Guill in this case, the patrolman then pursued his hunches with further questioning. Ultimately, the patrolman in Perkins asked for permission to search the car and Perkins refused. Id. The patrolman then requested a K-9 search that resulted in the seizure of drugs. Id. The United States Court of Appeals for the Eleventh Circuit held the search unconstitutional.

The Perkins Court first concluded that “the circumstances here do not give rise to the requisite reasonable suspicion justifying continued detention of Perkins and [his passenger] after the warning ticket had been issued.” Id. at 970. The government then argued that the following circumstances created “reasonable suspicion” to extend the stop beyond the time necessary to conclude the traffic violation:
(1) Perkins' nervousness; (2) the "odd behavior" of Perkins in repeating the questions [the patrolman] asked him; (3) Perkins' possession of a Florida driver's license while claiming to live in Montgomery, Alabama; and (4) the "inconsistent" statements from Perkins and [his passenger] with regard to whom they were going to see in Greenville, Alabama.Id.

The Eleventh Circuit quickly rejected this argument. Id. (“We find that these circumstances, separately or cumulatively, cannot support a legitimate inference of further illegal activity that rises to the level of objective, reasonable suspicion required under the Fourth Amendment.”)

e. United States v. Beck, 140 F.3d 1129 (8th Cir. 1998)

In Beck, the United States Court of Appeals for the Eight Circuit confronted a traffic stop of the defendant by an Arkansas patrolman. United States v. Beck, 140F.3d 1129, 1332 (8th Cir. 1998). After speaking to Beck, the officer returned to his patrol car to run a records check. Id. Following the completion of the check, he returned Beck’s license and rental car agreement and asked permission to search the vehicle. Id. Beck nervously declined to give consent. Id. The patrolman then called for a K-9 unit and the dog, once it arrived, alerted on Beck’s car. Id. at 1332-33.

The Eight Circuit first noted “[u]nless Officer Taylor had a reasonably articulable suspicion for believing that criminal activity was afoot, continued detention of Beck became unreasonable after he had finished processing Beck's traffic violation.” Id. at 1134. Nevertheless, it also noted (as distinguished from this case), that the initial questioning of Beck after the patrolman returned to the vehicle was “consensual” but only because “Officer Taylor had already returned Beck’s driver’s license and rental agreement” at this juncture and, therefore, Beck was free to go at the time he gave his consent. Id. at 1135. It then went on to hold that, although the encounter was consensual because Beck’s paperwork was returned, it became non-consensual when Beck was informed that, if he refused to consent to a search, a K-9 unit would be called. Id.

Because the search took place after the detention of Beck became non-consensual, the Eight Circuit examined the facts to see if there was independent “reasonable suspicion” to justify the non-consensual detention. Id. at 1136-40. Some of these factors match the “odd” factors allegedly present in this case, but there were many additional factors that might have supported a “reasonable suspicion” determination in Beck that was not present in the instant case:
Here, the government contends that reasonable suspicion for Beck's renewed detention arose from the following seven circumstances: (1) Beck was driving a rental car which had been rented by an absent third party; (2) the Buick was licensed in California; (3) there was fast food trash on the passenger side floorboard; (4) no visible luggage in the passenger compartment of the automobile; (5) Beck's nervous demeanor; (6) Beck's trip from a drug source state to a drug demand state; and (7) Officer Taylor's disbelief of Beck's explanation for the trip. Id. at 1137.

Still the Eight Circuit found that these facts did notconstitute independent “reasonable suspicion” for the search Beck’s vehicle. Id. at 1137-40.

Some of the Court’s observations regarding the factors alleged to support “reasonable suspicion” in Beck are applicable to the “odd” facts identified in the instant case. First, it held that the fact that the rental car was in some other person’s name was not “inherently suspicious.” Id. at 1137. Second, it observed that it had previously noted that “out-of-state plates are consistent with innocent behavior and not probative of reasonable suspicion.” Id. Third, it dismissed the “no luggage in the passenger compartment” factor out-of-hand. Id. at 1139 (“[W]e think that this circumstance fails to generate any suspicion of criminal activity. Indeed, motorists are specifically advised by law enforcement agencies, as a crime prevention tip, not to leave their luggage in view.”). Finally, it was equally dismissive of the officer’s subjective assessment of Beck’s nervousness. Id. (“It certainly cannot be deemed unusual for a motorist to exhibit signs of nervousness when confronted by a law enforcement officer.”).

f. United States v. Jones, 269 F.3d 919 (8th Cir. 2001)
A Missouri trooper stopped Jones for moving violations that might have been caused by intoxication. Jones, 269 F.3d at 922. While conducting a records check on Jones, the trooper engaged him in conversation. Id. The trooper then returned Jones’ paperwork and issued him a warning citation. Id. at 923. He then asked permission to search Jones’ vehicle and Jones declined. Id. The trooper then called a K-9 unit and the drug dog alerted to drugs. Id. at 923-924.

The Eight Circuit first noted that a seizure had taken place once Jones refused permission to search his vehicle. Id. at 926. It then reviewed whether there was independent “reasonable suspicion” to support the seizure. Id. at 926-2. The government relied upon the following alleged factors: “ Jones slowed while being passed, his camper wheels crossed traffic lines, he gave an inconsistent answer regarding his prior arrest record, and he acted nervously upon being detained and questioned inside Trooper DeWitt's patrol car.” The Court held that the factors did not constitute “reasonable suspicion” to justify the seizure. Id. at 929 (“Trooper DeWitt's detention of Jones past the point necessary to complete his traffic stop investigation exceeded the scope of a lawfully initiated traffic stop. The extended investigative detention was unsupported by a reasonable, articulable suspicion that criminal activity was afoot and therefore violated Jones's Fourth Amendment right to be free from unreasonable seizure.”).

3. Instant Case

Applying the foregoing legal principles as well as the precedent discussed above, there can be no doubt whatsoever that Mr. Thropay had been “seized” at the time the K-9 unit was called to his vehicle. Mr. Thropay does not complain of the initial stop nor does he complain of the initial questioning prior to the records check being run. Nevertheless, once Trooper Guill processed the traffic violation and completed the records check, he should have issued Mr. Thropay his citation, returned his license and allowed him to proceed. When Trooper Guill did not allow Mr. Thropay to proceed after processing the traffic violation, an illegal seizure had occurred.

Next, despite Mr. Thropay’s consent to the search of his vehicle, such consent was not valid in that it was fruit of the illegal seizure. As noted consistently by the Fifth Circuit, in Dortch, Jones, and Santiago, the fact that the detention continued past the time it should have been concluded makes any consent obtained during such a period illegal. Likewise, it is significant that, at the time consent was obtained in this case, Trooper Guill had not returned Mr. Thropay’s license. Compare, Beck, 140 F.3d at 1135 (Consensual because license was returned).

Therefore, the only real question is whether there was independent “reasonable suspicion” to detain Mr. Thropay for almost an hour in order to conduct a K-9 search of his vehicle. At trial, the trooper identified the following factors: (1) the vehicle was registered in Texas when both Mr. Thropay and Ms. Laprade had California identification; (2) there was no luggage present in the vehicle; (3) the “driver appeared to be a little nervous” and “[t]he passenger avoided eye contact” with him. Moreover, giving the government the benefit of the doubt, Trooper Guill learned of a fourth factor- that Mr. Thropay had a conviction for marijuana sale- after conducting the records check but prior to calling for a drug dog and prior to returning Mr. Thropay’s vehicle where he could have concluded the traffic stop.

Of course, factors 2 and 3 were dismissed out of hand by the Eight Circuit in Beck. As to the factor 1, given that Mr. Thropay was now living in Texas it would not be unusual for him to have bought a car in Texas. The simple fact that he did not change his driver’s license does not indicate criminal behavior. See Perkins, 348 F.3d at 971 (“[T]here are many reasons one may have failed to change the license including lack of time because of a recent move, cost, inconvenience, carelessness, or simple laziness.”). Finally, a driver’s criminal history has been held not to be sufficient to create “reasonable suspicion.” As noted by the United States Court of Appeals for the Tenth Circuit when analyzing “reasonable suspicion” factors to justify a traffic stop:

We have previously cautioned that prior criminal involvement alone is insufficient to give rise to the necessary reasonable suspicion to justify shifting the focus of an investigative detention from a traffic stop to a narcotics or weapons investigation. "If the law were otherwise, any person with any sort of criminal record...could be subjected to a Terry-type investigative stop by a law enforcement officer at any time without the need for any other justification at all." Given the near-complete absence of other factors which reasonably gave rise to suspicion, the fact that Mr. Wood had previously been convicted of narcotics violations adds little to the calculus. United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997). See also Jones, 234 F.3d at 248-49.


IV. CONCLUSION

As set forth above, there was no basis to detain Mr. Thropay between what should have been the end of the traffic investigation at 11:24 and the alert of K-9 Freon at 12:09. Consequently, Mr. Thropay had a meritorious suppression motion, supported by precedent, that would have resulted in the suppression of the drugs that were ultimately seized from his vehicle. Moreover, such a motion would have been case dispositive.

Respectfully submitted,




F. Clinton Broden
Tx. Bar 24001495
Broden & Mickelsen
2707 Hibernia St.
Dallas, Texas 75204
214-720-9552
214-720-9594 (facsimile)
CERTIFICATE OF SERVICE

I certify that on July 20, 2006, I caused the foregoing document to be served by electronic means, on:
Gary Hayward, Esq.
United States Attorney’s Office
110 East Court Avenue
Des Moins, Iowa 50309


F. Clinton Broden



David Finn

Texas Law re: Occupational Drivers License

SUBCHAPTER L. OCCUPATIONAL LICENSE



§ 521.241. DEFINITIONS. In this subchapter:
(1) "Essential need" means a need of a person for the
operation of a motor vehicle:
(A) in the performance of an occupation or trade
or for transportation to and from the place at which the person
practices the person's occupation or trade;
(B) for transportation to and from an educational
facility in which the person is enrolled; or
(C) in the performance of essential household
duties.
(2) "Ignition interlock device" means a device that
uses a deep-lung breath analysis mechanism to make impractical the
operation of a motor vehicle if ethyl alcohol is detected in the
breath of the operator of the vehicle.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.


§ 521.242. PETITION. (a) A person whose license has
been suspended for a cause other than a physical or mental
disability or impairment or a conviction under Section 49.04, Penal
Code, may apply for an occupational license by filing a verified
petition with the clerk of the county court or district court with
jurisdiction in the county in which:
(1) the person resides; or
(2) the offense occurred for which the license was
suspended.
(b) A person may apply for an occupational license by filing
a verified petition only with the clerk of the county court or
district court in which the person was convicted if:
(1) the person's license has been automatically
suspended or canceled under this chapter for a conviction of an
offense under the laws of this state; and
(2) the person has not been issued, in the 10 years
preceding the date of the filing of the petition, more than one
occupational license after a conviction under the laws of this
state.
(c) A petition filed under this section must set forth in
detail the person's essential need.
(d) A petition filed under Subsection (b) must state that
the petitioner was convicted in that court for an offense under the
laws of this state.
(e) The clerk of the court shall file the petition as in any
other civil matter.
(f) A court may not grant an occupational license for the
operation of a commercial motor vehicle to which Chapter 522
applies.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 165, § 30.83(a), eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1289, § 1, 2, eff. Sept. 1, 1997; Acts
2001, 77th Leg., ch. 941, § 1, eff. Sept. 1, 2001.


§ 521.243. NOTICE TO STATE; PRESENTATION OF EVIDENCE.
(a) The clerk of the court shall send by certified mail to the
attorney representing the state a copy of the petition and notice of
the hearing if the petitioner's license was suspended following a
conviction for:
(1) an offense under Section 19.05, 49.04, 49.07, or
49.08, Penal Code; or
(2) an offense to which Section 521.342 applies.
(b) A person who receives a copy of a petition under
Subsection (a) may attend the hearing and may present evidence at
the hearing against granting the petition.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.


§ 521.244. HEARING; ORDER; DETERMINATION OF ESSENTIAL
NEED. (a) The judge who hears the petition shall sign an order
finding whether an essential need exists.
(b) In determining whether an essential need exists, the
judge shall consider:
(1) the petitioner's driving record; and
(2) any evidence presented by a person under Section
521.243(b).
(c) If the judge finds that there is an essential need, the
judge also, as part of the order, shall:
(1) determine the actual need of the petitioner to
operate a motor vehicle; and
(2) require the petitioner to provide evidence of
financial responsibility in accordance with Chapter 601.
(d) Except as provided by Section 521.243(b), the hearing on
the petition may be ex parte.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.


§ 521.245. REQUIRED COUNSELING. (a) If the
petitioner's license has been suspended under Chapter 524 or 724,
the court shall require the petitioner to attend a program approved
by the court that is designed to provide counseling and
rehabilitation services to persons for alcohol dependence. This
requirement shall be stated in the order granting the occupational
license.
(b) The program required under Subsection (a) may not be the
program provided by Section 521.344 or by Section 13, Article
42.12, Code of Criminal Procedure.
(c) The court may require the person to report periodically
to the court to verify that the person is attending the required
program.
(d) On finding that the person is not attending the program
as required, the court may revoke the order granting the
occupational license. The court shall send a certified copy of the
order revoking the license to the department.
(e) On receipt of the copy under Subsection (d), the
department shall suspend the person's occupational license for:
(1) 60 days, if the original driver's license
suspension was under Chapter 524; or
(2) 120 days, if the original driver's license
suspension was under Chapter 724.
(f) A suspension under Subsection (e):
(1) takes effect on the date on which the court signs
the order revoking the occupational license; and
(2) is cumulative of the original suspension.
(g) A person is not eligible for an occupational license
during a period of suspension under Subsection (e).

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.


§ 521.246. IGNITION INTERLOCK DEVICE REQUIREMENT.
(a) If the person's license has been suspended after a conviction
under Section 49.04, 49.07, or 49.08, Penal Code, the judge, before
signing an order, shall determine from the criminal history record
information maintained by the department whether the person has any
previous conviction under those laws.
(b) As part of the order the judge may restrict the person to
the operation of a motor vehicle equipped with an ignition
interlock device if the judge determines that the person's license
has been suspended following a conviction under Section 49.04,
49.07, or 49.08, Penal Code. As part of the order, the judge shall
restrict the person to the operation of a motor vehicle equipped
with an ignition interlock device if the judge determines that:
(1) the person has two or more convictions under any
combination of Section 49.04, 49.07, or 49.08, Penal Code; or
(2) the person's license has been suspended after a
conviction under Section 49.04, Penal Code, for which the person
has been punished under Section 49.09, Penal Code.
(c) The person shall obtain the ignition interlock device at
the person's own expense unless the court finds that to do so is not
in the best interest of justice and enters that finding in the
record. If the court determines that the person is unable to pay
for the device, the court may impose a reasonable payment schedule
for a term not to exceed twice the period of the court's order.
(d) The court shall order the ignition interlock device to
remain installed for at least half of the period of supervision.
(e) A person to whom this section applies may operate a
motor vehicle without the installation of an approved ignition
interlock device if:
(1) the person is required to operate a motor vehicle
in the course and scope of the person's employment;
(2) the vehicle is owned by the person's employer;
(3) the employer is not owned or controlled by the
person whose driving privilege is restricted;
(4) the employer is notified of the driving privilege
restriction; and
(5) proof of that notification is with the vehicle.
(f) A previous conviction may not be used for purposes of
restricting a person to the operation of a motor vehicle equipped
with an interlock ignition device under this section if:
(1) the previous conviction was a final conviction
under Section 49.04, 49.07, or 49.08, Penal Code, and was for an
offense committed more than 10 years before the instant offense for
which the person was convicted; and
(2) the person has not been convicted of an offense
under Section 49.04, 49.07, or 49.08 of that code committed within
10 years before the date on which the instant offense for which the
person was convicted.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 165, § 30.84(a), eff. Sept. 1, 1997;
Acts 1999, 76th Leg., ch. 1105, § 1, eff. Sept. 1, 1999.


§ 521.2465. RESTRICTED LICENSE. (a) On receipt of
notice that a person has been restricted to the use of a motor
vehicle equipped with an ignition interlock device, the department
shall notify that person that the person's driver's license expires
on the 30th day after the date of the notice. On application by the
person and payment of a fee of $10, the department shall issue a
special restricted license that authorizes the person to operate
only a motor vehicle equipped with an ignition interlock device.
(b) On receipt of a copy of a court order removing the
restriction, the department shall issue the person a driver's
license without the restriction.

Added by Acts 1997, 75th Leg., ch. 165, § 30.85(a), eff. Sept. 1,
1997.


§ 521.247. APPROVAL OF IGNITION INTERLOCK DEVICES BY
DEPARTMENT. (a) The department shall adopt rules for the approval
of ignition interlock devices used under this subchapter.
(b) The department by rule shall establish general
standards for the calibration and maintenance of the devices. The
manufacturer or an authorized representative of the manufacturer is
responsible for calibrating and maintaining the device.
(c) If the department approves a device, the department
shall notify the manufacturer of that approval in writing. Written
notice from the department to a manufacturer is admissible in a
civil or criminal proceeding in this state. The manufacturer shall
reimburse the department for any cost incurred by the department in
approving the device.
(d) The department is not liable in a civil or criminal
proceeding that arises from the use of an approved device.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 165, § 30.84(b), eff. Sept. 1, 1997.


§ 521.2475. IGNITION INTERLOCK DEVICE EVALUATION.
(a) On January 1 of each year, the department shall issue an
evaluation of each ignition interlock device approved under Section
521.247 using guidelines established by the National Highway
Traffic Safety Administration, including:
(1) whether the device provides accurate detection of
alveolar air;
(2) the moving retest abilities of the device;
(3) the use of tamper-proof blood alcohol content
level software by the device;
(4) the anticircumvention design of the device;
(5) the recalibration requirements of the device; and
(6) the breath action required by the operator.
(b) The department shall assess the cost of preparing the
evaluation equally against each manufacturer of an approved device.

Added by Acts 1997, 75th Leg., ch. 165, § 30.86(a), eff. Sept. 1,
1997.


§ 521.2476. MINIMUM STANDARDS FOR VENDORS OF IGNITION
INTERLOCK DEVICES. (a) The department by rule shall establish:
(1) minimum standards for vendors of ignition
interlock devices who conduct business in this state; and
(2) procedures to ensure compliance with those
standards, including procedures for the inspection of a vendor's
facilities.
(b) The minimum standards shall require each vendor to:
(1) be authorized by the department to do business in
this state;
(2) install a device only if the device is approved
under Section 521.247;
(3) obtain liability insurance providing coverage for
damages arising out of the operation or use of devices in amounts
and under the terms specified by the department;
(4) install the device and activate any
anticircumvention feature of the device within a reasonable time
after the vendor receives notice that installation is ordered by a
court;
(5) install and inspect the device in accordance with
any applicable court order;
(6) repair or replace a device not later than 48 hours
after receiving notice of a complaint regarding the operation of
the device;
(7) submit a written report of any violation of a court
order to that court and to the person's supervising officer, if any,
not later than 48 hours after the vendor discovers the violation;
(8) maintain a record of each action taken by the
vendor with respect to each device installed by the vendor,
including each action taken as a result of an attempt to circumvent
the device, until at least the fifth anniversary after the date of
installation;
(9) make a copy of the record available for inspection
by or send a copy of the record to any court, supervising officer,
or the department on request; and
(10) annually provide to the department a written
report of each service and ignition interlock device feature made
available by the vendor.
(c) The department may revoke the department's
authorization for a vendor to do business in this state if the
vendor or an officer or employee of the vendor violates:
(1) any law of this state that applies to the vendor;
or
(2) any rule adopted by the department under this
section or another law that applies to the vendor.
(d) A vendor shall reimburse the department for the
reasonable cost of conducting each inspection of the vendor's
facilities under this section.
(e) In this section, "offense relating to the operating of a
motor vehicle while intoxicated" has the meaning assigned by
Section 49.09, Penal Code.

Added by Acts 1999, 76th Leg., ch. 1105, § 2, eff. Sept. 1, 1999.


§ 521.248. ORDER REQUIREMENTS. (a) An order granting
an occupational license must specify:
(1) the hours of the day and days of the week during
which the person may operate a motor vehicle;
(2) the reasons for which the person may operate a
motor vehicle; and
(3) areas or routes of travel permitted.
(b) The person may not operate a motor vehicle for more than
four hours in any 24-hour period, except that on a showing of
necessity the court may allow the person to drive for any period
determined by the court that does not exceed 12 hours in any 24-hour
period.
(c) An order granting an occupational license remains valid
until the end of the period of suspension of the person's regular
driver's license.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.


§ 521.249. NOTICE TO DEPARTMENT; ISSUANCE OF
OCCUPATIONAL LICENSE. (a) The court shall send a certified copy
of the petition and the court order setting out the judge's findings
and restrictions to the department. The person may use a copy of
the order as a restricted license until the 31st day after the date
on which the order takes effect.
(b) On receipt of the copy under this section and after
compliance with Chapter 601, the department shall issue an
occupational license to the person. The license must refer on its
face to the court order.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.


§ 521.250. COURT ORDER IN OPERATOR'S POSSESSION. A
person who is issued an occupational license shall have in the
person's possession a certified copy of the court order granting
the license while operating a motor vehicle. The person shall allow
a peace officer to examine the order on request.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.


§ 521.251. EFFECTIVE DATE OF OCCUPATIONAL LICENSE.
(a) If a person's license is suspended under Chapter 524 or 724 and
the person has not had a prior suspension arising from an
alcohol-related or drug-related enforcement contact in the five
years preceding the date of the person's arrest, an order under this
subchapter granting the person an occupational license takes effect
immediately. However, the court shall order the person to comply
with the counseling and rehabilitation program required under
Section 521.245.
(b) If the person's driver's license has been suspended as a
result of an alcohol-related or drug-related enforcement contact
during the five years preceding the date of the person's arrest, the
order may not take effect before the 91st day after the effective
date of the suspension.
(c) If the person's driver's license has been suspended as a
result of a conviction under Section 49.04, 49.07, or 49.08, Penal
Code, during the five years preceding the date of the person's
arrest, the order may not take effect before the 181st day after the
effective date of the suspension.
(d) Notwithstanding any other provision in this section, if
the person's driver's license has been suspended as a result of a
second or subsequent conviction under Section 49.04, 49.07, or
49.08, Penal Code, committed within five years of the date on which
the most recent preceding offense was committed, an order granting
the person an occupational license may not take effect before the
first anniversary of the effective date of the suspension.
(e) For the purposes of this section, "alcohol-related or
drug-related enforcement contact" has the meaning assigned by
Section 524.001.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 2001, 77th Leg., ch. 969, § 5, eff. Sept. 1, 2001.


§ 521.252. LICENSE REVOCATION. (a) The court that
signs an order granting an occupational license may issue at any
time an order revoking the license for good cause.
(b) The court shall send a certified copy of the order to the
department.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.


§ 521.253. CRIMINAL PENALTY. (a) A person who holds an
occupational license commits an offense if the person:
(1) operates a motor vehicle in violation of a
restriction imposed on the license; or
(2) fails to have in the person's possession a
certified copy of the court order as required under Section
521.250.
(b) An offense under this section is a Class B misdemeanor.
(c) On conviction of an offense under this section, the
occupational license and the order granting that license are
revoked.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

Judge Finn