UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA )

)

v. ) 2:13-cr-00146

)

LUIS PECINA )

OPINION AND ORDER

Luis Pecina is charged with possessing methamphetamine with the intent to

distribute it. He seeks suppression of the drugs seized from his car in a traffic stop as

well as statements he subsequently made to the police. Pecina was a passenger in the

car when it was stopped by Hammond Police Officer Dan Young. Pecina exited the car

and very briefly tried to elude Officer Young, which prompted Pecina’s detention. 

After placing Pecina in his police car, Officer Young talked to the driver of the stopped

car, Jenny Valenzuela. Officer Young testified that he smelled the odor of marijuana

coming from the car, so he searched it, finding a mostly-consumed marijuana cigar and

a large quantity of crystal methamphetamine. Pecina has moved to suppress these items

and the statements he made to the police after his arrest.

Whether Officer Young smelled the odor of marijuana coming from the car is the

fulcrum of my decision: if he did, the search of the car was legal. Based on the evidence

presented during the hearing and in the parties’ initial and supplemental briefing, I find

that Officer Young effected a legal traffic stop, he lawfully detained Pecina, he smelled
marijuana, and he lawfully searched the car. For those reasons, neither the physical

evidence found in the car nor Pecina’s statements will be suppressed.

FACTUAL BACKGROUND

Early on the morning of November 14, 2013 defendant Luis Pecina picked up

Jenny Valenzuela, with whom he has a child, in a black Dodge Charger. Valenzuela

took the wheel, and they went looking for a hotel room. (Tr. Vol. 11 at 9, 68-69, 75, 84,

117; Ex. A at 2-3; DE 21 at 1.) They first went to a Best Western in Hammond near I-94

but found it to be too expensive, so they drove to the Motel 6 next door. (Tr. Vol. 1 at 14-

15, 70.) Valenzuela testified that she knows she signaled the turn into the Motel 6

because she “frequently” uses her turn signals. (Tr. Vol. 1 at 70.) Valenzuela testified

that she and Pecina hadn’t smoked marijuana that day, and the car didn’t smell of

marijuana, although they did plan to smoke some at the hotel. (Tr. Vol. 1 at 70-71.)

Valenzuela also testified that they did not yet have any marijuana and she didn’t know

where they were going to get it. (Tr. Vol. 1 at 85.)

That same morning, Detective Sergeant Dan Young was in uniform and on patrol

in an unmarked police car (but that was equipped with lights and siren) conducting a

routine check of a string of hotels off the highway in south Hammond. (Ex. A at 2; Tr.

Vol. 1 at 9, 11, 19, 89-90.) Officer Young was familiar with the area as the site of previous

investigations related to narcotics, prostitution, counterfeiting, robbery, and potential

1

 Because the hearing occurred in three parts there are three separate transcripts.

These are cited as volumes 1, 2 and 3, numbered in chronological order. They are

entered in the docket as Docket Entries 46, 50 and 51, respectively.

2
human trafficking. (Tr. Vol. 1 at 10.) In the Best Western parking lot Officer Young saw

a black Dodge Charger with heavily tinted rear and rear passenger windows, so dark

that they appeared to violate state law because he couldn’t see inside to identify

occupants or see if they were wearing seatbelts. (Ex. A at 2; Tr. Vol. 1 at 12, 42-43; Tr.

Vol. 2 at 12-13.) The defense presented photographs of the Charger’s front windshield

and front side windows (Ex. C), and some of the contents of the car (Ex. D), but neither

side presented clear photos showing the car’s other windows. The still photos from the

surveillance video (Ex. J-O) aren’t of a quality to really show how tinted the rear three

windows are. Noticing that no one immediately left the vehicle when it parked, Officer

Young wanted to see if the occupants had identified his car as a police vehicle and had

parked only to avoid his attention. He left the parking lot and positioned himself one

block away, where he could see the only exit from the Best Western parking lot. (Ex. A

at 2; Tr. Vol. 1 at 13-14.) Less than five minutes later Officer Young saw the Charger

leave the Best Western parking lot, travel a short distance, and, after appearing to him

to notice the police vehicle, quickly turn into the Motel 6 parking lot without using a

turn signal.2

 (Ex. A at 2; Tr. Vol. 1 at 14-15.) He activated his police lights and turned

into the Motel 6 to make a traffic stop. (Ex. A at 2; Tr. Vol. 1 at 16.) 

At this point the two storylines collide. Once the Charger and the police car

pulled into the Motel 6 parking lot, three inconsistent versions of events developed:

2

 Officer Young later issued a written confirmation of the verbal warning to

Valenzuela for failure to signal a turn. (Ex. 7; Tr. Vol. 2 at 13-15.)

3
Officer Young’s, Valenzuela’s, and the Motel 6 surveillance video (Ex. G, Cam21 video

file— referred to as Ex. G, with the relevant time from the white time counter at the topcenter of the video). During the hearing and in briefing Pecina has attempted to pick

apart Officer Young’s police report (Ex. A) and testimony. While there are demonstrable

inaccuracies in certain details of Officer Young’s testimony about the traffic stop, I

found Officer Young to be a credible witness. The inaccuracies did not seem to be

deliberate, and I attribute them to adrenaline and the frailty inherent in human

memory. This is particularly true given that only about 18 seconds passed between the

shadow of the Charger appearing in the video to Pecina putting his hands up and

laying down on the ground at Officer Young’s command, with many more details

arising than seconds passing. The bottom line is that the bulk of Officer Young’s

testimony is corroborated by the surveillance video. 

The Charger parked in the Motel 6 lot, and the passenger door opened about

three seconds after the car stopped moving. (Ex. G at 7:40:5-7:40:8.) As Pecina emerged

from the front passenger door of the Charger, Officer Young pulled his police car up

behind the Charger. (Ex. G at 7:40:8.)

Officer Young testified that his car’s police lights were on when he pulled up and

stopped his car (Tr. Vol. 1 at 16), and a review of the video confirms this. (Ex. G at

7:40:9.) Valenzuela stated several times in her testimony that she was absolutely certain

the police lights weren’t on (Tr. Vol. 1 at 88-89), the final time confirming that she

wasn’t simply saying she didn’t remember:

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THE COURT: Let me clarify. Are you saying he did

not have his lights on?

A [VALENZUELA]:Yes.

THE COURT: Or are you simply saying you don’t

know?

A [VALENZUELA]:No, he didn’t have his lights on. Yeah.

(Tr. Vol. 1 at 88:25-89:4.) This is despite the fact that, when she was eventually ordered

out of the Charger, Valenzuela stood in front of Officer Young’s car with her hands on

the hood, facing the windshield and its lights, for almost three minutes, and the video

shows the police lights had been on continuously from the beginning of the stop. (Ex. G

at 7:45:49-7:48:43.)

Officer Young testified that, as he pulled up and stopped his car, he saw Pecina

get out of the passenger side of the Charger and begin to walk away. (Tr. Vol. 1 at 18-

19.) The video shows that Pecina got out and started to move towards the back of the

Charger (where the police car was), then it seems he saw the police vehicle, and he

stepped backwards away from it, then turned, moving towards the front of the Charger

and away from the police car. (Ex. G at 7:40:8-7:40:10; Ex. 8; Tr. Vol. 2 at 19.) Officer

Young testified that “from his behavior and my training, experience, I was expecting

him to take off running and that level of resistance.” (Tr. Vol. 1 at 20.) Officer Young

stated that, as a result, he got out of his car and at least three times ordered Pecina to

stop while he ran after Pecina, pulling out his gun as he ran. (Tr. Vol. 1 at 20-21.)

Valenzuela agreed that Officer Young got out of his car and ordered Pecina to stop. (Tr.

Vol. 1 at 89.)

5
Apparently before having seen the surveillance video, Officer Young testified

that he ran right next to the Charger and past Pecina’s still-open car door, detecting a

strong odor of marijuana coming from the Charger as he passed. (Tr. Vol. 1 at 19-21, 25.)

Officer Young stated during cross-examination that he was unsure of certain spatial

details of the traffic stop, like exactly which parking spot the Charger was in, or how

many parking spots Pecina traveled away from the Charger before stopping. (Tr. Vol. 1

at 38, 40, 41.) 

In fact, the video shows that Pecina closed his door, and that Officer Young ran

towards the passenger side of the Charger, then side-stepped and went around the car

to its right rather than directly by the Charger. (Ex. G at 7:40:10-7:40:14.) Pecina quickly

stopped moving away from the police car and put his hands up, standing in front of the

Charger, then lay down on the ground. (Tr. Vol. 1 at 21; Ex. G at 7:40:13-7:40:16.) As he

was being handcuffed Pecina spontaneously said “it’s me, it’s me.” (Tr. Vol. 1 at 22.)

Officer Young put Pecina in the back of the police car. (Tr. Vol. 1 at 25.) Once

Pecina was there Officer Young asked Pecina for his name, date of birth, and age. Pecina

provided what turned out to be a false name, and a date of birth that didn’t match the

age he gave. (Tr. Vol. 1 at 26-27.) Although the video can’t confirm the contents of the

conversation, it does confirm its brevity: Officer Young put Pecina in the police car and

stood at the car for less than a minute before walking to the Charger. (Ex. G at 7:42:12-

7:43:0.)

6
After talking to Pecina briefly, Officer Young moved to the Charger’s driver’s

door, where he talked to Valenzuela through the open door. (Ex. G at 7:43:8; Tr. Vol. 1 at

27.) Officer Young testified that, as he stood by the open door, he smelled burnt

marijuana. (Tr. Vol. 1 at 29-30.) Valenzuela gave Officer Young her Arizona driver’s

license, but didn’t have the car’s registration. She also gave Officer Young Pecina’s

Arizona driver’s license. (Tr. Vol. 1 at 28, 91.) Once Officer Young’s backup arrived,

Officer Young asked Valenzuela to get out of the Charger, and she stood with Officer

Maldonado with her hands on the hood of Officer Young’s car. (Ex. G at 7:45:49; Tr. Vol.

1 at 29.) 

As soon as Valenzuela was out of the Charger, the video shows Officer Young

squatting by the open driver’s door, apparently searching around the driver’s seat for a

little more than two minutes. (Ex. G at 7:45:42-7:48:2.) Officer Young then went back to

his car and seemed to confer with Officer Maldonado briefly, after which Officer

Maldonado took Valenzuela towards his own police car. (Ex. G at 7:48:42.)

Less than a minute later Officer Young returned to the Charger to search it, now

starting on the passenger’s side. (Ex. G at 7:49:21; Tr. Vol. 2 at 18; Ex. A at 3.) Officer

Young’s police report and testimony before watching the video omitted the initial

search of the driver’s side, indicating that the search began on the passenger’s side. (Ex.

A at 3; Tr. Vol. 1 at 30.) In the search Officer Young found a plastic grocery bag

containing a Swiss Miss Hot Chocolate box that held four bags of what Officer Young

believed was crystal methamphetamine. (Tr. Vol. 1 at 30; Ex. A at 4.) A later test

7
indicated that the substance was crystal methamphetamine. (Tr. Vol. 1 at 31; Ex. A at 5.)

In the driver’s side door panel of the Charger Officer Young found a cigar that looked

like it had been mostly smoked. It smelled of burnt marijuana and contained what

appeared to Officer Young to be raw marijuana. (Tr. Vol. 1 a 31; Ex. A at 4.) The

substance in the cigar later tested positive for marijuana. (Tr. Vol. 1 a 31; Ex. A at 5.)

Officer Young testified that the burnt cigar was not in any package when he collected it,

but that he found a cigar package in the door panel that seemed to belong to the cigar,

and he put the burnt remains of the cigar in the wrapping. (Tr. Vol. 1 at 32, 61; Tr. Vol. 2

at 23, 38-39.) Valenzuela testified that all she had seen in the car was a new, unopened

cigar wrapping in the door compartment, and that she hadn’t seen an unwrapped or

burnt cigar. (Tr. Vol. 1 at 86.)

 Pecina argues that the cigar was not loose in the door panel, but already in the

wrapping with the odor smothered, because no experienced officer would so mishandle

evidence by putting a burnt cigar in a cigar wrapping found in the same door panel.

(DE 53 at 4-6.) Officer Young testified that he is not an evidence technician, and he

routinely collects evidence without using official evidence bags. (Tr. Vol. 1 at 61-62; Tr.

Vol. 2 at 21-23.) Agent Robert Leary, Drug Enforcement Agency Task Force Officer at

the Hammond Police Department, testified that it is accepted practice in the Hammond

Police Department to secure evidence in any way it can be safely taken to the police

station without destroying it, where it is then sealed in evidence bags. (Tr. Vol 2 at 40.)

So as to secure it, it seems reasonable that an officer would put a used cigar into the

8
empty, resealable cigar packaging found with it, especially when both items are

evidence. Pecina didn’t suggest any source of actual contamination of evidence, and I

don’t see one.

After the Charger was searched, Pecina and Valenzuela were separately taken to

the police station. (Tr. Vol. 1 at 33-34.) Officer Young testified that, during the drive,

Pecina made additional spontaneous statements, including “she’s got nothing to do

with this” and “it’s on me.” (Ex. A at 5; Tr. Vol. 1 at 34.) 

Permit me now to step back for a moment to describe how exactly the Dodge

Charger (and Pecina and Valenzuela) got to that Hammond motel on the morning of

their arrest. The story is hazy. What they were doing in Hammond, who they were

staying with, and how they acquired money during their months-long visit remain

mysteries after Valenzuela’s testimony. For instance, Valenzuela testified that she and

Pecina and their child stayed in Hammond for months with Pecina’s aunt, who had

picked up Valenzuela when she arrived at O’Hare Airport. Yet Valenzuela didn’t know

the aunt’s name. By contrast, another witness testified that Pecina was staying with a

woman in her late twenties named “Laura.” (See, e.g., Tr. Vol. 1 at 76-79, 84-85, 87, 92,

116-117.) These particulars are immaterial to this motion, but the contortions and halftruths laced throughout Valenzuela’s testimony made it evident that her account of

events must be treated with extreme caution on even the most basic of points. See United

States v. Edwards, 581 F.3d 604, 612 (7th Cir. 2009).

9
During his long visit to the area, Pecina apparently bought the Charger.

Extensive testimony was presented regarding Pecina’s relationship to the car, which

bears on his privacy interest in the car and his resulting standing to challenge the search

and move to suppress evidence. To call the story of the car a bit odd doesn’t quite do it

justice; it’s actually stranger than fiction, but it requires only brief description here. The

car’s previous owner, Chelsey Kerr, drove from Iowa to Hammond around October

2013. When she got here she spent the night with Pecina in a hotel room bankrolled by

Pecina’s friend Justin Jones; the next day she sold the car to Pecina, eventually signing

over the title. (Tr. Vol. 1 at 97, 109-111, 114, 120; Ex. R.) For reasons that are entirely

unclear, Kerr later reported the car stolen, although that report was determined to be

unfounded. (Exs. 6, P, Q; Tr. Vol. 1 at 35-36, 63.) Jones agreed to take care of the title of

the car for Pecina, because, according to Jones, Pecina “didn’t want it in his name”

because Pecina didn’t have a license. (Tr. Vol. 1 at 109, 115 .) The problem with Pecina’s

request was that Jones “had too many cars in his” name (id.), so he asked Sara Klee, his

friend’s girlfriend’s ex-stepdaughter, whom he had met during the preceding month, to

title the Charger in her name in exchange for allowing Klee to use one of Jones’s cars, a

greenish car that may have been a Subaru. Klee’s name was on the title to the Charger,

but she never touched the Charger after going with Jones to get insurance and license

plates. (Tr. Vol. 1 at 34, 95-98, 100, 102, 109, 113, 117.)

Despite this muddled saga, it appeared from the testimony that the car really

was Pecina’s, and he had full use of it. (Tr. Vol. 1 at 34, 95-96, 98, 114.) The contents of

10
the car when it was impounded belonged to him, not to Klee. And there was a child’s

carseat in the back that Valenzuela said she and Pecina had borrowed from Pecina’s

aunt for their child, which is plausible. (Tr. Vol. 1 at 82.)

ANALYSIS

The Fourth Amendment protects people’s right to be free from unreasonable

searches and seizures. A police officer can’t stop a car and detain the occupants, even

temporarily, unless the officer has probable cause to believe that a crime, including a

traffic violation, has occurred because such a stop qualifies as a seizure. See, e.g., Whren

v. United States, 517 U.S. 806, 809-10 (1996); Carmichael v. Vill. of Palatine, 605 F.3d 451,

456 (7th Cir. 2010). An officer also can’t arrest a person without probable cause to

believe that person committed a crime. That is, “[a] warrantless arrest of an individual

in a public place for a felony, or a misdemeanor committed in the officer’s presence, is

consistent with the Fourth Amendment if the arrest is supported by probable cause.”

Maryland v. Pringle, 540 U.S. 366, 370 (2003) (citations omitted). Once someone is under

arrest, law enforcement officers may conduct a search incident to the arrest, but may

only search the space within the arrestee’s immediate control to prevent the arrestee

from accessing either a weapon or evidence that the arrestee can then destroy. In the car

context, law enforcement may also search a car incident to the arrest of an occupant of

the car “when it is reasonable to believe that evidence of the offense of arrest might be

found in the vehicle.” Arizona v. Gant, 556 U.S. 332, 335 (2009). 

11
A criminal defendant may move to suppress evidence that law enforcement

obtained due to an illegal search or seizure. If a search or seizure is no good, then all of

the evidence obtained as a direct or indirect result will be excluded as the fruit of the

poisonous tree. The taint attaches broadly to any evidence obtained by law

enforcement’s illegal act, and can cover physical evidence and statements. 

Wong Sun v. United States, 371 U.S. 471, 484-88 (1963); United States v. Conrad, 673 F.3d

728, 732 (7th Cir. 2012).

As a threshold matter, a defendant can’t move to suppress evidence seized in an

illegal search unless he had a legitimate expectation of privacy in the area searched.

United States v. Torres, 32 F.3d 225, 230 (7th Cir. 1994) (citing Rakas v. Illinois, 439 U.S. 128

(1978); United States v. Duprey, 895 F.2d 303, 309 (7th Cir. 1989), cert. denied, 495 U.S. 906

(1990)). He can only assert a violation of his own Fourth Amendment rights, not anyone

else’s. United States v. Padilla, 508 U.S. 77, 81 (1993). In other words, only a person

whose own rights have been violated has standing to move for suppression.

The Charger’s provenance makes mud seem clear. According to Jones there was

some problem with Pecina’s license that prevented him from owning a car, so Pecina set

up a proxy to circumvent the problem. I expect we’ll never understand exactly why

Chelsey Kerr drove the car from Iowa to Hammond or sold it to Pecina, or why Jones

engineered the transfer. Klee’s and Jones’s stories had huge holes in them, and, like

Valenzuela, I didn’t find either of them particularly credible. Still, the sum of the

testimony does convince me that neither Klee nor Jones had control over or regular use

12
of the Charger, and that Pecina did. Despite the obvious machination in ownership, it

does appear that Pecina had a legitimate privacy interest in the car. As a result, I find

that Pecina does have standing to challenge the search and to move to suppress the

evidence.

Moving on to whether suppression is appropriate, the resolution of Pecina’s

motion requires that I decide whether, when, how, and why Officer Young could

permissibly detain Pecina, and whether, when, and why Officer Young could legally

search the vehicle. A police officer’s actions in a stop are adjudged objectively by asking

whether a reasonable officer in the officer’s position at the time could have believed he

had probable cause to act, which means a reasonable ground for belief of guilt.

Maryland v. Pringle, 540 U.S. 366, 370-71 (2003) (“[T]he substance of all the definitions of

probable cause is a reasonable ground for belief of guilt . . . . To determine whether an

officer had probable cause to arrest an individual, we examine the events leading up to

the arrest, and then decide whether these historical facts, viewed from the standpoint of

an objectively reasonable police officer, amount to probable cause.” (internal quotation

marks, citations omitted.)). Odd as it may seem, even the officer’s misinformation (so

long as the information was reasonably trustworthy) and “the subjective motivations of

the officer do not invalidate a search otherwise supported by probable cause” because

the probable cause inquiry is entirely objective. Carmichael v. Vill. of Palatine, 605 F.3d

451, 457 (7th Cir. 2010) (citation omitted); see also United States v. Beltran, 752 F.3d 671,

678 (7th Cir. 2014). 

13
The clearest way to assess the constitutionality of Officer Young’s actions is to

walk through the stop, arrest, and search chronologically, so that’s how I’ll proceed.

A. The Traffic Stop

First, the traffic stop itself. To stop a vehicle for a traffic infraction, an officer

must have probable cause to believe the driver committed a traffic violation. United

States v. Moore, 375 F.3d 580, 583 (7th Cir. 2004) (citing Whren v. United States, 517 U.S.

806, 809-10 (1996)). Once it is established that the officer had probable cause for a traffic

stop, whatever other subjective, underlying reasons the officer may have had are

irrelevant to the legality of the stop. Id. at 583 n.1. In Indiana, an officer may stop a

vehicle for having a “rear back window” tinted to such an extent that “the occupants of

the vehicle cannot be easily identified or recognized through that window from outside

the vehicle.” I.C. § 9-19-19-4(c). An officer may also stop a vehicle for turning without

signaling. I.C. § 9-21-8-25.

I note that while Pecina developed evidence to challenge both the tinting and

failure to signal rationales for the stop at the hearing, he appears to concede the tint

issue in his supplemental briefing. (DE 53 at 1-2 (“Based on the tint of the back windows

of the Dodge Charger, it appears Detective Young had probable cause to conduct a

traffic stop of the Charger.”).) Based on the evidence, I find probable cause existed for

both bases for the traffic stop, so I will address the issue briefly despite the concession.

Officer Young wrote in his report and testified that Pecina’s Charger had

windows on which “the tint was dark to the point where I could not see inside of the

14
vehicle to identify occupants or see if the individuals were wearing seatbelts.” (Ex. A at

2;Tr. Vol. 1 at 12, 42-43.) Officer Young also wrote in his report and testified that the

driver of the Charger, after leaving the Best Western lot, appeared to observe the

unmarked police vehicle and quickly turned into the Motel 6 lot without signaling the

turn. Valenzuela testified that she knew she signaled that day because she “frequently”

(not “always” or “habitually”) uses her turn signal when she drives. (Tr. Vol. 1 at 70.)

I found Officer Young to be very credible, notwithstanding his mistakes on

certain non-determinative details. Valenzuela’s story, on the other hand, didn’t hold

together on even the most basic points (like who she stayed with during her monthslong visit to Indiana), and was shown by the surveillance video to be patently false with

respect to the material issue of whether Officer Young’s police car had its lights on

during the traffic stop. I believe that Officer Young saw the violations and reasonably

believed he had probable cause for the traffic stop, so the stop was warranted.

One last point on the validity of the traffic stop is the fact that when Officer

Young actually approached the Charger, the Charger was parked. Pecina argues that “it

is not clear that the occupants [of the Charger] were aware that Detective Young was

conducting a traffic stop.” (DE 53 at 12.) The surveillance video proves otherwise. The

video shows that the Charger was parked for mere seconds before Officer Young pulled

up behind it with his lights flashing. Pecina’s reaction to the police car indicates he

recognized the traffic stop at that point, and yet he didn’t stop. And as Valenzuela

15
exited the Charger she craned her head over her shoulder to look at the police car,

indicating she had seen it before she started to get out of the Charger.

B. Pecina’s Detention

After initiating the traffic stop, Officer Young handcuffed Pecina and put Pecina

into the police car. This could have been legal as either an arrest supported by probable

cause, or as part of an investigatory Terry stop supported by reasonable suspicion. See

Terry v. Ohio, 392 U.S. 1, 30-31 (1968). The government alleges there was probable cause

for the crime of resisting law enforcement (as well as an additional offense that I needn’t

discuss). Resisting law enforcement is a misdemeanor under Indiana law, and it

includes a person’s “flee[ing] from a law enforcement officer after the officer has, by

visible or audible means, including operation of the law enforcement officer’s siren or

emergency lights, identified himself or herself and ordered the person to stop.” I.C. §

35-44.1-3-1(a)3

; see also Cole v. State, 475 N.E.2d 306, 309 (Ind. 1985).

The question I must answer is whether Pecina’s brief attempt to flee, after getting

out of the car, qualifies as resisting law enforcement. To be sure, an order by a police

officer to stop in a traffic situation applies to the car’s driver and its passengers because

once a lawful stop is made the driver and any passengers in the car are “subject to the

officer[’s] custody and control until [the officer’s] safety [can] be assured.” United States

v. Moore, 375 F.3d 580, 583 and n.1 (7th Cir. 2004) (citations and quotation marks

3

 A revised version of this law went into effect on July 1, 2014. The relevant

section of the law did not change.

16
omitted); see also Maryland v. Wilson, 519 U.S. 408, 414-15 (1997) (“an officer making a

traffic stop may order passengers to get out of the car pending completion of the stop”

because danger to officer is greater when there are passengers in addition to driver,

intrusion on passengers is minimal). A passenger in a car involved in a traffic stop may

be questioned by the police “without [law enforcement’s] questions being deemed a

‘seizure’ for Fourth Amendment purposes (and thus perhaps requiring reasonable

suspicion or probable cause to justify the questions being asked at all).” Moore, 375 f.3d

at 583 (citations omitted).

During the traffic stop Officer Young had custody and control over both driver

Valenzuela and passenger Pecina, and his police lights identified him as a police officer

and served as a valid order to stop. See United States v. Moore, 375 F.3d 580, 583 and n.1

(7th Cir. 2004); Cole v. State, 475 N.E.2d 306, 309 (Ind. 1985) (“The Court of Appeals of

Indiana has held, and we agree, that the meaning of this statute is that both the police

officer’s identification and his order to stop may be accomplished by acts visible to the

defendant.”). The surveillance video shows that Officer Young had his car’s police

lights turned on as he pulled behind the Charger and stopped. Pecina initially got out of

the Charger and moved towards the back of the Charger, then appeared to see the

police vehicle with its lights on and effected a quick about-face. At that point Officer

Young verbally identified himself as the police and commanded Pecina to stop,

according to both Officer Young’s testimony and Valenzuela’s. The video shows Pecina

walking quickly away from the police vehicle. Because the video doesn’t have sound it’s

17
impossible to say how much time passed between the verbal command and Pecina’s

halt — but it couldn’t have been long because Pecina didn’t go far. But that is irrelevant.

Under Indiana law, police lights can serve as police identification and a command to

stop. It is evident in the video that when Pecina saw the police car with its lights on pull

up right behind the Charger, blocking the car’s movement, Pecina fled, albeit briefly. 

Whether a viewer of the video would, in hindsight, agree that Pecina was fleeing

(and I think the quick 180 when he saw the police lights shows he was), the relevant

question here is whether a reasonable officer could have believed he was at the time of

the incident. Officer Young testified that he knew the area he was in to host significant

drug and prostitution activity, he observed the Charger make what he considered a toobrief stop at the Best Western, he believed that the Charger was trying to avoid police

attention, and he observed the Charger park in the Motel 6 lot and the passenger hurry

out and move towards Officer Young’s car then spin away once he saw the police lights.

A reasonable officer could well have believed that Pecina was trying to flee. Officer

Young therefore had probable cause to arrest Pecina for the misdemeanor of resisting

law enforcement, committed in Young’s presence. The statements Pecina made while

being handcuffed and put in the police car will therefore not be suppressed.

Pecina cited one case to refute probable cause for resisting law enforcement, but

that case is entirely distinguishable, as it turns on a person’s duty to stop in response to

a police command. In Bovie v. Indiana the defendant claimed that the dual alleged bases

for an investigatory stop – a traffic violation and suspected drug activity – were both

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invalid. 760 N.E.2d 1195, 1197-98 (Ind. App. 2002). The reasoning regarding the latter is

irrelevant here, as the Charger’s traffic violations provided sufficient basis for the stop.

The traffic stop in Bovie wasn’t valid because the court held that Indiana Code § 9-30-2-

2 required an officer making a traffic stop to be wearing a uniform and badge or to be

driving a clearly marked police vehicle, and the officer who stopped Bovie was wearing

plainclothes and driving an unmarked car. An invalid investigatory stop creates no

duty to stop. Id. at 1197. I have determined that Officer Young’s traffic stop was valid,

so Pecina, as a passenger in the car, did have a duty to stop, unlike Bovie, and his failure

to do so constituted resisting law enforcement. 

Let’s suppose for the moment that Officer Young lacked probable cause to arrest

Pecina for resisting law enforcement. The issue would then be whether Officer Young

had a reasonable suspicion to detain Pecina under Terry. While conducting a stop at

gunpoint and handcuffing a person subject to a stop aren’t, and certainly shouldn’t be,

the norm, the Seventh Circuit has been very clear that neither of those uses of force by a

police officer automatically transforms a stop into an arrest. Detention may be

reasonable in a Terry stop if the subject is a flight risk. See, e.g., United States v. Howard,

729 F.3d 655, 661 (7th Cir. 2013) (“Handcuffs in a Terry stop and frisk are not and should

not be the norm. Their use is not always unconstitutional, though, at least where police

officers can point to specific reasons for believing that handcuffing the particular person

during the stop was needed for safety or to prevent flight. ” (citations omitted.)); Rabin

v. Flynn, 725 F.3d 628, 639 (7th Cir. 2013) (Rovner, J. concurring) (“A second line of cases

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has relied on the risk of flight to justify the use of handcuffs while the detained

individual is being questioned.” (collecting cases)); United States v. Glenna, 878 F.2d 967,

972-73 (7th Cir. 1989) (broad discussion of extent of permissible force in Terry stop,

citing Ninth and Eleventh Circuit cases finding handcuffs don’t automatically convert

stop into arrest, citing Seventh Circuit case holding that conducting stop at gunpoint

was reasonable under the circumstances). 

The key is the reasonableness of the officer’s use of force under the

circumstances. Jewett v. Anders, 521 F.3d 818, 824-25 (7th Cir. 2008). One fact to keep in

mind in considering an officer’s use of force is that traffic stops are dangerous for law

enforcement. In 2012 (the most recent reported year) they resulted in eight felonious

killings and 4,450 injuries to law enforcement officers. Federal Bureau of Investigation,

Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted, Tables 21, 68

(2012) (accessible at http://www.fbi.gov/about-us/cjis/ucr/leoka/2012). 

The surveillance video indicates that Pecina initially moved away from the police

car. Officer Young testified that his training and experience led him to interpret Pecina’s

movement as a precursor to making a run for it, and Officer Young was alone with both

Pecina and Valenzuela. Handcuffing Pecina and putting him in the police car were

reasonable actions even as part of a stop, rather than an arrest, because Officer Young

believed that Pecina might try to flee. Officer Young asked Pecina exactly the

identifying questions typical of a Terry stop (the video confirms he didn’t talk to Pecina

for long), then went to ask the same questions of Valenzuela. 

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So although I’ve found that probable cause was present for an arrest, even if

there wasn’t probable cause, Officer Young’s initial detention of Pecina was also

consistent with a Terry stop. In sum, the stop and handcuffing were legal, so Pecina’s

statements while being handcuffed and put in the police car won’t be suppressed.

C. The Car Search

Whether Officer Young arrested Pecina when he first put Pecina into the police

car, or he only secured Pecina for a Terry stop, Officer Young couldn’t legally search the

Charger unless he smelled marijuana emanating from it. Under Gant, neither the traffic

violations nor resisting law enforcement could be evidenced by any item in the car, and

the government hasn’t claimed that Officer Young needed to search the car for weapons

or destructible evidence that might have been accessible to Valenzuela (and recall that

Pecina was handcuffed and in the police car, so he couldn’t reach anything in the

Charger).

Officer Young says he smelled marijuana when he got out of his car and ran to

intercept Pecina. The parties dispute whether Pecina left the passenger door open when

he got out, and whether it was open for only a moment, or whether it remained open

while Officer Young intercepted Pecina. I think the video shows Pecina closing the car

door. While marijuana has a distinctive and strong odor and it’s hypothetically possible

Officer Young smelled it as he exited his car, pulled out his gun, verbally identified

himself and ordered Pecina to stop, ran around the car next to the Charger, and

detained Pecina, I think it’s more likely that Officer Young conflated his later scenting of

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marijuana with the earlier time period. I don’t think that conflation is intentional on

Officer Young’s part as Pecina contends (DE 53 at 7), and I don’t see it as a deliberate

falsehood.

After placing Pecina into the police car, Officer Young moved to the driver’s-side

door of the Charger to talk to Valenzuela. During that conversation he confirmed that

Pecina had lied about his own name and date of birth when Valenzuela told Officer

Young Pecina’s real name and presented Pecina’s driver’s license. Officer Young spoke

to Valenzuela, who was sitting in the driver’s seat, through the open driver’s-side door.

Regardless of whether Officer Young had smelled marijuana earlier as he pursued

Pecina, he had a full opportunity to smell it during his conversation with Valenzuela. 

Pecina argues that the circumstances refute Officer Young’s allegation that the

car smelled of marijuana at all. Specifically, Pecina argues that the 7:30 a.m. traffic stop

would have meant very early morning marijuana use, which he claims is unlikely, and

that there is no evidence that Pecina or Valenzuela appeared to be under the influence.

Pecina also claims that he had the car washed and the interior vacuumed the evening

before the traffic stop, so there wouldn’t have been any lingering marijuana smell from

before the wash, and he wouldn’t have immediately sullied the car with the smell of

marijuana and an unwrapped blunt in the door compartment. He also argues the air

freshener would have masked any marijuana smell. (DE 53 at 2-3.) He also notes that no

matches, lighter or ashes were noted as recovered from the vehicle, and that the tiny

cigar stub was too small to emit a strong odor. (DE 53 at 4, 7.) Pecina argues that the

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surveillance video shows that Officer Young didn’t immediately respond to the smell of

the cigar in conducting his search, as he would have done if it were emitting a strong

odor. (DE 53 at 3, 7.) Pecina also notes that no evidence has been presented that any

officer other than Officer Young smelled marijuana. (DE 53 at 4.) Finally, Pecina alleges

that Officer Young didn’t place the exposed cigar in a plastic wrapping, as Officer

Young says, but rather that the cigar was already in the wrapping, because placing the

cigar in the wrapper would have violated evidence-handling best practices, and it is

unlikely that the officers would have rearranged evidence and failed to use proper

evidence bags. If the cigar was in the wrapping, Pecina claims, the smell would have

been smothered. (DE 53 at 4-6.) 

I find Pecina’s arguments unconvincing. On the most basic level, Pecina decries

the lack of corroboration for Officer Young’s statement that he smelled the odor of

smoked marijuana coming from the car, but this ignores the simple fact that the

statement is corroborated by the presence of a mostly-smoked marijuana cigar in the car.

Furthermore, I see no basis for concluding that Pecina and Valenzuela wouldn’t have

smoked marijuana first thing in the morning; such activity is apparently so

commonplace it has been colloquially assigned the term “wake and bake” (Wake and

Bake Definition, URBANDICTIONARY.COM, 

http://www.urbandictionary.com/define.php?term=wake%20and%20bake (last

visited August 4, 2014)). Simply arguing that it was too early to get high is unavailing.

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As for the other arguments, Pecina doesn’t claim Officer Young was under any

obligation to administer a field sobriety test, so I don’t derive any significance from the

fact that he didn’t – sobriety wasn’t the issue at that point. (Tr. Vol. 1 at 62.) No other

officers who were present for the incident testified, so there’s no suggestion they didn’t

smell marijuana. As for the evidence of the carwash, while it is all conjecture at this

point, it just as easily could cut against Pecina’s argument — the cigar appears to be

spent (defense briefing describes it as “a single, small, leftover blunt” (DE 53 at 7)), and

if it had been like that before the carwash visit it would likely have been vacuumed up

or thrown in the garbage in the usual trash purge that occurs at the carwash. The fact

that it was there in the morning suggests that it was used between the evening carwash

and the morning traffic stop. The fact that it was so small and there was so little left

after the rest had been smoked corroborates the fact that the whole car would have

smelled of marijuana.

In sum, Officer Young was a credible witness and I believe that he smelled the

odor of marijuana coming from the car as he spoke to Valenzuela with the car door

open. That provided probable cause to believe the occupants of the car possessed

marijuana and to arrest them, and a search of the car was legal because it was likely the

Charger contained marijuana (evidence of the crime of possessing marijuana). See

United States v. Peters, 743 F.3d 1113, 1117 (7th Cir. 2014); United States v. Franklin, 547

F.3d 726, 733 (7th Cir. 2008); United States v. Wimbush, 337 F.3d 947, 951 (7th Cir. 2003). 

The physical evidence found in the car will not be suppressed. 

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After legally searching the car based on smelling the odor of marijuana, and

finding the mostly-consumed marijuana-scented cigar and distribution quantity of

crystal methamphetamine, Officer Young had ample reason to arrest Pecina for drug

crimes, as well as for the initial crime of resisting law enforcement. See, e.g., Maryland v.

Pringle, 540 U.S. 366, 372-73 (2003) (holding that cocaine kept in passenger area of car

was accessible to all three occupants, and any or all three could have knowledge of

control over drugs, so reasonable officer could find probable cause to arrest any or all

occupants). The arrest was valid on the grounds of both resisting law enforcement and

illegal drug possession, so Pecina’s later statements will not be suppressed.

CONCLUSION

For the foregoing reasons, Pecina’s Motion to Suppress Evidence is DENIED.

(DE 21.) 

SO ORDERED.

ENTERED: August 4, 2014

/s/ Philip P. Simon

PHILIP P. SIMON, CHIEF JUDGE

UNITED STATES DISTRICT COURT

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