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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
VICTOR J. DOMINGUEZ-FERNAND (01),
et al.
Defendants.

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No. 1:15-cr-00220-JMS-MJD

ORDER ON MOTION TO SUPPRESS
Presently pending before the Court is Defendant Victor J. Dominguez-Fernand’s Motion
to Suppress. [Filing No. 71.] Mr. Dominguez-Fernand has been indicted with one count of
possession with intent to distribute methamphetamine and one count of conspiracy to possess with
intent to distribute methamphetamine. [Filing No. 22.] He moves to suppress evidence found in
the vehicle he was driving after what he contends was an unconstitutional traffic stop in violation
of the Fourth Amendment to the United States Constitution. [Filing No. 72.] The Government
opposes his motion, [Filing No. 72], and the Court held an evidentiary hearing on May 26, 2016,1
[Filing No. 87]. Mr. Dominguez-Fernand filed an unanticipated supplemental memorandum on
June 6, 2016, [Filing No. 92], the Court allowed the Government to file a response, [Filing No.

1

Although the Government argued that an evidentiary hearing on Mr. Dominguez-Fernand’s
motion was unnecessary, [Filing No. 78 at 5], the Court disagreed. The parties submitted
conflicting evidence with their briefs regarding the circumstances surrounding the traffic stop at
issue, [see, e.g., Filing No. 72-1 (Mr. Dominguez-Fernand’s affidavit); Filing No. 78-1 (Deputy
Ernstes’ affidavit)], rendering a hearing necessary, see United States v. Curlin, 638 F.3d 562, 564
(7th Cir. 2011) (holding that district courts are required to conduct hearings on a motion to suppress
“when a substantial claim is presented and there are disputed issues of material fact that will affect
the outcome of the motion”).

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93], and it has now done so, [Filing No. 94]. For the reasons that follow, the Court grants Mr.
Dominguez-Fernand’s Motion to Suppress. [Filing No. 71.]
I.
APPLICABLE STANDARD
The Fourth Amendment to the United States Constitution protects the “right of the people
to be secure in their persons, houses, papers and effects, against unreasonable searches and
seizures. . . .” U.S. Const. amend. IV. Generally, a warrantless search or seizure in the absence
of probable cause is unreasonable. United States v. Slone, 636 F.3d 845, 848-49 (7th Cir. 2011).
When police conduct an unreasonable search or seizure, the exclusionary rule usually vindicates
the Fourth Amendment’s protections by keeping out the unlawfully obtained evidence. Id.
The Government bears the burden of proving by a preponderance of the evidence that a
warrantless stop is supported by probable cause. United States v. Peters, 743 F.3d 1113, 1116 (7th
Cir. 2014) (citations omitted). This means that the Government meets its burden when it
establishes that its position is more probably true than not true. See, e.g., Crabtree v. Nat’l Steel
Corp., 261 F.3d 715, 722 (7th Cir. 2001) (affirming the district court’s explanation of the burden
of proof for a preponderance of the evidence standard sufficient when defined as “more probably
true than not true”). “When a police officer reasonably believes that a driver has committed even
a minor traffic offense, probable cause supports the stop.” Peters, 743 at 1116; see also United
States v. Reaves, 796 F.3d 738, 741 (7th Cir. 2015) (“An officer has probable cause for a traffic
stop when she has an ‘objectively reasonable’ basis to believe a traffic law has been violated.”).

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II.
FINDINGS OF FACT2
What follows is a description of the evidence submitted with the parties’ briefs and
presented at the evidentiary hearing held on Mr. Dominguez-Fernand’s Motion to Suppress. In
summarizing this evidence and ultimately making the findings of fact, the Court has considered
the video evidence presented, as well as the testimony and demeanor of the witnesses who testified
at the evidentiary hearing: Hancock County Sheriff Deputy Nicholas Ernstes, Mr. DominguezFernand, and Timothy Ziegler.3
Deputy Ernstes has been a certified police officer since 1998 and a certified K9 handler
since 2013. He is a coordinator of the ProActive Criminal Enforcement (“PACE”) unit. The
purpose of the PACE unit is to enforce traffic regulations and find drug contraband.
At approximately 10:30 a.m. on November 18, 2015, Deputy Ernstes was parked in a fully
marked police car in a median on Interstate 70, observing traffic approaching mile marker 113.
He had a K9 dog, Manni, in the police car with him. Deputy Ernstes’ police car was equipped
with a dashboard camera (the “dash-cam”) that he could manually turn on to record. Alternatively,
when Deputy Ernstes activated the police car’s emergency lights, the dash-cam would
automatically back up thirty seconds and record from that point forward.

2

To the extent that any findings of fact should be considered conclusions of law, they should be
deemed to be such.
Mr. Ziegler, who works with Mr. Dominguez-Fernand’s defense counsel, testified regarding the
authenticity of Defendant’s Exhibit 1—a video Mr. Ziegler took the day before the evidentiary
hearing of the relevant portion of Interstate 70. The Court gave the Government twenty-four hours
after the hearing to decide whether it would submit evidence in response, [Filing No. 87 at 1], but
it notified the Court the following day that it would not do so. The video was not played at the
hearing, but the Court did review it after the hearing.
3

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The weather was rainy and overcast on the morning in question. From his location, Deputy
Ernstes could see the approaching cars for roughly one mile down the interstate, and approximately
90% of the cars he saw had their headlights turned on. The speed limit for that portion of the
interstate is 70 miles per hour.
Mr. Dominguez-Fernand was driving a black Mitsubishi Mirage rental car with New York
license plates.4 Defendant Ishmal Hamilton was in the passenger seat of the car. Mr. DominguezFernand is Dominican and Mr. Hamilton is African-American. Mr. Dominguez-Fernand’s car
came to the attention of Deputy Ernstes as it approached mile marker 113 on Interstate 70 because
it was traveling approximately 58 miles per hour in the right lane. Deputy Ernstes testified that he
believed the headlights on Mr. Dominguez-Fernand’s car were turned off, which he thought was
a traffic violation because of the weather conditions. Deputy Ernstes did not see any vehicles
around Mr. Dominguez-Fernand’s car. He testified that he pulled out from the median 30 seconds
to one minute after Mr. Dominguez-Fernand’s car passed and caught up to the car three miles later
around mile marker 110. It is undisputed that the headlights on Mr. Dominguez-Fernand’s car
were turned on when Deputy Ernstes caught up to him and that Mr. Dominguez-Fernand’s car was
still traveling at 58 or 60 miles per hour in the right lane.
Deputy Ernstes testified that when he caught up to Mr. Dominguez-Fernand’s car, he saw
that it was too closely following a vehicle in front of it. It was unclear from his testimony at the
hearing whether he observed this from his police car when it was next to or behind Mr. DominguezFernand’s car. Deputy Ernstes attested in an affidavit submitted before the hearing that he
“pull[ed] his vehicle even with the black Mitsubishi” to confirm its speed and observed at that time

4

Because there is no evidence that Deputy Ernstes was aware that the car was a rental car before
he stopped it, that fact is not relevant to the Court’s analysis. Thus, the Court will refer to the car
Mr. Dominguez-Fernand was driving as “Mr. Dominguez-Fernand’s car.”
4

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that it was allegedly following the vehicle in front of it too closely. [Filing No. 78-1 at 1-2.]
Deputy Ernstes does not remember what type of vehicle was in front of Mr. Dominguez-Fernand’s
car. Deputy Ernstes testified that he used a method that involved counting the “skip lines” on the
roadway to determine that Mr. Dominguez-Fernand’s car was allegedly closer to the vehicle in
front of it than the “two-second rule” established in the Indiana Driving Manual. Deputy Ernstes
testified that based on that calculation, he believed Mr. Dominguez-Fernand had violated Indiana
Code § 9-21-8-14. [See also Filing No. 78-1 at 1-2.] Deputy Ernstes testified that he only saw the
alleged traffic infraction for a few seconds.
Deputy Ernstes continued to follow Mr. Dominguez-Fernand’s car and ultimately activated
his police car’s emergency lights, stopping Mr. Dominguez-Fernand’s car around mile marker 108.
Because Deputy Ernstes did not manually turn on the dash-cam to record before that point, it is
undisputed that the available dash-cam video does not show either of the alleged traffic violations
that Deputy Ernstes testified he witnessed Mr. Dominguez-Fernand commit.
The available dash-cam video shows that the taillights on Mr. Dominguez-Fernand’s car
were on for at least 30 seconds before Deputy Ernstes turned on his emergency lights. It shows
that it was raining and that a box truck was in the distance in front of Mr. Dominguez-Fernand’s
car. Mr. Dominguez-Fernand immediately pulled his car to the side of the road when Deputy
Ernstes activated his emergency lights. Deputy Ernstes got out of his police car and ultimately
told Mr. Dominguez-Fernand that he stopped him for too closely following the vehicle in front of
him. Deputy Ernstes never mentioned the headlight violation he allegedly observed when he first
saw Mr. Dominguez-Fernand’s vehicle around mile marker 113.
Mr. Dominguez-Fernand gave his license to Deputy Ernstes upon request, and Deputy
Ernstes determined that Mr. Dominguez-Fernand’s license was suspended. Mr. Dominguez5

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Fernand, whose primary language is Spanish, then told Deputy Ernstes he was unaware it was
suspended. He learned after the traffic stop that it was suspended because he had not appeared in
court for some traffic tickets. Mr. Dominguez-Fernand had been driving for several hours and it
had been raining heavily for ten to fifteen minutes before he was stopped by Deputy Ernstes. Mr.
Dominguez-Fernand specifically remembered that the headlights on the car were turned on
because he had been continuously driving through the night and the car’s dashboard was lit up for
visibility. He emphasized that he drove a delivery truck for a living and that he was intentionally
driving slower than the speed limit because of the rain. He maintained a five or six second distance
between his car and the box truck in front of him because it was spraying a lot of water up because
of the rain. Indeed, the dash-cam video shows that the rain caused trucks traveling on Interstate
70 to spray water behind them for a considerable distance.
Mr. Dominguez-Fernand does not challenge that he ultimately gave Deputy Ernstes
consent to search the car. Deputy Ernstes deployed his K9 dog and, upon further investigation,
Deputy Ernstes and another officer that had arrived at the scene located in the car what was later
determined to be methamphetamine.
On December 8, 2015, Mr. Dominguez-Fernand was indicted with one count of possession
with intent to distribute methamphetamine and one count of conspiracy to possess with intent to
distribute methamphetamine. [Filing No. 22.] He filed a Motion to Suppress on April 11, 2016,
[Filing No. 71], and the Government opposes that motion, [Filing No. 78; Filing No. 94].
III.
DISCUSSION
Mr. Dominguez-Fernand seeks to suppress the evidence of methamphetamine recovered
after what he contends was an illegal stop of the car he was driving. At issue in this case is whether
the Government has met its burden to show by a preponderance of the evidence that Mr.
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Dominguez-Fernand committed a traffic offense, such that Deputy Ernstes had probable cause to
stop Mr. Dominguez-Fernand’s car. Mr. Dominguez-Fernand and Deputy Ernstes dispute the two
key facts at issue—namely, whether Mr. Dominguez-Fernand was driving without his car’s
headlights turned on in violation of Indiana Code § 9-21-7-2(a) and whether he followed another
vehicle too closely in violation of Indiana Code § 9-21-8-14. It is undisputed that neither of Mr.
Dominguez-Fernand’s alleged traffic violations are visible on the dash-cam video admitted into
evidence. [Filing No. 73.] Thus, this case presents two key questions of fact, the answers to which
the Court will determine based on the evidence of the circumstances surrounding the stop and the
credibility of the testimony presented by the witnesses at the evidentiary hearing.
A. Alleged Headlight Violation
The parties dispute whether the headlights on Mr. Dominguez-Fernand’s car were turned
off in violation of Indiana Code § 9-21-7-2(a) as he approached Deputy Ernstes at mile marker
113 on Interstate 70. [Filing No. 72; Filing No. 78.] Deputy Ernstes testified at the evidentiary
hearing that Mr. Dominguez-Fernand’s car’s headlights were off, but Mr. Dominguez-Fernand
testified that the headlights were on the entire time. [See also Filing No. 72-1 (Mr. DominguezFernand’s affidavit); Filing No. 72-2 (Deputy Ernstes’ affidavit).]
Indiana Code § 9-21-7-2(a) provides, in relevant part, that between sunrise and sunset, each
vehicle traveling upon a highway “must display lighted head lamps and other illuminating devices”
if “persons and vehicles on the highway are not clearly discernible at a distance of five hundred
(500) feet ahead.”
Based on his demeanor and explanation at the evidentiary hearing, the Court finds Mr.
Dominguez-Fernand’s testimony that he had been driving since it was dark and that he knew the
headlights on his car were on because the dashboard was illuminated to be credible. Deputy
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Ernstes’ dash-cam video bolsters this conclusion. First, it confirms that the taillights on Mr.
Dominguez-Fernand’s car were illuminated at least 30 seconds before Deputy Ernstes stopped him
a few minutes later. Second, the video confirms that Deputy Ernstes did not mention the alleged
headlight violation as a reason for the stop when he spoke with Mr. Dominguez-Fernand. For
these reasons, the Court concludes that the Government has not met its burden to prove by a
preponderance of the evidence that Deputy Ernstes had a reasonable belief that the headlights on
Mr. Dominguez-Fernand’s car were turned off as his car approached Deputy Ernstes at mile
marker 113 on Interstate 70.
Alternatively, even if Mr. Dominguez-Fernand’s headlights were turned off as he
approached Deputy Ernstes, Deputy Ernstes’ testimony at the evidentiary hearing confirms that
the headlights did not need to be turned on pursuant to Indiana Code § 9-21-7-2(a). Deputy Ernstes
testified that as he was parked in the median on Interstate 70, he could see cars approaching him
roughly one mile away and that 90% of them had their headlights on. The Court takes judicial
notice that one mile is equal to 5,280 feet. Indiana Code § 9-21-7-2(a) only requires a car to have
its headlights turned on if it is not “clearly discernible at a distance of five hundred (500) feet
ahead.” Thus, because Deputy Ernstes’ testimony confirmed that even in the rainy weather
conditions at issue he could see vehicles approaching well more than 500 feet away, the Court
finds that Mr. Dominguez-Fernand was not required to have the headlights on his car turned on
pursuant to Indiana Code § 9-21-7-2(a).
For these reasons, the Court finds that the Government has not met its burden to show by
a preponderance of the evidence that Deputy Ernstes had probable cause to initiate a warrantless
stop of Mr. Dominguez-Fernand’s car for allegedly violating Indiana Code § 9-21-7-2(a).

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B. Alleged Violation for Following Vehicle Too Closely
The parties dispute whether Mr. Dominguez-Fernand’s car followed another vehicle too
closely in violation of Indiana Code § 9-21-8-14. [Filing No. 72; Filing No. 78.] Deputy Ernstes
testified at the evidentiary hearing that he observed Mr. Dominguez-Fernand’s car following
another vehicle too closely for a few seconds around mile marker 110 on Interstate 70, but Mr.
Dominguez-Fernand testified that he was five or six seconds behind the closest vehicle. [See also
Filing No. 72-1 (Mr. Dominguez-Fernand’s affidavit); Filing No. 72-2 (Deputy Ernstes’
affidavit).]
Indiana Code § 9-21-8-14 provides that “[a] person who drives a motor vehicle may not
follow another vehicle more closely than is reasonable and prudent, having due regard for the
speed of both vehicles, the time interval between vehicles, and the condition of the highway.” The
Seventh Circuit Court of Appeals has held that probable cause exists to believe that a driver is
following another vehicle too closely under Indiana law “when fewer than two seconds’ braking
time separated the vehicles.” Peters, 743 F.3d at 1115 (citing United States v. Muriel, 418 F.3d
720, 724 (7th Cir. 2005) (in assessing whether a vehicle is following another more closely than is
reasonable and prudent under Indiana law, the “use of the ‘two-second rule’ as a guide for
reasonableness comports with Indiana law”)).
It is apparent from the testimony of the witnesses at the evidentiary hearing that Mr.
Dominguez-Fernand more clearly remembers the circumstances leading to the traffic stop. For
example, Mr. Dominguez-Fernand testified that he was following a box truck and that he knows
he was five to six seconds behind it because it was spraying a lot of water and he wanted to
maintain a safe distance. He testified that he remained in the right lane, that cars were passing
him, and that he remained at a speed between 55 mph and 60 mph during the entire relevant period
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of time. Although the dash-cam video does not show the exact time period during which Deputy
Ernstes alleges that Mr. Dominguez-Fernand violated Indiana Code § 9-21-8-14, it does confirm
that a box truck was in the distance in front of Mr. Dominguez-Fernand’s car, that it was raining
hard enough for water from preceding vehicles—especially trucks—to spray towards a trailing
car, that Mr. Dominguez-Fernand’s car was in the right lane, and that multiple cars passed him on
the left during the 30 seconds before Deputy Ernstes turned on his emergency lights.
On the other hand, Deputy Ernstes testified that he could not remember anything about the
type of vehicle Mr. Dominguez-Fernand was allegedly too closely following. Deputy Ernstes’
affidavit, however, attests that he pulled alongside Mr. Dominguez-Fernand’s car to observe its
speed and that it was allegedly too closely following the preceding vehicle, [Filing No. 78-1 at 12], which would have given him a clear view of the large box truck Mr. Dominguez-Fernand was
following. The imprecise nature of Deputy Ernstes’ recollection is further underscored by the
Court’s previous conclusion that Deputy Ernstes was incorrect about the headlights on Mr.
Dominguez-Fernand’s car being turned off, as well as Deputy Ernstes’ testimony at the hearing
that he could only see one person in Mr. Dominguez-Fernand’s car, despite the fact that his
affidavit states he could see “that two males were located inside of the vehicle” when he pulled
alongside it. [Filing No. 78-1 at 2.] The impact of these inconsistences might have been lessened
if Deputy Ernstes had manually turned on his dash-cam to record the traffic violation he claims to
have seen. While he admits he could have done so, he did not, depriving the record of significant,
reliable evidence. As it stands, the evidentiary record offers little to corroborate Deputy Ernstes’
version of events with regard to Mr. Dominguez-Fernand’s alleged violation of following another
vehicle too closely.

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Reason and logic also support Mr. Dominguez-Fernand’s version. It is undisputed that Mr.
Dominguez-Fernand’s car was alone on the interstate when Deputy Ernstes initially saw it,
traveling in the right lane at a slower rate of speed than the flow of traffic. It is improbable, based
on the evidence presented at the hearing, that he would have somehow caught up to motorists who
were traveling significantly faster than he was and wind up following too closely in violation of
Indiana Code § 9-21-8-14.
The Government seems to contend that Deputy Ernstes’ testimony and conclusions alone
are sufficient to meet its burden, [Filing No. 94 at 1-2], but it is the Court’s role in this context to
determine what inferences are appropriate and to make the findings of fact. Here, both the
available video evidence and logic corroborate Mr. Dominguez-Fernand’s version of events to a
greater extent than Deputy Ernstes’ version.

Given this corroboration, and the absence of

corroborating evidence from the dash-cam that was within Deputy Ernstes’ control, the Court finds
that the Government has not met its burden of proof to show by a preponderance of the evidence
that Deputy Ernstes’ warrantless stop of Mr. Dominguez-Fernand’s car was supported by probable
cause.
C. Exclusionary Rule
The Court has found that the Government has not met its burden to prove that Deputy
Ernstes had probable cause to initiate a warrantless stop of Mr. Dominguez-Fernand’s car. Thus,
the stop was unlawful. Mr. Dominguez-Fernand asks the Court to suppress the illegal drugs found
in his vehicle as a result of the stop. [Filing No. 71.]
The exclusionary rule “forbids the use of unlawfully obtained evidence at trial.” United
States v. Gutierrez, 760 F.3d 750, 754 (7th Cir. 2014). It is a judicially created remedy that
prohibits the Government from introducing evidence of guilt at a defendant’s trial that was
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obtained through violations of the Fourth Amendment. United States v. Ienco, 182 F.3d 517, 526
(7th Cir. 1999). Evidence obtained as a result of an illegal arrest is “fruit of the poisonous tree”
and must be excluded unless the Government can show that an exception applies. United States
v. Swift, 220 F.3d 502, 507 (7th Cir. 2000).
The Court has already held that the Government has not met its burden to show by a
preponderance of the evidence that Deputy Ernstes had probable cause to stop Mr. DominguezFernand’s car. Thus, the exclusionary rule forbids use of the unlawfully obtained evidence at trial.
Since the Government has not argued that an exception to the exclusionary rule applies in these
circumstances, and it is the Government’s burden to do so, the Court concludes that the drugs
discovered in Mr. Dominguez-Fernand’s car must be suppressed.
IV.
CONCLUSION
For the reasons detailed herein, the Court GRANTS Defendant Victor J. DominguezFernand’s Motion to Suppress. [Filing No. 71.]
Date: June 13, 2016

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Electronic Distribution via CM/ECF:
Harold Samuel Ansell
ATTORNEY AT LAW
attorneyansell@gmail.com
William H. Dazey, Jr.
INDIANA FEDERAL COMMUNITY DEFENDERS
bill.dazey@fd.org

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Barry D. Glickman
UNITED STATES ATTORNEY'S OFFICE
barry.glickman@usdoj.gov
Peter A. Blackett
UNITED STATES ATTORNEY'S OFFICE
peter.blackett@usdoj.gov

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