Opinion
No. 02-40116-01-SAC
December 30, 2002
MEMORANDUM AND ORDER
This case comes before the court on the defendant Tevon Donjon Stokes's Motion to Suppress (Dk. 22). The government has filed a response opposing this motion. (Dk. 26). On December 17, 2002, the court heard evidence on the motion to suppress as well as counsels' arguments. Having reviewed all matters submitted and researched the law relevant to these issues, the court is ready to rule.
INDICTMENT
The grand jury returned a single count indictment against the defendant Tevon Donjon Stokes that charges him with felony possession of a firearm on September 17, 2002, in violation of 18 U.S.C. § 922(b).
FACTS
On September 17, 2002, at approximately 1:00 a.m., Officer Troy Lindvall with the Topeka Police Department answered a disturbance call at 2513 S.E. Jefferson. There was no report of gunshots associated with this call. He investigated the sighting of a possible prowler and patrolled the area for any activity. Finding none, he stopped near the corner of 25th Street and Jefferson and began writing his report. His windows were partially down when he heard multiple gunshots. There was an initial burst of seven to ten shots, and this was followed by a pause and then several more shots. Officer Lindvall perceived that the shots were made by at least two guns of different calibers and that the shots came from an area approximately a block away and to his north and west. Officer Lindvall testified that this area had a pretty significant crime problem, including drug trafficking and drive-by shootings, but that gunshots were not an everyday occurrence.
As he was radioing dispatch about the gunshots, Officer Lindvall observed a block away coming from the direction of the gunshots a white Cadillac headed south on Madison Street. It stopped at the intersection of 25th Street, and as it proceeded south through the intersection, the white Cadillac accelerated faster than normal traffic. Believing the occupants of the white Cadillac were involved in some way with the gunshots fired just seconds ago, Officer Lindvall activated his emergency lights and headed west on 25th Street one block and then turned south on Madison. While he was pursuing the white Cadillac, Officer Lindvall looked for other traffic and saw nothing else. The officer testified that a car immediately leaving the area from where the gunshots were fired would have had to pass within his view and that the only car he saw leaving the area was the white Cadillac.
Upon turning south on Madison, Lindvall saw the white Cadillac parked in the driveway of 2513 Madison with its brake lights on. Based on officer safety concerns created by this kind of a stop and the apparent involvement of weapons, Officer Lindvall radioed dispatch asking for assistance and began the procedures used for a high risk traffic stop. The officer put his spot light on the white Cadillac and used his public announcement system to order all of the occupants to make their hands visible outside of the car windows. When backup arrived, the officer ordered the occupants to exit the car one at a time while the officers had their weapons drawn. The officers then handcuffed each occupant. When Officer Lindvall approached the Cadillac, he saw in plain view an empty black holster between the front seats.
Officers searched the area and found two weapons. Across the street in the front yard of 2504 Madison, approximately forty-five feet from the Cadillac, officers found an automatic .380 Smith and Wesson handgun that was not loaded. The Cadillac would have passed this residence and yard before stopping at 2513 Madison. North of the Cadillac and within throwing distance of it, officers found the second gun, a .45 caliber handgun that was loaded. Upon finding these weapons, the officers proceeded to arrest the occupants for discharge of a firearm within city limits and concealment of a deadly weapon. Officer Lindvall testified that these two different handguns could have produced the sounds of two different guns discharging heard before the stop.
ARGUMENTS
The defendant seeks to suppress evidence seized from the car he was driving on September 17, 2002, as well as any statements he allegedly made following the stop and arrest. The defendant contends the officers lacked sufficient articulable facts to justify the investigative detention for the sole reason that he was driving a vehicle in the vicinity of where gunshots had been fired. The defendant argues there is nothing to indicate that the shots had been fired from a vehicle or that the shots could not have been fired from another vehicle. Because the stop was unlawful, the defendant concludes the subsequent search was unlawful along with any statements made following his arrest.
GOVERNING LAW
Consistent with Fourth Amendment principles, an officer "may conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Reasonable suspicion is "a particularized and objective basis" for suspecting the person stopped of criminal activity. United States v. Cortez, 449 U.S. 411, 417-418 (1981). The burden rests with the government to prove the reasonableness of the officer's suspicion. United States v. Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998).
In determining whether a reasonable suspicion existed, the court considers the totality of circumstances. United States v. Sokolow, 490 U.S. 1, 8 (1989). This analytical process entails making a practical determination and reaching "a common sense conclusion" based on "probabilities" and not "hard certainties." United States v. Cortez, 449 U.S. at 418. "A variety of factors may contribute to the formation of an objectively reasonable suspicion of illegal activity." United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998). "The law does not specify a minimum of factors necessary to constitute reasonable suspicion." United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir. 1997) (citation omitted), cert. denied, 523 U.S. 1035 (1998). Instead of closing their eyes to suspicious circumstances, officers may call on their own experience and training to judge facts and even "perceive meaning in actions that appear innocuous to the untrained observer." United States v. Gutierrez-Daniez, 131 F.3d at 942 (citation omitted). On the other hand, "[i]nchoate suspicions and unparticularized hunches . . . do not provide reasonable suspicion." United States v. Salzano, 158 F.3d at 1111 (quotation omitted).
The court agrees with the government that the facts of this case are sufficiently analogous to United States v. Henning, 906 F.2d 1392 (10th Cir. 1990), , cert. denied, 498 U.S. 1069 (1991), modified on other grounds, United States v. Moore, 958 F.2d 310 (10th Cir. 1992), as to treat Henning as controlling authority. In Henning, officers investigating gang activity heard a gunshot approximately 300 to 400 yards away, and moments later they observed a Chevrolet Suburban emerge from the general area of the gunshots. The officers saw the Suburban make "a real quick stop" at the stop sign. "There was no other traffic in the area." Based on those circumstances, the officers pursued the Suburban and stopped it. The Tenth Circuit upheld the initial stop reasoning that "[t]rained law enforcement officers could not reasonably be expected to simply stand by and ignore the potential significance such a fact pattern presents. . . ." 906 F.2d at 1396.
In a more recent unpublished decision, the Tenth Circuit followed Henning under a similar factual setting. United States v. Hicks, 182 F.3d 933, 1999 WL 317531 (10th Cir. May 20, 1999) (Table). Officers were investigating a fight at a bar when they heard a gunshot coming from a nearby apartment complex. They saw people running from the scene and a blue car speeding away from the complex. Seeing no other traffic in the area, the officer pursued and eventually stopped the vehicle. Noting its similarity to Henning, the court upheld the initial stop:
This case presents a remarkably similar fact pattern. Here, Officer Jenkins heard gunshots and observed a blue GM car speed away from the scene, with no other traffic in the parking lot area. Although Jenkins briefly lost sight of the vehicle, he pulled it over moments later in the same general area as the shooting. Under the circumstances, Jenkins had specific and articulable facts which, together with the rational inferences to be drawn therefrom, provided him and the other officers with reasonable suspicion that the occupants of the blue GM had committed or were committing a crime. Accordingly, the officers' initial stop of the vehicle was permissible under the Fourth Amendment.
Id., 1999 WL 317531 at *3. Hicks is significant in that it shows the circuit court does not read Henning as holding that the traffic violations, the "California stop" and speeding, are what justified the initial stop. Thus, the defendant's effort here to distinguish Henning on that basis is not persuasive.
The court is confident that Officer Lindvall has reasonable, articulable suspicion that the white Cadillac was involved with the burst of gunshots heard seconds earlier just a block away. By training and experience, Officer Lindvall opined that the discharge of weapons at 1:00 a.m. is most often associated with criminal activity. This opinion is bolstered by his observation that two different weapons were repeatedly fired. Having just patrolled the area for any activity and having seen none, Officer Lindvall reasonably suspected the involvement of the only vehicle seen leaving the area from where the gunshots were fired. According to Officer Lindvall, he was in a position to have seen any vehicle fleeing this area. Finally, the white Cadillac accelerated quickly through the intersection from which the officer's marked patrol car was apparently visible a block away. These circumstances gave Officer Lindvall specific and articulable facts and rational inferences therefrom upon which to base a reasonable suspicion that the occupants of the white Cadillac had committed or were committing a crime involving the gunshots heard seconds earlier. The initial traffic stop of the white Cadillac was lawful under the Fourth Amendment.
IT IS THEREFORE ORDERED that the defendant Tevon Donjon Stokes's Motion to Suppress (Dk. 22) is denied.