Opinion
Case No. 02-40152-01-JAR
February 10, 2004
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
This matter comes before the Court on the Defendant's Motion to Suppress Evidence (Doc. 17). The Court held an evidentiary hearing on January 12, 2004, and took the Motion under advisement. After due consideration of the parties' filings and the admitted evidence, the Court is now prepared to rule. For the reasons set forth below, the Motion is denied.
Factual Background
On September 9, 2002, around 9:50 p.m., Lieutenant Joe Garman of the Salina Police Department and Investigator Steve Garman of the Saline County Sheriff's Office went to the home of Michelle Boese located at 824 Sherman Avenue in Salina, Kansas. Ms. Boese is the common law wife of the Defendant. The officers were looking for the Defendant to execute an outstanding felony arrest warrant for possession with the intent to distribute cocaine and methamphetamine. Although the Defendant did not live at the 824 Sherman address, he did occasionally visit the home.
Both Lt. Garman and Inv. Garman were dressed in plain clothes and both were carrying weapons. Lt. Garman's gun was holstered in the small of his back under a jacket. Inv. Garman carried his weapon on his hip. Lt. Garman testified that the officers never wore their weapons exposed, particularly in public because they do not want their guns seen. Ms. Boese allowed the officers inside her residence and shortly thereafter the telephone rang. The officers overheard Ms. Boese and the Defendant arguing and determined that the Defendant was going to come to the residence. Within seconds after Ms. Boese's phone conversation with the Defendant ended, the officers heard a knock at the door.
Lt. Garman and Inv. Garman testified that their weapons remained holstered while they were inside Ms. Boese's residence. Ms. Boese testified, however, that Lt. Garman's weapon was exposed, not hidden behind his jacket in the small of his back as he had testified. Ms. Boese also contended that the officers drew their weapons after her phone call with the Defendant ended. According to Ms. Boese, the officers' weapons "were basically pointed at her head" because she was standing at the door and the officers were aiming at the door.
Irregardless of whether the officers' weapons were drawn or holstered at the time the Defendant knocked on the door, Ms. Boese did open the door to her residence and the Defendant started to enter. The Defendant saw the officers and looked shocked and surprised. Lt. Garman had previously had contact with the Defendant on two or three occasions. Within seconds of entering the residence, the Defendant bolted and began running south on Sherman Street. Lt. Garman yelled "police, stop!" several times, but the Defendant continued to flee. Ms. Boese testified that the officers were chasing the Defendant with their guns drawn. Lt. Garman testified that both his weapon and Inv. Garman's weapon remained holstered during the chase and that to draw their guns during a foot chase would be against their training. Inv. Garman first reached the Defendant about three-fourths of a block from Ms. Boese's residence. The Defendant attempted to kick Inv. Garman and had to be physically placed in handcuffs by both officers. Lt. Garman advised the Defendant that he was being arrested on the active warrant.
Lt. Garman requested back-up to assist with the transport of the Defendant. Officers Lane Mangles and Ryan Smith arrived, and Officer Mangles searched the Defendant incident to his arrest. Officer Mangles found $662.00 in U.S. currency in the Defendant's front pants pocket. In the Defendant's right, front watch pocket, Officer Mangles found three clear plastic baggies containing what was later determined to be methamphetamine. Officer Mangles also found a set of keys in the Defendant's left front pants pocket with a yellow tag. The yellow tag identified a vehicle as a black, 1989, four-door Ford Taurus. Officer Mangles gave the keys with the yellow tag to Inv. Garman, who had been present during the search of the Defendant. Inv. Garman testified and his report indicated that the keys were found in the Defendant's pants pocket. Lt. Garman also testified that the keys were found on the Defendant's person.
Ms. Boese theorized that the keys to the 1989 Ford Taurus were not found in the Defendant's pants pocket, but rather on the ground where the Defendant had dropped them as he was attempting to flee. Ms. Boese's testimony is based on her seeing Lt. Garman and Inv. Garman backtracking the route the Defendant had taken with flashlights. While the officers were backtracking, Ms. Boese saw Lt. Garman bend down and pick up something near a tree at the corner of Sherman and Franklin Streets. Ms. Boese testified she could not see what, if anything, Lt. Garman retrieved. According to Ms. Boese, Lt. Garman then walked directly toward her and showed her the keys.
Lt. Garman testified that he did go back to the Sherman residence to speak with Ms. Boese. However, he denied having the keys in his possession at that time. According to Lt. Garman, Inv. Garman had the car keys when Lt. Garman returned to the residence. Lt. Garman testified that he did not even ask Ms. Boese about the keys. Furthermore, Lt. Garman denied searching the ground with a flashlight.
Officers did locate a black 1989 Ford Taurus, as identified by the yellow tag on the keys, in the 800 block of Sherman Street, on the east side of the road, facing northward. Officers viewed a suitcase, a computer system and baskets of clothing in the interior of the vehicle. Lt. Garman requested the vehicle be impounded as an abandoned vehicle because the Defendant had been arrested. Additionally, Lt. Garman sought to impound the vehicle until he could get a search warrant to search for drugs, based on finding drugs on the Defendant's person. Lt. Garman was not impounding the car based on city ordinances regarding nuisance and abandoned vehicles. According to Lt. Garman, the Salina Police Department routinely impounds cars so that they can be fully searched at the Department's garage to ensure safety for the officers conducting the search and to better secure the contents of the vehicles.
On September 10, 2002, Judge Boyer of Saline County issued a search warrant for the vehicle. During the search of the vehicle, officers found a loaded Russian made 7.62 millimeter handgun with the hammer cocked and the safety off, methamphetamine, a fully-automatic Sten gun without any serial number, numerous pages of "owe sheets," and a digital scale.
Discussion
The Defendant argues that the evidence seized from the 1989 Ford Taurus must be suppressed because 1) the vehicle was illegally seized and 2) the search warrant affidavit did not provide a basis upon which an independent magistrate could find probable cause to believe the vehicle contained contraband. The government responds that the impoundment was lawful because there was reason to believe the Defendant's vehicle contained contraband or had been used in the commission of a crime, making its retention as evidence necessary. Alternatively, the government suggests the vehicle was rendered abandoned by way of the Defendant's arrest, making the impoundment lawful. Finally, the government insists that the search warrant affidavit was more than adequate as a matter of law.
A. Vehicle Impoundment
The validity of an impoundment is judged under Fourth Amendment reasonableness standards. Generally, there are two sources of authority for the warrantless impoundment of stopped, parked or abandoned vehicles; a vehicle may be impounded pursuant to specific state or local motor vehicle laws, or pursuant to the general interest in public safety, also known as the "community caretaking functions" of police officers. In other words, if a car is not impounded pursuant to an ordinance or statute, the police may still take lawful custody of a vehicle when there are "reasonable grounds" for impoundment. The Kansas Supreme Court has provided examples of situations that give rise to reasonable grounds for impoundment. Among those reasonable grounds are the necessity for removing, "[1] a car that has been stolen or used in the commission of a crime when its retention as evidence is necessary; [or] [2] an abandoned car." Police may also impound a vehicle when they have probable cause to believe a vehicle contains evidence.
United States v. Logan, 241 F. Supp.2d 1164, 1180 (D. Kan. 2002).
South Dakota v. Opperman, 428 U.S. 364, 369 (1976); United States v. Hannum, No. 02-3328, 2003 WL 220514, at *2 (Jan. 31, 2003)
State v. Teeter, 819 P.2d 651, 653 (Kan. 1991).
Id. at 654.
United States v. Logan, 241 F. Supp.2d 1164, 1180 (D. Kan. 2002).
The Defendant argues that "the owner or occupant of a vehicle who has been taken into custody must be allowed to make arrangements for its disposition." To support his argument, the Defendant directs the Court to State v. Fortune. The Fortune court held:
689 P.2d 1196 (Kan. 1984).
If the owner, operator or person in charge of the vehicle is readily available to make a determination as to the disposition of the vehicle then he may do so. If the person responsible for the vehicle desires that the vehicle be left lawfully parked upon the streets or that it be turned over to some other person's custody, then, absent some other lawful reason for impounding the vehicle, his or her wishes must be followed.
Id. at 1203 (emphasis added).
The Defendant argues that because neither he, nor the owner of the car were allowed to make arrangements for the car's disposition, and because there was no lawful reason for impounding the car, the impoundment was wrongful.
The Court finds that there were reasonable grounds for impounding the car, making the impoundment lawful. First, officers found methamphetamine and a large sum of cash on the Defendant's person and were serving a warrant on the Defendant for possession with the intent to distribute cocaine and methamphetamine. The Court also finds credible the testimony of Lt. Garman, Inv. Garman and Officer Mangles that the keys to the vehicle were found on the Defendant's person and were identified with a yellow tag describing the car subsequently impounded. Lt. Garman testified that he believed the car contained drugs because drugs were found in the Defendant's pockets. Under these circumstances, the Court finds that it was reasonable to believe that the Defendant's car contained controlled substances, or that the vehicle was "used in the commission of a crime [and] its retention as evidence [was] necessary."
The Court disregards Ms. Boese's testimony that Lt. Garman actually found the keys on the ground, rather than on the Defendant's person. Although Ms. Boese testified that she saw Lt. Garman pick something up at the intersection of Sherman and Fairview, she admitted she did not see what Lt. Garman retrieved, if anything. Ms. Boese testified that Lt. Garman walked over to her and showed her the keys, but Lt. Garman testified that he did not even have the keys in his possession. Indeed, both Inv. Garman and Officer Mangles testified that Inv. Garman, not Lt. Garman, had the keys.
Ms. Boese's testimony regarding other matters was also incredible. She testified that Lt. Garman was wearing his weapon on his hip in plain view, while Lt. Garman testified that he had always worn his weapon concealed in the small of his back. Ms. Boese testified that Lt. Garman and Inv. Garman had their weapons drawn pointed at her head and that the officers chased the Defendant with their weapons drawn. The officers flatly denied drawing their weapons and Lt. Garman testified that it was against policy to chase a suspect on foot with a weapon drawn. The inconsistencies in Ms. Boese's testimony, coupled with the fact that, she admittedly did not see Lt. Garman pick up anything, causes the Court to disregard the Defendant's theory that Lt. Garman found the keys on the ground, in favor of the officers' consistent, credible testimony.
The Court further finds that the impoundment of the vehicle was lawful because the car was an abandoned car upon the Defendant's arrest. The officers believed that the vehicle would become an unattended-to car, whose driver was incapable of moving it due to his impending incarceration. The Defendant did not live in the 800 Sherman neighborhood. Lt. Garman also testified that he wanted to impound the car to better protect the contents. The car contained in plain view a computer system and suitcases. Thus, upon the Defendant's arrest, the car became an abandoned vehicle in a foreign neighborhood, and its valuable contents were susceptible to theft or vandalism.
The Tenth Circuit's decision in United States v. Andas-Gallardo is highly analogous. In Andas-Gallardo, the defendant was arrested after fleeing from police, leaving his car in a parking lot and attempting to enter a store a short distance away. Police officers found keys to the car on the defendant's person and impounded the car pursuant to the community caretaking function, notwithstanding that the defendant inquired about having someone come to take custody of the vehicle. The court found the impoundment reasonable, stating "we think it relevant that the vehicle was not parked on [the defendant's] property, and the officers had every reason to believe that he would not be returning anytime soon to . . . [the parking] lot to care for it himself, and that to have left the vehicle in . . . the parking lot — a lot open to the public — could have subjected it to vandalism or theft." Here, as well, the car was not parked on the Defendant's property and the police knew that the Defendant would not be back to care for the vehicle; the Defendant was on his way to jail. Importantly, the Defendant never inquired about his car at the time of his arrest. Based upon these facts, as in Andas-Gallardo, it was reasonable for the officers to consider the car abandoned and impound it to protect the contents.
3 Fed Appx. 959, 963, 2001 WL 185142, at *3 (10th Cir. Feb. 26, 2001).
Id. at 961; 2001 WL 185142 at *1.
Id. at 962; 2001 WL 185142 at *2.
The Defendant points to Salina city ordinance section 38-43, which governs the impoundment and removal of nuisance vehicles. The statute defines a nuisance vehicle as one continuously parked for twenty-four hours in one location and requires that certain alternatives, such as placing a notice on the car's windshield or attempting to contact the owner, be attempted before impounding the car. Defendant claims that because the car had not been in one place for twenty-four hours, it was not a nuisance vehicle and could not be towed. Lt. Garman testified that he understood the ordinance to apply when people telephone and complain about vehicles and that he believed the impoundment was in accordance with the ordinance. The Defendant provided no guidance as to when the Salina ordinance applies. Because the Court finds Lt. Garman credible, it assumes the ordinance does not apply to the vehicle in this case. Even assuming arguendo, the ordinance applies, the police had alternative lawful grounds for impoundment based on the suspicion that the car contained contraband and the community caretaking function of protecting the vehicle and its contents from theft and vandalism.
The Defendant moves to suppress the items found in the 1989 Ford Taurus as the fruit of the poisonous tree. However, once a vehicle is lawfully impounded, law enforcement officers may conduct an inventory search undertaken in good faith pursuant to standard police procedures. Because the impoundment was lawful and the Defendant does not contest the inventory search procedures, Defendant's motion to suppress based on an illegal vehicle seizure fails.
Opperman, 428 U.S. at 372, 376.
B. Search Warrant Affidavit
Defendant also insists that the search warrant affidavit for the 1989 Ford Taurus was totally lacking in probable cause to support the issuance of the warrant by Judge Boyer. Reviewing courts give "great deference" to the issuing magistrate's determination of probable cause. The court's duty is to ensure that the issuing magistrate had a "substantial basis" for concluding that the affidavit in support of the search warrant established probable cause. "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." The test is whether the facts presented in the affidavit would "warrant a man of reasonable caution" to believe that evidence of a crime will be found at the place to be searched. Thus, only a probability and not a prima facie showing is the standard of probable cause.
United States v. Finnigin, 113 F.3d 1182, 1185 (10th Cir. 1997).
United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir. 1999) (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)).
Id. at 1182.
Id. at 1182 (citing Texas v. Brown, 460 U.S. 730, 742 (1983)).
Id. at 1182 (citing Gates, 462 U.S. at 235).
The Court finds the search warrant affidavit sets forth sufficient facts that "warrant a man of reasonable caution" to believe that there was a fair probability that contraband would be found in the Defendant's vehicle. The search warrant affidavit references the Defendant's arrest on April 26, 2002, in which the police seized over sixty-nine grams of methamphetamine from the Defendant's person, and a large sum of cash, owe sheets and syringes from the Defendant's vehicle. Additionally, the affidavit references the Defendant's arrest on July 31, 2002. At that time, over sixty-six grams of cocaine and methamphetamine, a large sum of cash, owe sheets and syringes were found in his vehicle. The affidavit also references the events of September 9, 2002, already recounted in detail above, including that the keys to the 1989 Ford Taurus were found on the Defendant's person.
The Defendant argues that the affidavit lacked probable cause because "the defense investigation casts doubt" on whether the keys to the 1989 Ford Taurus were actually found in the Defendant's pants pocket. The Court has already determined that the keys were found in Defendant's pocket, based on the credible testimony of Lt. Garman, Inv. Garman and Officer Mangles. Even assuming that the keys were found on the ground and that this fact alone destroyed probable cause, the executing officers acted in good faith and with reasonable reliance on the warrant, bringing them within the good faith exception of United States v. Leon. Moreover, because the impoundment was lawful, the officers would have been permitted to conduct an inventory search without a warrant. Here the officers exceeded the requirements of the Fourth Amendment and sought a warrant.
468 U.S. 897 (1984); United States v. Morgan, 911 F. Supp. 1340, 1346 (D. Kan. 1995).
Opperman, 428 U.S. at 372, 376.
IT IS THEREFORE ORDERED BY THE COURT that the Defendant's Motion to Suppress Evidence (Doc. 17) is DENIED.