Opinion
Case No. 02-40072-01/02-RDR
August 12, 2003
MEMORANDUM AND ORDER
This case is now before the court upon defendants' motions to suppress and the reports and recommendations regarding those motions to suppress. This order will also address a few other motions filed by defendant DeClerck and some scheduling decisions in this case.
Background
The motions to suppress were filed many months ago when defendants were represented by counsel. Defendant DeClerck was represented by two different appointed counsel before his request to represent himself was granted. Defendant Fluker was represented by three different appointed counsel, each of whom asked to withdraw because of differences with defendant Fluker. Defendant Fluker did not oppose the withdrawal of appointed counsel and was aware that the court would likely find that he had waived his right to appointed counsel if he was unable to cooperate and communicate with his third appointed counsel. Defendant DeClerck has been proceeding pro se since March 7, 2003. Defendant Fluker has been proceeding pro se since May 2, 2003.
The motions to suppress were originally heard by U.S. Magistrate Judge Sebelius. During the first hearing on the motions on March 28, 2003, defendant DeClerck was removed from the courtroom for misconduct. Defendant Fluker was represented by his third appointed counsel but was not on good terms with that counsel. A second hearing was conducted by Judge Sebelius on April 7, 2003 to accommodate defendant DeClerck and permit another opportunity for him to examine the witnesses who appeared at the earlier hearing. Defendant DeClerck was removed from the courtroom because of misconduct on that day as well.
Judge Sebelius produced two reports and recommendations regarding the motions to suppress. The first report and recommendation addressed the motions filed on behalf of defendant Fluker. Neither defendant Fluker nor his counsel filed an objection to the report and recommendation. Upon review, on May 9, 2003 this court adopted the report and recommendation and denied the motions to suppress of defendant Fluker.
On June 17, 2003 this court held a status conference with the defendants in this case. At the hearing, copies of a dispatch tape were played for defendants. At least in part, this led defendants to ask that the record on the suppression motions be reopened. The main issue defendants sought to pursue was whether reasonable cause supported the decision of law enforcement officers to stop the vehicle in which defendants were riding, or whether defendants were illegally stopped because of their race. The court was inclined to accommodate defendants because it appeared that defendants did not participate well in the previous hearings and may not have made the points they wanted to make, even though this was largely their own fault. In addition, the dispatch tape was arguably new evidence available to the defendants.
The court had other hearings with defendants in May and June. There were problems and difficulties during those hearings which are described in orders at Doc. Nos. 139, 140, 161 and 162.
The court announced during the June 17, 2003 hearing that we would probably reopen the record on the suppression motions. We issued an order on June 18, 2003 which confirmed this decision. Doc. No. 176. We referenced this decision again in an order filed June 23, 2003. Doc. No. 180. A notice of hearing was sent to defendants on July 11, 2003 which set the hearing upon the reopened motions for August 5, 2003. The docket sheet indicates that defendant Fluker may have refused to receive copies of some of these orders in the mail as he has done with previous orders sent through the mail. But, the court believes defendant Fluker was aware or should have been aware of the hearing on August 5, 2003. He made no requests of or communications with the court prior to the hearing.
When the hearing started on August 5, 2003, defendant Fluker objected to the court that he was not prepared. He said that he has been in a segregation unit since the June 17th hearing and that he has had inadequate access to legal materials. He said that he had had no contact with his standby counsel, that he did not understand the procedure involved, and that he was not ready to cross-examine witnesses. He blamed his segregated status on an alleged instruction by the U.S. Marshals Office to the CCA facility where he is housed.
The court stated that defendant Fluker had been allowed ample time to prepare and that the hearing would proceed. At that time, defendant told the court emphatically more than once that he wanted to be removed from the courtroom because he was not prepared to go ahead with the hearing. The court permitted defendant to leave the courtroom in the custody of the U.S. Marshals. It should be noted that although we believe defendant's standby counsel was made aware of the hearing, he was not present. Defendant Fluker, however, has shown no desire or inclination to communicate with his standby counsel at past hearings. Nor did he object to the absence of his standby counsel in this hearing or request the opportunity to consult with standby counsel. Therefore, we do not believe the absence of standby counsel had any impact upon defendant Fluker's conduct or decision making at the hearing. We also note that defendant Fluker has already sat through the first suppression hearing conducted by Magistrate Judge Sebelius. He had ample opportunity to follow the proceedings and understand how to conduct himself.
The court indicated that we would consider the previous testimony presented before Magistrate Judge Sebelius and any testimony defendants or the government would like to present at the hearing before making a decision on the motions to suppress. The hearing consisted mainly of testimony from Lawrence Police Department detectives M.T. Brown and R.D. Brown.
Findings of fact
The court shall make the following factual findings. The court makes these findings to supplement those made by Magistrate Judge Sebelius in his reports and recommendations. Nothing which was presented during the August 5, 2003 hearing has persuaded the court that the findings and conclusions of Magistrate Sebelius on the ultimate issues were incorrect or should be modified.
On May 29, 2002 at approximately 3:30 p.m., the Lawrence, Kansas police department received a report of an armed robbery at the Hampton Inn on Sixth Street. The report was that the robbery was perpetrated by a black man with black clothes, wearing a mask and using a handgun. He was last seen running on the west side of the motel building.
The dispatcher alerted units of the Lawrence Police Department of a robbery in progress at the Hampton Inn, 2300 West 6th Street. Lawrence Police Detectives M.T. Brown and R.D. Brown were traveling in an unmarked police car on 15th Street several blocks west and south of the Hampton Inn when they heard the report of the dispatcher. They traveled rapidly north to Sixth Street and then turned east on Sixth Street where they moved at a normal rate of speed and watched for vehicles or persons who might be involved in the robbery. They were informed by the dispatcher that the suspect was a black man — "Code 3" — in the terminology of the dispatcher. As the two detectives were approaching the intersection of Sixth Street and Kasold, they observed a white vehicle coming towards them from the direction of the Hampton Inn. Detective M.T. Brown, who was driving, thought the vehicle looked similar to a vehicle which had been filmed traveling away from the scene of an armed robbery in Baldwin, Kansas a few weeks before. Baldwin is a town a few miles south of Lawrence. Both communities are in Douglas County, Kansas. M.T. Brown had been asked to develop the film by the Douglas County Sheriff's Office. The film was taken as a Douglas County Sheriff's Office unit was driving to the scene of the armed robbery. The camera was probably activated when the emergency lights on the car were engaged. After M.T. Brown made a still photograph of the vehicle from the film he was given, he circulated copies of the photograph to members of his department.
Although the vehicle was suspected to be involved in the Baldwin robbery, the Douglas County authorities were unable to apprehend the vehicle. Detective Brown was aware of that robbery and of another armed robbery in Baldwin in recent weeks, and that a black male or two black males were suspects in those robberies. But, he did not investigate either robbery.
When Detective Brown recognized the approaching white vehicle as similar to the vehicle in the photograph he developed, he told R.D. Brown that if the vehicle contained a black male, he would attempt to stop the vehicle. As the detectives' car and the white vehicle passed each other at the intersection of Sixth Street and Kasold, Detective M.T. Brown looked at the persons inside the white vehicle and thought they appeared startled and as if they somehow knew that the detectives were police officers who suspected them of a crime.
The detectives turned around in the intersection, activated their lights and siren, and followed the white vehicle west on Sixth Street. They observed the passenger in the car moving around and ducking down. The car slowed down and then accelerated. It turned north off Sixth Street, moved into a residential area and turned left into a cul-de-sac.
The vehicle reached the end of the cul-de-sac and turned around, facing the detectives' car. According to the detectives, the vehicle then moved toward them as if it was going to ram their car. This is mentioned on the dispatch tape. Eventually, the detectives moved their car, rammed the white vehicle and blocked it's exit from the cul-de-sac. The detectives left their car and placed the driver of the white vehicle at gunpoint. The driver was ordered from the white vehicle. About that time the detectives noticed that the passenger was not in the vehicle and must have left on foot.
Defendant Fluker was the driver. Defendant DeClerck was the passenger. They are African-American. DeClerck was apprehended a short distance away near a supermarket. Items allegedly connected to the robbery were found in the white vehicle and near the spot where defendant DeClerck was apprehended. Firearms were found along the path thought to be taken by DeClerck after he exited the white vehicle.
During the August 5, 2003 hearing, defendant DeClerck's examination of Detective M.T. Brown produced the following pertinent testimony. The dates of the two armed robberies in Baldwin were April 26, 2002 and May 2, 2002. However, the date shown on the film taken of the vehicle allegedly leaving the scene of one of the robberies was April 25, 2002. The time listed on the film was 21:31:49. According to the police report of the April 26 robbery, the time the offense ended was 21:55. The police report of the May 2 robbery listed the time the offense ended as 21:32. Detective M.T. Brown stated that in his experience in working with such videotapes, the time and date listed are inaccurate over half the time.
The police reports of the Baldwin robberies do not list a description of a suspect vehicle. Nor was there a vehicle description given by the dispatcher when the Hampton Inn robbery was announced. Detective M.T. Brown stated that he would not have stopped the white vehicle in this case had it been occupied by white persons instead of black persons.
The dispatch tape of the calls relating to the Hampton Inn robbery indicates that one police officer stated, "We have location of subject," before the dispatcher announced the race of the suspect. Neither M.T. Brown nor R.D. Brown made this statement. Whoever the "subject" was, it was not either defendant.
Conclusions of law
The court concurs with Judge Sebelius' review of the law in his report and recommendation upon defendant Fluker's motions and defendant DeClerck's motions. Doc. Nos. 126 and 153. The court must determine whether as judged by an objective view of the totality of the circumstances and information available to the officers there was a reasonable suspicion that defendants had engaged in some wrongdoing. See U.S. v. Lang, 81 F.3d 955, 965 (10th Cir. 1996). A reasonable suspicion must be something more than an "unparticularized suspicion or hunch." Terry v. Ohio, 392 U.S. 1, 27 (1968).
In this instance, the two detectives saw defendants approaching at a time and location consistent with participation in the Hampton Inn robbery. Defendants' race was consistent with the dispatch report of the Hampton Inn robbery. Although defendant DeClerck suggests that the police found a "location of subject" prior to the report of the race of the suspect, we are convinced that this statement was not made by either detective. They said they did not make this statement. This is credible to the court. Moreover, it is undisputed that they saw two persons in the vehicle in which defendants were riding, not a "subject." The detectives testified that they heard the race of the suspect in the Hampton Inn robbery before they saw the white vehicle. They had further reason to suspect the white vehicle because it resembled a vehicle which they had been told was seen driving away from an armed robbery in nearby Baldwin. They knew that there had been two armed robberies in Baldwin close together in time, and that those robberies were committed by one or two black males. The look on the faces of the defendants as the detectives passed also led to suspicion. See U.S. v. Soto-Cervantes, 138 F.3d 1319, 1324 (10th Cir.) cert. denied, 525 U.S. 853 (1998) (nervousness is a factor to consider as part of totality of circumstances). Finally, defendants did not stop as they were being pursued with lights and siren and then tried to ram the officers' vehicle. "[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion." Illinois v. Wardlow, 528 U.S. 119, 124 (2000). "Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." Id.
All of these circumstances, we believe, provided a reasonable suspicion of wrongdoing which justified the stop and seizure of defendants. Cf., U.S. v. Jensen, 2002 WL 1056979 (10th Cir. 2002) (investigatory stop supported by defendant driving in high crime neighborhood, approaching drug and gang flophouse, then fleeing upon spotting police officers and displaying "deer in the headlights" reaction upon seeing police). Here defendants were driving in a neighborhood where a crime had just occurred. They fled from the police. The look on their faces suggested culpability or knowledge of wrongdoing. Their race matched the race of the perpetrator of the robbery at the Hampton Inn. This amounted to reasonable suspicion that the defendants had committed a crime. The discrepancy regarding the date on the photo of the car allegedly leaving the scene of a robbery in Baldwin does not erase the reasonable suspicion in this instance. The testimony is that these dates are often mistaken. Moreover, the significant point is that the detectives' attention was drawn to the car because of a legitimate belief that a similar car may have been involved in local armed robberies. Many other factors compiled to create a reasonable suspicion of wrongdoing.
The detectives were entitled to consider the race of the defendants because the dispatcher reported that the perpetrator of the Hampton Inn robbery was a black man. Race alone is an insufficient basis for an investigative stop. U.S. v. Brignoni-Ponce, 422 U.S. 873, 885-86 (1975). But, race is a relevant factor in this context where there is a parallel between the race of the reported perpetrator and the race of the suspect being stopped, as well as several other factors promoting a reasonable suspicion of wrongdoing. See U.S. v. Kim, 25 F.3d 1426, 1431 n. 3 (9th Cir.) cert. denied, 513 U.S. 1030 (1994).
For these reasons, the court shall again adopt the reports and recommendations of Magistrate Judge Sebelius as to the motions to suppress filed on behalf of defendant Fluker. The court shall also adopt the report and recommendation of Magistrate Judge Sebelius dated May 30, 2003 as to the motions to suppress filed on behalf of defendant DeClerck. The court specifically rejects the racial profiling arguments of defendant DeClerck, as well as any other contentions made by defendant DeClerck in his written objections filed June 10, 2003 and his oral objections made on August 5, 2003.
In making this ruling, the court acknowledges that defendant DeClerck has asked for the opportunity to subpoena additional witnesses and to conduct further investigation in this matter. However, defendant has failed to demonstrate that additional witnesses or investigation would possibly unearth competent evidence which would support the defense in this case. Witness subpoenas are to be issued on the condition that a witness' testimony is necessary to the defense. U.S. v. Hernandez-Urista, 9 F.3d 82, 84 (10th Cir. 1993). They are not to be issued as a discovery device or fishing expedition. See U.S. v. Nixon, 418 U.S. 683, 699-900 (1974). The court has no logical or reasonable grounds to issue further subpoenas to witnesses on the issues raised by the motions to suppress. Defendant DeClerck does not offer grounds to believe the subpoenas would lead to relevant testimony necessary to his defense. He only suggests that the subpoenas are necessary to learn whether the witnesses have relevant testimony necessary to the defense. Therefore, the court shall deny defendant DeClerck's request for additional subpoenas or an additional hearing.
Defendant DeClerck has recently filed some other motions which the court shall decide at this time.
Motion to destroy records
Defendant DeClerck asks the court to direct that the government destroy the evidence against him when the case is concluded. Defendant has filed this motion because he fears that the government will continue to act against him after this case is concluded.
As a normal matter, evidence in a case usually is destroyed some time after the time for appeal has expired. The court usually gives the parties the opportunity to reclaim exhibits and destroys the exhibits if they are not reclaimed.
The court is not inclined to make an order of the kind proposed by defendant when no grounds are shown to believe that the government will act improperly against defendant once this case is concluded. Therefore, the court will not make an order at this time to destroy the evidence when this case is concluded.
Motion to rejoin the trials in this case
The trials in this case have been severed. Defendant DeClerck has filed a motion to rejoin the trials. Severance is usually considered a protection for the defendants in a multi-defendant case. We see no good reason to rejoin the trials. Indeed, the post-arrest statements by defendants offer a sound basis for separating the trials. Therefore, the motion to rejoin shall be denied.
Motion to prevent retaliation or malicious prosecution based upon defendant's exercising his constitutional rights
Obviously, the court shall oppose any retaliation or malicious prosecution. But, in the absence of any evidence of a threat of retaliation or malicious prosecution, the court does not believe it is necessary to enter the requested order. This motion shall be denied.
Scheduling
On its own motion, the court shall continue the trial of defendant Fluker to September 15, 2003. The court shall continue the trial of defendant DeClerck to September 18, 2003. The court shall conduct a hearing on August 20, 2003 at 9:30 a.m. to further address the issues raised by defendant Fluker regarding his conditions of confinement.
Conclusion
In conclusion, the reports and recommendations of Magistrate Judge Sebelius are adopted as to each defendant, and the motions to suppress and racial profiling arguments of each defendant are denied. Defendant DeClerck's motions to destroy evidence, to rejoin the trials, and to prevent retaliation or malicious prosecution shall be denied consistent with this order. The trial of defendant Fluker's case shall be continued to September 15, 2003. The trial of defendant DeClerck's case shall be continued to September 18, 2003. The court will also conduct a hearing regarding defendant Fluker's allegations pertaining to his conditions of confinement on August 20, 2003 at 9:30 a.m.
IT IS SO ORDERED .