Opinion
No. 02-40121-01-SAC
January 31, 2003.
MEMORANDUM AND ORDER
This case comes before the court on the defendant Gregory Lee Dilley's Motion to Suppress (Dk. 17). The government has filed its response in opposition. (Dk. 20). On January 7, 2003, at 11:00 a.m., 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 two-count indictment against the defendant Gregory Lee Dilley that charges him in count one with felony possession of a firearm on April 6, 2002, in violation of 18 U.S.C. § 922(g)(1) and in count two with unlawful possession of a firearm on April 6, 2002, after a previous misdemeanor conviction of domestic violence in violation of 18 U.S.C. § 922(g)(9).
MOTION TO SUPPRESS
Facts
During the early morning hours of Saturday, April 6, 2002, Officer Lewis Kliem with the Topeka Police Department was parked in the 700 block of S.W. Polk observing traffic. Officer Kliem testified that this area is known for its high incidence of narcotic activity and that within a one block area there were at least three to five houses believed to be involved with crack cocaine distribution. Around 1:24 a.m., Kliem observed two cars going east on Seventh Street, and he heard a very loud bass sound coming from the front car. By training and experience, Officer Kliem was familiar with the municipal noise ordinance and concluded that the front car was violating this ordinance.As he pulled in behind the two cars, Officer Kliem immediately noticed that the cars appeared to be traveling in tandem. The second car was traveling unusually close behind the first car, probably "seven to ten feet off the rear bumper." The cars were going at the same speeds, making the same turns, proceeding along the same route. From his training and experience in working as a narcotics investigator, Officer Kliem knew that cars traveling in a caravan are used frequently to transport large quantities of cash or narcotics. Caravans serve as protection from rival drug dealers and as a diversion in the event of police intervention. Officer Kliem testified that if an officer tries to pull over the cars then they speed off in different directions.
Officer Kliem followed the cars as they made left turns onto Tyler and stopped at the intersection with Sixth Street. He observed the second car go through this intersection and speed up to maintain the close following distance to the first car. Officer Kliem concluded that the cars were traveling together and further suspected that the cars could be a drug caravan considering the time of night and the location. Based on the traffic violation being committed by the first car, Officer Kliem decided to pull it over and investigate also the possibility of a drug caravan. He radioed his backup unit that he was going to stop the vehicle.
After crossing Sixth Street, the cars made a left turn into a narrow east-west alley that was not frequently used and not the most direct route to any place nearby. Believing the cars were trying to evade him, Officer Kliem quickly turned down the alley but did not see either car. He then looked right and saw the taillights of the second car that had pulled over to the side of the west alley of Tyler Street. He then saw the first car had parked twenty feet farther north in an apartment complex parking lot. The first car, however, was not occupied, and Officer Kliem believed the driver must have taken off running to avoid the officer so he parked behind the second car and began running between the houses. As he was running, Officer Kliem observed two other patrol cars coming down the alley from the north. At no point during this event had Officer Kliem activated his emergency lights or signaled for either car to pull over. Officer Kliem testified there were two houses in the immediate vicinity, and one of them was not more than seventy-five feet from the second parked car, that had been identified as active drug trafficking locations.
Officer William Thompson was driving one of the southbound patrol cars. He heard Officer Kliem ask him to watch the cars while Kliem pursued a suspect. Officer Thompson approached the second vehicle and asked the driver for his license which identified him as Gregory Dilley. Thompson asked Dilley if the listed address was correct, and Dilley said he had moved recently. Requesting next proof of insurance and registration, Officer Thompson watched as Dilley instead of leaning towards the glove box moved closer to the steering wheel and reach across to the glove box. Dilley's unusual motion made Thompson nervous, and the officer changed positions to keep better watch of Dilley's hands. Once Dilley opened the glove box, Thompson observed the butt of a handgun sticking out of it. Dilly grabbed the registration and quickly shut the glove box. Officer Thompson took the registration handed to him and asked the defendant to step outside of the car. Having seen the firearm and concerned about his safety, Officer Thompson patted down the defendant and handcuffed him. Thompson then looked at the seat in which Dilley had been sitting and saw a live round of 22 caliber ammunition. Officer Thompson then entered the car and found a 22 caliber handgun located in the glove box. Officer Thompson testified that carrying a concealed weapon in a vehicle with ammunition that is immediately accessible violates a Topeka ordinance.
Arguments
The defendant seeks to suppress evidence seized from the car arguing that the officers unlawfully stopped and detained him. The defendant denies that the officers had reasonable suspicion for the initial stop and asserts that while he was illegally detained the officers saw the firearm in the glove box. The government argues that the officers had probable cause to stop the first vehicle for a local noise ordinance violation and also had reasonable suspicion to believe the vehicles were traveling in tandem and were involved in illegal narcotic trafficking.
Governing Law
The Fourth Amendment protects individuals from unreasonable searches and seizures. See U.S. Const. amend IV. 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). When the officer has stopped a person based on reasonable suspicion of criminal activity, the officer may briefly detain the individual "in order to determine his identity or to maintain the status quo momentarily while obtaining more information." Adams v. Williams, 407 U.S. 143, 146 (1972).
Analysis and Holding
While Officer Kliem did not activate his emergency lights and pull over the cars, his patrol car and Officer Thompson's patrol car were parked purposely to block the defendant's car in the alley and to prevent him from driving away from the scene. The facts support the defendant's position that he was detained at this point and that a reasonable person would believe he was not free to leave particularly when Officer Thompson approached and asked to see his driver's license. The issue before the court is whether the officers had reasonable, articulable suspicion to believe that criminal activity was afoot and that the defendant was involved in it.
Based on the totality of the circumstances, the court finds that Officer Kliem had reasonable suspicion to detain the defendant to investigate whether he was involved in narcotic activity. The cars were traveling in tandem and late at night. By training and experience, Officer Kliem recognized that cars involved in drug trafficking will travel in caravans for protection and diversion purposes. It is appropriate for an officer to call upon his training and experience to find meaning in actions or behavior that an untrained observer might otherwise consider insignificant. United States v. Guiterrez-Daniez, 131 F.3d at 942. The cars were traveling together in an area known for a high incidence of drug activity and drug houses. That a stop occurs "in a `high crime area'" [is] among the relevant contextual considerations in a Terry analysis." Illinois v. Wardlow, 528 U.S. at 124. Officer Kliem began following the cars upon determining that the first car was in violation of a municipal noise ordinance. After the marked patrol car had followed them for several blocks, the cars made some turns down narrow and infrequently traveled alleys consistent with an intention to evade the officer. "[E]vasive behavior is a pertinent factor in determining reasonable suspicion." Id. (citations omitted). When Officer Kliem quickly caught up with the cars in the last alley, he found that the driver of the first driver had already fled on foot. The unprovoked flight of the first driver is "the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." Id. Because the cars were traveling together, the flight of the first driver is a relevant consideration. Because the defendant parked his car in the path of the patrol car, Officer Kliem had further cause for suspecting that this was a narcotics caravan and that the second car was a diversion for the first car and it's fleeing driver. The court is satisfied that Officer Kliem's judgments and inferences were grounded in commonsense and experience and that he was justified in suspecting Dilley of being involved in criminal activity and in having him detained for further investigation.
The reasonableness of an investigative detention is a dual inquiry: (1) "whether the officer's action was justified at its inception," and (2) whether the officer's action "was reasonably related in scope to the circumstances that first justified the interference." United States v. Burch, 153 F.3d 1140, 1141 (10th Cir. 1998) (quotation omitted). Officer Thompson's actions in asking for identification, proof of insurance and registration are reasonably related to the circumstances justifying the detention. Thus, the investigative detention of the defendant was not unreasonable; Officer Thompson did not observe the firearm during an illegal detention; and the seized firearm is not the fruit of an illegal detention.
IT IS THEREFORE ORDERED that the defendant Gregory Lee Dilley's Motion to Suppress (Dk. 17) is denied.