Opinion
No. 04-40045-01/02-SAC.
October 14, 2004
MEMORANDUM AND ORDER
The case comes before the court on the defendants' joint motion (Dk. 53) to have the court reconsider its order (Dk. 51) that, inter alia, denied their initial motions to suppress (Dks. 21 and 23). The government has responded opposing this motion. (Dk. 54). Though the defendants offer no new arguments, citations or evidence in support of their motion and only rehash what was submitted in one or more of their briefs and/or advanced at the hearing, the court will address several points about which the defendants are most adamant in arguing for reconsideration.
The defendants dispute that the particular holding for which they cite United States v. McSwain, 29 F.3d 558 (10th Cir. 1994), is "narrow and tightly bound to its facts," as this court observed in its memorandum and order (Dk. 51) filed September 9, 2004. The defendants insist the Tenth Circuit has not taken this view of its holding in McSwain and cite United States v. Pina-Aboite, 2004 WL 1814192 (10th Cir. Aug. 16, 2004), the dissenting opinion in United States v. DeGrasso, 369 F.3d 1139 (10th Cir. 2004), and Gross v. Pirtle, 245 F.3d 1151 (10th Cir. 2001), as support for the position that this court was wrong in its characterization of McSwain.
What the defendants have glossed over, but the courts have not, is that " the sole purpose" of the traffic stop in McSwain was to check "the validity of the vehicle's temporary registration sticker." 29 F.3d at 561 (emphasis added). Thus, whatever reasonable suspicion the trooper in McSwain had in making the traffic stop was "completely dispelled" after he visibly confirmed the validity of the registration sticker, and the trooper lacked any continuing reasonable suspicion of a traffic violation. Id. at 561-62. In its prior order, the court cited decisions from the Tenth Circuit and from this court which distinguished McSwain on the fact that the officers in those cases continued to have reasonable suspicion of a traffic violation. Courts outside this circuit have distinguished McSwain on the same basis. See, e.g., United States v. Dumas, 94 F.3d 286, 290 (7th Cir. 1996), cert. denied, 520 U.S. 1105 (1997); United States v. Zucco, 71 F.3d 188, 191 n. 10 (5th Cir. 1995), cert. denied, 519 U.S. 827 (1996); United States v. White, 1999 WL 1939263 at *4 (M.D.N.C.), aff'd, 201 F.3d 439 (4th Cir. 1999) (Table); State v. Harris, 702 N.E.2d 722, 727 n. 5 (Ind.App. 1998); State v. Goins, 84 P.3d 767, 769-70 (Okla.Crim.App. 2004). That the Tenth Circuit, other federal courts and state courts have distinguished McSwain on its facts certainly indicates the applicability of this particular holding in McSwain depends significantly on a factual similarity, namely, that detention continues after the officer's sole reasonable suspicion for conducting the traffic stop is completely dispelled. The defendants offer no persuasive authority for extending this holding in McSwain beyond this factual setting circumscribed by the Tenth Circuit in subsequent decisions.
In United States v. DeGasso, 369 F.3d 1139, 1149 (10th Cir. 2004), the court observed:
"This case is thus easily distinguishable from United States v. McSwain, 29 F.3d 558 (10th Cir. 1994), on which the dissenting opinion relies. In McSwain, the traffic stop was made in order to determine whether a temporary registration sticker was valid; there was no requirement that it be visible or unobscured."
In United States v. Poke, 81 Fed. Apx. 712, 714-15, 2003 WL 22701661 (10th Cir. Nov. 17, 2003), the court wrote:
"We agree with the government, however, that McSwain does not control the outcome of this case.
. . . .
This case involves the situation not present in McSwain. Kansas law requires that all vehicle registrations be "clearly visible" and "clearly legible." Kan. Stat. Ann. § 8-133. . . . Officer Epperly could not see the Expedition's temporary tag as it traveled along the interstate. We therefore reject Poke's argument and conclude that Officer Epperly properly detained Poke because he continued have an objectively reasonable suspicion that a traffic violation was occurring, albeit not the violation for which he initially stopped the Expedition.
Similar language distinguishing McSwain on its facts could be extracted from the federal district court opinions cited in this court's prior order.
For the record, the court had printed, read and considered the applicability of United States v. Pina-Aboite, 2004 WL 1814192 (10th Cir. Aug. 16, 2004), before counsel for the defendant Con graciously furnished the court with a copy of that decision. The court did not mention this recent decision in the prior order, as the decision did not extend the holding in McSwain but merely applied it to a factual situation that was distinguishable from the instant case on the same basis as McSwain. In Pina-Aboite, the officer's sole reasonable suspicion for stopping the car was his belief that the license plate was expired. During the stop, the officer examined the plate and "was satisfied that there was no traffic infraction." Id. The officer also testified that "he `wouldn't have bothered" to stop the car had he seen that the sticker on the plate read "2004."'" Id. The officer, however, continued the detention. In finding an unlawful detention, the Tenth Circuit found McSwain indistinguishable because the officer's "sole purpose" was to check the validity of the plate and once this suspicion about invalidity was dispelled "the sole purpose of the stop was met, as in McSwain." Id. The defendants also cite Gross v. Pirtle, 245 F.3d 1151 (10th Cir. 2001), which refers to McSwain for the same narrow holding that a detention exceeds the permissible scope of a traffic stop when the only reasonable suspicion justifying the stop no longer exists.
Repeating the same refrain from their motion that the facts here are indistinguishable from McSwain, the defendants argue that Trooper Dean stopped the defendants only to check the validity of the temporary tag he saw in the rear window. Alternatively, the defendants contend Trooper Dean lacked reasonable suspicion that the defendants had violated K.S.A. 8-133, because the tag was "lawfully" displayed in the rear window, the tag was not obscured, and lighting conditions are too subjective to create a statutory violation.
As to the first argument, the defendants take issue with the court's credibility finding in footnote four of its prior order where it observed that Trooper Dean's equivocation on certain points appeared to reflect only his inexperience as a witness. The defendants reply that Trooper Dean's inexperience "does not change that three times he clearly and unequivocally stated that he saw the temporary tag in the rear window of the vehicle." (Dk. 53, p. 3). After reviewing again those cited portions of Trooper Dean's testimony, the court reaffirms its credibility finding and emphasizes what the videotape shows, how Trooper Dean first described the stop in his own words, and what he answered upon clearly being asked about when he was first able to determine that what he saw in the rear window was a temporary tag.
As recorded on the videotape, Trooper Dean told the defendant Edgerton that he stopped the car because he "couldn't see that tag in the back window. I just wanted to make sure it was there. . . ." He gave her a warning for the tag and said that it needed to be on the bumper so it could be seen. At the suppression hearing, Trooper Dean used the following words to first describe the traffic stop:
While not requiring the license plate to be fastened on the bumper, Kansas law does require the plate to be placed and positioned so that it is clearly visible and to be maintained so that it is clearly legible. K.S.A. 8-133.
A. We were traveling eastbound. I don't recall which lane we were in at the time, but we came up- upon the 1991 Mercedes. I noticed that there wasn't a tag on the back like where the bracket is for a tag. And as I approached the vehicle from behind, I could see a piece of paper in the window but I couldn't read what state it was or the numbers. And then we ended up stopping the vehicle for the tag violation.
. . . .
Q. And between your patrol vehicle and having a conversation with the driver, did you make any observations relevant to this matter?
A. Yeah. As I walked up to the vehicle, I could see that it was a temporary tag in the back window, a Colorado temporary tag.
(July 14, 2004, Trans. pp. 19-20, 21). On cross-examination, Trooper Dean did refer to the paper seen in the window as a temporary tag but said he could not read it because of the dark. Id. at 54-55. On redirect, he was pointedly asked "at what point in time" he was first able to determine that the object in the rear window was a temporary tag, and Trooper Dean answered it was when the defendant's car had come to a stop and he had pulled up behind the defendant's car. Id. at 134. Fairly construed in its entirety and placed within the context of the videotaped traffic stop, Trooper Dean's testimony establishes that the temporary tag was not visible to him until he had pulled over the defendant's car and parked immediately behind it. Instead of pulling over the defendant solely to check the validity of what he knew to be a temporary tag posted in the rear window, Trooper Dean initiated the stop because he was not even able to determine whether the defendant's car had a temporary tag. Once the tag became visible after the car had been stopped, Trooper Dean retained reasonable suspicion that K.S.A. 8-133 had been violated and the scope of his stop reasonably included checking the validity of the temporary tag.
Trooper Dean later in the cross-examination clarified his testimony about what he was able to see from his moving patrol car:
"But like in this instance, we would come up behind vehicle and I was close enough to not be able to see the — read the tag, and I could tell there was a piece of paper in the back window, but where it was dark out I couldn't see — I couldn't read the tag."
(July 14, 2004, Trans. p. 57).
The defendants alternatively attack the trooper's reasonable suspicion arguing that the tag was "lawfully" displayed, that the tag was not obscured, and that "something as subjective as the lighting conditions at a particular time" is not enough. (Dk. 53, p. 4). As noted before, K.S.A. 8-133 requires the license plate to clearly visible and clearly legible. The statute does not limit these requirements to daytime hours or make any exception or qualification to these requirements for nighttime hours. The defendants offer the court no authorities or rationale for reading such exceptions into the statute. That it was nighttime and that the defendant's license plate was not lighted are not subjective factors. Nor have the defendants shown anything implausible or unreasonable in Trooper Dean's explanation of his inability to read the document that was posted in the rear window but not illuminated at night. If anything, the testimony seems quite reasonable considering that Kansas law recognizes the need for illuminating license plates to make them visible and legible, as it requires a tail lamp or separate lamp to illuminate the rear license plate so that the plate is clearly legible from a distance of fifty feet. K.S.A. 8-1706(c). It also follows that the visibility and legibility of the temporary tag posted in the rear window would be obscured at night by the reflection created from the headlamps of a following car and by the lack of any separate lighting. The defendants' arguments do not diminish nor detract from the weight of Trooper Dean's testimony that he had reasonable suspicion to believe a violation of K.S.A. 8-133 had occurred even after he walked up to the patrol car and confirmed that it was a Colorado temporary tag.
After reconsidering the defendants' arguments, the court remains convinced that Trooper Dean stopped the defendants' car because of a violation of K.S.A. 8-133 and not simply to check the validity of the temporary tag. The court finds that Trooper Dean's reasonable suspicion for this tag violation was not dispelled but continued even after he had read the temporary tag with the aid of his flashlight. These findings of fact effectively distinguish this case from the reach of McSwain, and the court reaffirms this conclusion.
Because the defendants' remaining arguments for reconsideration assume an unlawful detention, the court has no cause for addressing them except one in which the defendants say that the "court erroneously stated in its Memorandum and Order that Trooper Dean took a `short step away and to the rear of the car.'" (Dk. 53, p. 12). The defendants follow this statement with a citation to Trooper Dean's testimony and with the assertion that "the videotape confirms that" Dean did not step away from the car. Id. After reviewing the videotape again, the court reaffirms its finding that the videotape shows Trooper Dean taking a short step away from the driver's car door and towards the rear of the car and then immediately taking a step back to his original position at the driver's car door.
IT IS THEREFORE ORDERED that the defendants' joint motion to reconsider (Dk. 53) is granted insofar as the court has reconsidered the relevant rulings and is denied as to all other requested relief.