Opinion
No. 02-40108-01-SAC
January 31, 2003.
MEMORANDUM AND ORDER
This case comes before the court on the defendant Joseph Dale Flowers's Motion to Suppress (Dk. 20). The government has filed a response opposing this motion. (Dk. 24). On December 20, 2002, the court heard evidence and arguments on the motion to suppress. 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 that charges him with felony possession of a firearm on April 27, 2002, in violation of 18 U.S.C. § 922(g), and with possession with intent to distribute approximately 18.43 grams of methamphetamine on April 27, 2002, in violation of 21 U.S.C. § 841(a)(1).
FACTS
Around 1:00 a.m. on April 27, 2002, Deputy Dennis Lee Thompson with the Jackson County Sheriff's Office was patrolling a remote area of Jackson County that is sparsely populated. In testifying about this area, Deputy Thompson said that he was familiar with the residents living there and their vehicles and that he knew a large amount of methamphetamine laboratory trash had been found there. Deputy Thompson also testified that the operation of methamphetamine laboratories out of cars parked on country roads during the night and early morning hours happens frequently in these remote areas of Jackson County. He also testified that the thefts of anhydrous ammonia from tanks found in farm fields would occur during this time of the year.
A videotape of the traffic stop shows that around 1:05 a.m. Deputy Thompson stopped a dark-colored Ford Explorer. Thompson testified that he had been stopped at an intersection when he noticed the white registration lamp on the Ford Explorer was not operating and did not illuminate the license tag so that it was visible from fifty feet away. Thompson began following the vehicle and ran the license tag after getting close enough to read it with his head lights. Deputy Thompson testified that prior to the stop he learned the license tag was valid and was registered to the vehicle on which it was displayed. At the intersection of T Road and 142nd Road, he activated his emergency lights and pulled over the Ford Explorer. Besides this traffic violation, Thompson admitted that his attention was drawn to the Ford Explorer because of the time of night and the fact that he did not recognize it as a vehicle owned by a local resident.
Deputy Thompson approached the Ford Explorer and immediately noticed that the driver was extremely nervous as displayed by the cracking of his voice, the trembling of his hands, and the avoidance of eye contact. As he initially spoke with the driver and obtained a driver's license and proof of insurance, Deputy Thompson saw the corner of a magazine that would fit a .22 rifle, a white glass plate behind the passenger seat on the floor, and a tan leather glove on the back seat. Thompson testified that he noted the plate because there was "quite a bit" of white residue on the plate which is consistent with the plate being used in the drying process of a methamphetamine laboratory. Thompson noticed the leather glove appeared to be discolored and shrunk. Thompson said leather gloves are worn frequently as protection in handling anhydrous ammonia and will shrink and become discolored upon contact with anhydrous ammonia. Deputy Thompson took the requested documents and headed back to his patrol car. While this part of the traffic stop appears on the videotape and lasted less than two minutes, there is no audio recording of what was said.
Deputy Thompson radioed dispatch for a license check and requested an additional officer for assistance. At this point, the audio recording on the videotape begins. Deputy Thompson testified that concerns for his own safety caused him to request back up in that he had seen a firearm magazine but not the firearm. The videotape shows that dispatch relayed the information from the license check and that three minutes later at least two more patrol cars arrived on the scene. Deputy Thompson is heard telling the other officers that he was concerned because the driver appeared extremely nervous. Next on the videotape, Deputy Thompson is seen approaching the driver's side while Deputy Alfred Dunn and the other officers approach on the passenger side.
The videotape shows that Deputy Thompson explained the presence of the other officers and then returned the driver's license and other documentation to the defendant. Thompson told the defendant that he was still waiting for a response from the computer and that he and the other officers were patrolling the area looking for methamphetamine laboratory trash, thefts and murders. Thompson asked the defendant the reason for his travels in this area and the defendant said he had been visiting his uncle and cousins. The deputy then asked if the defendant was carrying any weapons or any illegal drugs, and the defendant answered no. Following up on these answers, Deputy Thompson asked if the defendant "minded if he took a glance in the vehicle." The defendant indicated he did not understand Thompson, and the deputy repeated his request to search the vehicle. The defendant's response is unclear on the videotape, but Deputy Thompson then says the defendant is acting nervous and that "there is something wrong here." The defendant explained that he was just scared as he was not expecting to be pulled over.
Deputy Thompson told the defendant that he was still waiting for the registration and that he would not keep the defendant long. He then requested the defendant to "hop out" of the vehicle because "there's something wrong here." While exiting the vehicle, the defendant disclosed that there were two unloaded rifles on the back floor and pointed out the location of the clips. Deputy Thompson directed the defendant to step to the back of the Explorer and speak with another officer there. Deputy Thompson testified that he saw a glass smoking pipe on the floor board of the passenger side as the defendant exited the vehicle and that he believed there existed probable cause at that point to search the vehicle. Deputy Alfred Dunn testified that before the defendant was asked to exit the vehicle he observed the glass pipe with a burned residue inside of it. The pipe was lying on the passenger side floor board. Deputy Dunn further testified the pipe constituted drug paraphernalia which was a misdemeanor offense under Kansas law and gave the officers probable cause to search the vehicle prior to the defendant being asked to get out of the vehicle.
According to Deputy Thompson's testimony, the defendant never consented to a search of the vehicle as the defendant was never asked to give consent.
The videotape shows the officers briefly searched the vehicle. Deputy Thompson then walked up to the defendant and confronted him with a glass pipe saying that something illegal had been smoked in it and that a hypodermic needle had been found in the glove box. The Deputy asked whether there were any more needles in the vehicle and whether any one was diabetic. The defendant indicated he didn't know of any and that he has a lot of people riding with him at times. At this point, the Deputy told the defendant that he was being arrested for the pipe and the needle and that both items would be checked for the drugs involved.
Deputy Thompson then read the defendant the Miranda warning which concluded with a sentence that he could exercise these rights at anytime and not answer any questions. Deputy Thompson said "O.K." and placed the warning back into his breast pocket. The videotape shows that Deputy did not ask the defendant whether he waived these rights or whether he wanted to talk with the officers but immediately proceeded to ask the defendant whether the pipe was used for methamphetamine or cocaine, and the defendant answered methamphetamine. The Deputy then asked if there was anything else in the vehicle about which he should know. The defendant indicated there wasn't anything else. The officers continued to search the vehicle but also decided to have the vehicle towed back to the sheriff's office to be searched inside and away from the wind and rain. Deputy Thompson told the defendant that he could make arrangements for someone to pick up his Explorer at the sheriff's office. The defendant was handcuffed, placed in the deputy's patrol car, and eventually transported to the Jackson County Sheriff's Office where he was given another Miranda warning and interviewed by Detective Scott Bond.
During direct examination, Deputy Thompson testified that he asked whether the defendant would waive his rights and speak with the officer but that he could not recall the defendant's response. On cross-examination, Deputy Thompson testified that the request for a waiver of rights is question No. 7 of the Miranda warning. Thompson, however, agreed with defense counsel that the defendant never indicated that he would waive his rights. The videotaped portion of the traffic stop does not show Deputy Thompson asking for or obtaining a waiver prior to asking the defendant whether the pipe was used to smoke cocaine or methamphetamine. Because the defendant has not directed his motion to suppress to this particular statement and to the issue whether the defendant waived his Miranda rights, the court shall not address it at this time. The court, however, expects the government will not refer to this statement at trial or attempt to introduce it without first demonstrating that the defendant knowingly and voluntarily waived his rights before answering Deputy Thompson's question about the drug used in this pipe.
ARGUMENTS
The defendant seeks to suppress evidence seized from the car he was driving on April 27, 2002, as well as any statements he allegedly made following the stop and arrest. The defendant contends the initial stop violated the Fourth Amendment as Deputy Thompson lacked reasonable suspicion that a traffic violation had occurred. Citing K.S.A. 8-1706(c), the defendant argues the statute requires only that the rear plate be illuminated and does not require a car to be equipped with an operational separate light. The defendant contends Deputy Thompson illegally detained him by delaying completion of the stop for backup and by asking additional questions unrelated to the reason for the traffic stop. The defendant also challenges the search of his vehicle as performed without his consent and without probable cause. Finally, the defendant complains that the officers did not obtain a warrant before searching the car a second time after it was towed to the sheriff's department.
This provision reads:
"(c) Either a tail lamp or a separate lamp shall be so constructed and placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of fifty (50) feet to the rear. Any tail lamp or tail lamps, together with any separate lamp or lamps for illuminating the rear registration plate, shall be so wired as to be lighted whenever the head lamps or auxiliary driving lamps are lighted."
The government responds that Deputy Thompson observed that the rear license plate on the defendant's car was not properly illuminated by a white light as required by statute. Based on the defendant's nervousness, the time of the stop, the location of the stop, and the other suspicious items in plain view, Deputy Thompson was justified in calling and waiting for assistance from other officers and in asking additional questions relevant to the deputy's suspicions. Once the officers saw in plain view on the floor board a drug smoking pipe, the possession of which is a misdemeanor offense in Kansas, the officers had probable cause to search the car and to arrest the defendant. The government argues the towing and subsequent search is justified by Chambers v. Moroney, 399 U.S. 42, 51 (1970).
LAW AND ANALYSIS
The Fourth Amendment protects individuals from unreasonable searches and seizures. See U.S. Const. amend IV. A routine traffic stop is a seizure under the Fourth Amendment. United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000). Analogous to investigative detentions, routine traffic stops are analyzed under the principles stated in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). 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); see Terry, 392 U.S. at 20.
For purposes of the first prong, "a traffic stop is reasonable under the Fourth Amendment at its inception if the officer has either (1) probable cause to believe a traffic violation has occurred or (2) a reasonable articulable suspicion that `this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.'" United States v. Ramstad, 308 F.3d 1139, 1144 (10th Cir. 2002) (quoting United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999) (quoting United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc), cert. denied, 518 U.S. 1007 (1996))). Reasonable suspicion is "a particularized and objective basis" for suspecting the person stopped of criminal activity. United States v. Cortez, 449 U.S. 411, 417-18 (1981). The officer's subjective motives for stopping the vehicle are irrelevant under Fourth Amendment analysis. See Whren v. United States, 517 U.S. 806, 813 (1996); Botero-Ospina, 71 F.3d at 787. 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).
The court finds Deputy Thompson's testimony concerning the traffic stop to be credible. He observed that the registration lamp on the Ford Explorer was not operating and that the rear license tag was not illuminated by a white lamp so as to visible from a distance of fifty feet. There is no evidence of record that contradicts the deputy's observations. Based on this testimony, the court finds that Deputy Thompson had reasonable suspicion to believe that the defendant was violating K.S.A. 8-1706(c) in driving the Ford Explorer around 1:00 a.m. on April 27, 2002. The court finds no merit to the defendant's argument that the initial traffic stop here was unlawful.
Going to the second prong of the Terry test, the court looks first at "whether the officer's actions during the detention were reasonably related in scope to the circumstances which justified the interference in the first place." United States v. West, 219 F.3d at 1176 (internal quotation and citation omitted). An "investigative detention usually must `last no longer than is necessary to effectuate the purpose of the stop,' and `[t]he scope of the detention must be carefully tailored to its underlying justification.'" United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). Following a routine traffic stop where the license and registration check does not provide the officer with reason to detain the driver longer, the officer must permit the driver to proceed "unless the officer has reasonable articulable suspicion of other crimes or the driver voluntarily consents to further questioning." United States v. West, 219 F.3d at 1176 (citation omitted).
Because this is not an instance where the defendant consented to additional questions or delay, the court must determine whether Deputy Thompson had reasonable suspicion to detain the defendant beyond the time required for the initial stop. The Tenth Circuit recently reiterated:
We consider it worth repeating that our analysis of whether an investigative detention is supported by an objectively reasonable suspicion of illegal activity turns on our review of the totality of the circumstances. United States v. Jones, 44 F.3d 860, 872 (10th Cir. 1995). In doing so, we "judge the officer's conduct in light of common sense and ordinary human experience," United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997), and we accord deference to an officer's ability to distinguish between innocent and suspicious actions. [ United States v.] Wood, 106 F.3d [942] at 946 [(10th Cir. 1997)]. Reasonable suspicion, however, may not be derived from inchoate suspicions and unparticularized hunches. United States v. Sokolow, 490 U.S. 1, 7 (1989).
United States v. Williams, 271 F.3d 1262, 1268 (10th Cir. 2001), cert. denied, 122 S.Ct. 1610 (2002). Specifically, the court considers whether Deputy Thompson had grounds for delaying the traffic stop by requesting and waiting for assistance from other officers and whether Deputy Thompson had articulable reasonable suspicion of illegal activity after he returned the defendant's license and documentation in order to detain him with additional questions.
In United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001) (en banc) (footnote omitted), the Tenth Circuit noted that officers are permitted to take reasonable measures to protect officer safety and that "[w]hen these measures are not too intrusive, the government's strong interest in officer safety outweighs the motorist's interests." For instruction in balancing the interests in its case, the Circuit looked at "other situations in which federal courts have allowed considerations of officer safety to outweigh fairly intrusive conduct during a traffic stop." Id. at 1223 (citations omitted). The court has done the same for this case here. Balancing the nature and quality of the intrusion on the defendant's Fourth Amendment interest (waiting less than three additional minutes by himself in his car) against the importance of the governmental interests justifying the intrusion (officer safety concerns implicated by Deputy Thompson being alone on the traffic stop at 1:00 a.m. in a remote county area known for a high incidence of methamphetamine laboratory activity and having seen a firearms magazine in the vehicle), the court finds that Thompson's decision to request and wait for assistance before completing the traffic stop and seeking consent to search the vehicle was not unreasonable.
When Deputy Thompson approached the defendant's vehicle and returned the documentation, he had reasonable suspicion of illegal activity to justify lengthening the detention with additional questions. The traffic stop occurred at 1:00 a.m. in an area known for a high incidence of illegal methamphetamine activity. Deputy Thompson observed that the defendant demonstrated continued and extreme nervousness. See United States v. Williams, 271 F.3d at 1268. Deputy Thompson, a certified methamphetamine laboratory technician, observed inside the car in plain view a white glass plate with a white residue on it. Deputy Thompson testified that a plate with residue could indicate it might have been used in the drying process of manufacturing methamphetamine and that the plate with residue seen in the defendant's vehicle was consistent with this possibility. In addition, Thompson saw a tan leather glove on the back seat that appeared to have been shrunk. Thompson testified that persons handling anhydrous ammonia, a chemical used in the manufacture of methamphetamine, wear leather gloves for protection and that a leather glove will shrink when it comes into contact with anhydrous ammonia. The totality of these circumstances provided Deputy Thompson with articulable reasonable suspicion that there was illegal activity afoot.
While Deputy Thompson extended the stop with additional questioning, Deputy Dunn was on the passenger side looking through the windows with his flashlight. Before the defendant stepped out of his vehicle, Deputy Dunn observed on the passenger side floor board a glass pipe with a burned residue in it. Based on his training and experience, Deputy Dunn knew that these pipes were used to smoke cocaine or methamphetamine, that they were considered drug paraphernalia, and that the possession of them was a misdemeanor offense under the laws of Kansas. Even though Deputy Dunn was unable to tell Deputy Thompson about the glass pipe before the defendant was asked to step out of his vehicle, the court will aggregate their knowledge as this is a situation where two officers are working closely together at the stop and can be treated as a "single organism." United States v. Shareef, 100 F.3d 1491, 1504 n. 6 (10th Cir. 1996). Based on their collective knowledge, the deputies had probable cause to believe the vehicle contained evidence of criminal activity as to justify their search of it. They also had probable cause to arrest the defendant for this misdemeanor offense and to search the car for additional evidence of drugs. Thus, the deputies properly searched the car based on probable cause and as incidental to an arrest.
When officers have probable cause to believe a vehicle contains contraband, they may search it without first obtaining a warrant. The search may take place by the side of the road, Chambers v. Maroney, 399 U.S. 42, 48 (1970), or after the vehicle has been impounded, Florida v. Meyers, 466 U.S. 380, 382 (1984); United States v. Anderson, 114 F.3d 1059, 1066 (10th Cir. 1997), or after an officer directs the driver to follow him to the station, United States v. Lopez, 777 F.2d 543, 550 (10th Cir. 1985). "If police have probable cause to search a car, they need not get a search warrant first even if they have time and opportunity." United States v. Ludwig, 10 F.3d 1523, 1528 (10th Cir. 1993). Thus, the deputies acted reasonably in having the vehicle towed to the sheriff's office where they could complete their search of the vehicle under better light and without exposure to rain and wind. This decision was also consistent with concerns for officer safety, as the deputies had already found one hypodermic needle.
IT IS THEREFORE ORDERED that the defendant Joseph Dale Flowers's Motion to Suppress (Dk. 20) is denied.