Opinion
Case No. 0240066-01-JAR
August 23, 2002
Memorandum Order and Opinion Denying Defendant's Motions to Suppress
This matter is before the court on Defendant's Motion to Suppress Evidence Seized from Vehicle and Motion to Suppress Evidence Seized from Residence (Doc. 23 and 26). On August 19, 2002, the court held an evidentiary hearing regarding these issues. At the conclusion of the hearing, the court took the motions under advisement. After due consideration of the parties' filings and the admitted evidence, the court is now prepared to rule on the motion. For the following reasons, defendant's motions are denied.
I. Background
On April 3, 2002, a grand jury returned a two count indictment against defendant. Defendant was indicted on one count of unlawful possession of pseudoephedrine, knowing the chemical would be used to manufacture a controlled substance and one count of conspiracy to manufacture a controlled substance. Any facts relevant to the issues of suppression are included in the discussion and analysis.
II. Discussion and Analysis A. Motion to Suppress Evidence from Vehicle
Defendant's motion alleges that officers were not justified in stopping his vehicle because he did not commit a traffic infraction. However, this argument fails to consider that the officers had reasonable suspicion outside of any traffic violation to stop the defendant. Defendant had just left his residence, where he had purchased pseuodoephedrine from a confidential informant ("CI"), who was wearing a transmitting wire. Independence, Kansas police officers were preparing to search the defendant's residence after the sale and had ordered that anyone leaving the residence be stopped and detained. Officers did not need a traffic violation to stop the defendant. When an officer has a "particularized and objective basis" for believing that criminal activity is occurring, he has reasonable suspicion to stop the vehicle. Here, the officer had a reasonable suspicion of criminal activity based on the controlled sale to defendant by the CI.
United States v. Arvizu, 534 U.S. 266 (2002).
The defendant gave officers consent to search his vehicle once he was stopped. While Detective Smith testified that he initially drew his weapon when pulling over the car, once he saw the defendant exit the vehicle unarmed, he holstered the gun. Detective Smith advised the defendant that police were obtaining a search warrant for his residence. Detective Smith then asked the defendant if he could search his vehicle.
The defendant replied "sure." The defendant informed the officer that a gun was under the seat and that a trash bag that had been left at his house earlier was also in the truck.
The defendant gave uncoerced, oral consent to Detective Smith after a valid vehicle stop. Nothing suggests that the defendant was under duress, deceived, tricked, the victim of police misconduct or physical threats. Accordingly, the defendant's motion to suppress is denied.
United States v. Glover, 104 F.3d 1570, 1583-84 (10th Cir. 1997).
B. Motion to Suppress Evidence from Residence
Defendant argues that the affidavit used to procure the search warrant was insufficient. He argues that the magistrate was unaware that the defendant had been stopped and either some or all of the pills sold to him by the CI recovered. Detective Smith stopped the defendant at 7:45 p.m. The warrant was executed at 8:41 p.m. Testimony was unclear as to whether officers had accounted for all the pills sold to defendant. However, even if the pills were inventoried and found in total in the defendant's vehicle, there was still sufficient probable cause in the affidavit to search for evidence of manufacturing and distribution of drugs.
Certainly, it was error to not include the vehicle stop and recovery of all or some of the pills in the affidavit. However, not including this information did not destroy probable cause and the warrant is saved under the good faith exception found in United States v. Leon.
United States v. Leon, 468 U.S. 1250, (1984).