Opinion
Crim. Action No. 03-10063-01-WEB
August 20, 2003
Memorandum and Order
This matter came before the court on the defendant's Motion to Quash Arrest and Suppress Evidence (Doc. 31). The court held an evidentiary hearing on the motion on August 15, 2003, and orally denied the motion at the conclusion of the hearing. This written memorandum will supplement the court's oral ruling.
I. Facts.
The court finds the following facts from the evidence presented at the hearing. On March 1, 2003, Wichita Police Officers Charles Simon and Matthew Lang drove by a house located at 3103 S. Euclid street in Wichita. The officers were in a marked patrol car and had on their police uniforms. They had previously received information from a confidential source that someone at this house was giving weapons in exchange for drugs. The officers had been by the house before and knew the automobile that was associated with the residence. When they drove by on this particular occasion, they saw a two-door Oldsmobile in the driveway that they did not recognize. Officer Lang ran the license tag of the Oldsmobile and found that it was registered to the defendant Shiwonn Officer. Lang recognized the defendant's name from previous contacts with him. The officers drove down the street a few blocks and set up surveillance on the house at approximately 7:00 p.m. It was dark outside and the officers could not see anyone coming in or out of the house.
Officer Lang believed that Shiwonn Officer had been previously identified as a gang member, and he was pretty sure that Officer had a prior felony conviction. Lang contacted Officer Beard, a Wichita Police Officer who specialized in gang matters, to see if the defendant was still documented as a gang member. Beard indicated that the defendant was a "targeted gang member," which meant that he likely had a prior felony conviction for violence of some kind.
After about 30 minutes of surveillance, the officers saw the Oldsmobile back out of the driveway and begin to move the other direction down the street. The officers could see the rear tail lights of the Oldsmobile and saw that the car turned at an intersection off of Euclid without the use of a turn signal. This was a traffic violation, and the officers followed the car and turned on their emergency lights. The Oldsmobile stopped and Officer Simon approached and talked to the driver, Shiwonn Officer. The defendant produced his driver's license. Officer Lang approached the passenger side of the Oldsmobile and talked to an individual in the front passenger seat, who was identified as Casey Groves.
Although it was dark, the officers' patrol car had its overhead "takedown" lights on and the front headlights of the car were on high-beam. Additionally, the officers used flashlights during the stop. While the officers were standing on opposite sides of the Oldsmobile, they each noticed a long, slender black carrying case in plain view on the back seat of the car. Officer Simon believed that it was a rifle case and he was concerned that it might have a weapon in it.
Simon and Lang checked on the driver's licenses of the defendant and Groves. The licenses checked out okay. The officers talked to each other and discussed the rifle case. They were concerned for their safety. They decided that Lang would talk to Groves and that Simon would talk to the defendant to determine whether there was a weapon in the case. Lang asked Groves to step out of the car and to step back by the patrol car. Lang patted down Groves and asked him about the gun case. Groves said he did not know anything about it. Lang then placed Groves in the patrol car. Meanwhile, Officer Simon approached the defendant and, after returning his license to him, asked if he would step out of the car. Simon patted the defendant down and asked him what was in the case. The defendant said a rifle. Simon asked if he could retrieve the rifle and the defendant said yes. Officer Lang had returned from the patrol car by this time and also asked the defendant if it was all right if he searched the car, to which the defendant again said yes. Although the defendant testified at the suppression hearing that he told the officers "no" when they asked to search, his version of events was not credible and the court accepts as credible the officers' testimony that the defendant gave consent for the search.
Officer Lang entered the Oldsmobile and retrieved the case. Inside the case he found an SKS assault rifle, a large plastic bag of 7.62 ammunition for the rifle, and a large-capacity drum magazine. He also found several "banana" clips in a green canvas bag under the case.
After the rifle was found, the officers handcuffed the defendant, took him into custody, and read him his Miranda rights. The defendant agreed to talk to the officers and told them he had just bought the rifle for $600. He admitted that he was a convicted felon and that he knew he was not supposed to possess a weapon. Again, the court rejects as not credible the defendant's testimony at the suppression hearing that he told the officers that Groves, not he, had purchased the rifle.
II. Motion to Suppress.
The defendant argues that the officers stopped him without probable cause to believe he committed a traffic violation. He further contends the officers detained him for an investigation in the absence of any reasonable suspicion that he committed an offense. Finally, he contends that the officers unlawfully searched the car without his consent and in the absence of probable cause.
III. Discussion.
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. 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)). See also Whren v. United States, 517 U.S. 806 (1996). The evidence shows that the officers in this case had probable cause to believe the defendant violated city and state traffic ordinances by turning at the corner of Euclid street without using a turn signal. As such, the initial stop of the car and the defendant was reasonable under the Fourth Amendment.
In the ordinary course of the traffic stop, the officers observed in plain view what appeared to be, and in fact was, a rifle case. The presence of the rifle case indicated a significant probability that a firearm was present, particularly in light of the information previously received by the officers that weapons were being traded at the house on Euclid street just visited by the defendant. The circumstances known to the officers clearly gave rise to a reasonable probability that the defendant had a weapon. Moreover, the officers had information suggesting the defendant was a convicted felon who was prohibited from possessing a firearm. Under all of the circumstances, the officers had a reasonable suspicion of criminal activity (if not probable cause) that justified a detention of the defendant and an investigation into whether he was unlawfully in possession of a firearm. "To determine the reasonableness of an investigative detention, we make a dual inquiry, asking first `whether the officer's action was justified at its inception,' and second `whether it was reasonably related in scope to the circumstances which justified the interference in the first place.'" United States v. Williams, 271 F.3d 1262, 1266 (10th Cir. 2001) ( citing Terry v. Ohio, 392 U.S. 1, 20 (1968)). As noted above, the officers were aware of specific facts giving rise to a reasonable suspicion that the defendant unlawfully possessed a firearm. They were therefore justified in briefly detaining him to investigate, and their subsequent actions were reasonably related in scope to the circumstances justifying the detention. The officers briefly separated the occupants of the car and asked them about the rifle case. The evidence shows that the defendant readily admitted there was a rifle in the case, and that he voluntarily consented to a search of the car when the officer asked for permission to search. "[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." United States v. Pena-Sarabia, 297 F.3d 983 (10th Cir. 2002) ( citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The government bears the burden of proving a valid consent to a warrantless search. Id. ( citing United States v. Cody, 7 F.3d 1523, 1526 (10th Cir. 1993)). "First, [the government] must present clear and positive testimony that consent was unequivocal and specific and freely and intelligently given. Second, the government must show that the police did not coerce the defendant into granting his consent." Id. (citing United States v. Pena, 143 F.3d at 1366). The government has met these requirements. The evidence shows that the defendant understand the officers' straightforward request to look in the car to retrieve the rifle, and the defendant gave unequivocal and specific consent for a search. Moreover, there is no evidence that coercion was used to obtain his consent. Upon discovering the weapon and the ammunition in the car, the officers had probable cause to arrest the defendant, and they did so. The evidence shows that the defendant knowingly and intelligently waived his Miranda rights and gave a voluntary statement following his arrest.
Persons temporarily detained for purposes of a Terry-type stop are not generally considered "in custody" for purposes of Miranda v. Arizona, 384 U.S. 486 (1966). Thus, no Miranda warnings need be given until the point at which a suspect's freedom of action is curtailed to a degree associated with a formal arrest. Berkemer v. McCarty, 486 U.S. 420, 440 (1984). The evidence shows that the defendant was not "in custody" when the officer initially asked what was in the rifle case or when the defendant gave his consent for the officer to look in the case. At that point the defendant was standing by the roadside in a public place; he was not handcuffed; the officer did not draw his weapon; the officer did not indicate to the defendant that he was under arrest; and the officer merely asked the defendant a question. Only after the rifle was found and the defendant was handcuffed and placed in a patrol car was he deprived of his freedom to the degree associated with a formal arrest. The evidence shows that the officers appropriately gave the defendant Miranda warnings at that point.
In sum, the court finds that the officers' actions — including their detention of the defendant and the search of the car — were lawful and proper and did not violate the defendant's constitutional rights.
IV. Conclusion.
Defendant's Motion to Quash Arrest and Suppress Evidence (Doc. 31) is DENIED.
IT IS SO ORDERED.