Opinion
Case No. 02-40014-01-RDR
December 30, 2002
MEMORANDUM AND ORDER
This matter is presently before the court upon defendant's motion to suppress. The court has heard extensive evidence concerning the motion and is now prepared to rule.
The background in this case is somewhat unusual. The original indictment was filed on January 30, 2002. The indictment contained only one count. The defendant was charged with possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). The case was assigned to Judge Julie Robinson. Marilyn Trubey of the Federal Public Defender's Office was appointed to represent the defendant. On March 8, 2002, Ms. Trubey sought to withdraw. Her request was granted and Kay Huff was appointed to represent the defendant. Ms. Huff filed several motions, including a motion to suppress. Judge Robinson held a hearing on the motion to suppress on May 20, 2002, and orally denied it at the conclusion of the hearing.
This case was transferred to me on October 16, 2002. On October 17, 2002, Ms. Huff moved to withdraw because of difficulties with her client. The court granted the motion and then appointed Michael Jackson to represent the defendant. A superseding indictment was filed on November 7, 2002. This indictment added a charge. The defendant was charged with possession with intent to distribute Ecstasy in violation of 21 U.S.C. § 841(a)(1). Thereafter, Mr. Jackson filed several motions on the defendant's behalf, including a motion to reopen the suppression hearing. On December 13, 2002, the court granted the defendant's motion to reopen the suppression hearing. The court then conducted another hearing on the motion to suppress. The court is now prepared to issue findings of fact and conclusions of law.
FINDINGS OF FACT
1. On December 21, 2001, at approximately 2:40 a.m., Bryan Wheeles, a police officer for the City of Topeka police department, was parked in his patrol car in the parking lot north of the Boys Club at 2700 S.E. Adams. His car was facing west towards Adams. He was talking with Byron Endsley, a sergeant with the City of Topeka police department, who was also in his patrol car, but it was facing east. Officer Wheeles noticed a black Lexus automobile traveling south on Adams. The Lexus matched the description of a vehicle that had purportedly been taken by some runaways earlier that evening. Both police officers are Caucasians.
2. Officer Wheeles left the parking lot and began to follow the Lexus. Upon following the car, he immediately realized that this car was not the one taken by the runaways because this one had a specialized license plate, and the car purportedly taken by the runaways did not. However, he did see this car weaving within its lane in the 2700 block of Adams. He called for backup assistance from Sergeant Endsley, who reported that he was coming. Officer Wheeles believed that the driver might be under the influence of alcohol or drugs.
3. Officer Wheeles noted that the Lexus stopped abruptly at a red light at the intersection of 29th Street and S.E. Adams. He then proceeded to activate his emergency lights and stop the car. As he was stopping the car, Officer Wheeles realized that the car belonged to Andre Rhoiney. The windows of the car, however, were tinted so it was not possible for Officer Wheeles to determine who was driving. The car stopped in the 3000 block of Adams. Officer Wheeles waited in his car for a few moments as Sergeant Endsley arrived and parked behind him.
4. The stop and the events that occurred following the stop were recorded by a video camera located in Officer Wheeles' patrol car. The videotape of the incident contains no audio.
5. Officer Wheeles approached the car on the driver's side while Sergeant Endsley approached it on the passenger's side. Both were carrying flashlights. After Officer Wheeles reached the driver's window, the driver rolled it down. Officer Wheeles recognized Andre Rhoiney at that time. Rhoiney is an African-American. Rhoiney was the only occupant of the car. Officer Wheeles had had some past dealings with him and, based upon those dealings, he believed that Rhoiney's Kansas driver's license was suspended.
6. Officer Wheeles told Rhoiney why he had stopped him and asked for his driver's license. Rhoiney produced a Kentucky driver's license. Officer Wheeles smelled the odor of alcohol and burnt marijuana emanating from the vehicle. Sergeant Endsley was unable to smell anything because the passenger window had not been rolled down. Both officers shined their flashlights into the vehicle. Both noticed a marijuana blunt in the ashtray. A blunt is a cigar with the tobacco removed and replaced with marijuana.
7. After observing the marijuana blunt, Officer Wheeles intended to arrest Rhoiney for possession of marijuana. He directed Rhoiney to get out of the car and proceed to the rear of the car. Rhoiney was then patted down. Rhoiney was then handcuffed and told he was under arrest for possession of marijuana and driving on a suspended license. Another search of Rhoiney was then conducted. During this search the officers discovered a plastic bag containing Ecstasy pills and $700 in cash.
8. Rhoiney was then taken to Officer Wheeles' patrol car. After Rhoiney left the area near the rear of his car, a small white object could be seen on the roadway. Officer Wheeles returned to Rhoiney's car and began searching the interior. Sergeant Endsley subsequently discovered the package on the roadway. The white object was a baggie containing small bags of crack cocaine.
9. After the search of Rhoiney's car had been completed, Officer Wheeles contacted dispatch to determine if Rhoiney's Kansas driver's license was still suspended. He learned that it remained suspended.
10. At the first hearing on Rhoiney's motion to suppress, Officer Wheeles had testified that he did not recognize the car or the driver prior to the time that the driver rolled down the window. However, the dispatch tape contains the following statement by Officer Wheeles at the time the car was stopped: "Hey this is uh . . . Andre Rhoiney's car." During the hearing before this court, Officer Wheeles testified that he did not remember making that statement and he did not remember recognizing Rhoiney's car. Officer Wheeles was unable to explain his lack of memory on this matter.
CONCLUSIONS OF LAW
1. The defendant contends that Officer Wheeles' explanation for stopping his car was false. He suggests that Officer Wheeles' testimony concerning the runaways who took a car matching the description of his car and his weaving while driving on S.E. Adams were concocted to justify the stop of his car. He further asserts that Officer Wheeles and Sergeant Endsley planted the evidence that was seized from him following the stop. As support for his contentions, he points to the following: (1) several inconsistencies between Officer Wheeles' testimony at the first hearing and the statements contained on the dispatch tape; (2) several inconsistencies between Officer Wheeles' testimony at the first hearing and his report; (3) the inability of Officer Wheeles to view any weaving in his driving because of the location of the cars and the topography of the area; (4) the omission of any reference to an automobile or license plates in the reports that were filed concerning the runaways; (5) the failure of Officer Wheeles to check the validity of his Kansas and Kentucky driver's licenses prior to his arrest; (6) the failure of the officers to find the drugs when he was initially patted down; and (7) the inability of the officers to observe the color of the vegetation in the marijuana blunt. The officers' motivation for their actions on December 21st is left to speculation. The defendant apparently believes that these actions were taken because he is black and the officers are white and/or because the officers were determined to get him, perhaps due to some past dealings with him.
2. A traffic stop is a "seizure" within the meaning of the Fourth Amendment. See United States v. Holt, 264 F.3d 1215, 1220 (10th Cir. 2001). A traffic stop is reasonable under the Fourth Amendment at its inception if the officer has either probable cause to believe a traffic violation has occurred or a reasonable articulable suspicion that the motorist in question has violated or is violating any one of the applicable traffic and equipment regulations of the jurisdiction. United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999). See Whren v. United States, 517 U.S. 806, 810 (1996).
3. An officer has probable cause to arrest if, under the totality of the circumstances, he has learned of facts and circumstances through reasonably trustworthy information that would lead a reasonable person to believe that an offense has been or is being committed by the person arrested. United States v. Morris, 247 F.3d 1080, 1088 (10th Cir. 2001). Probable cause does not require facts sufficient for a finding of guilt; however, it does require more than mere suspicion. Id.
4. The court is persuaded that Officer Wheeles had probable cause to stop the car. The court finds the testimony of Officer Wheeles credible concerning the events that led to the stop. The court believes that Officer Wheeles stopped the car because he thought the driver might be impaired. The court also finds that Officer Wheeles had probable cause to arrest the defendant once the marijuana blunt was seen in his car. The court is not persuaded that the car stop was a ruse to target Rhoiney.
5. In reaching the aforementioned conclusions, the court was forced to assess the credibility of the officers and the other witnesses, including the defendant. The court, in weighing the testimony of the witnesses, considered their appearance and manner while testifying, their means of knowledge, apparent intelligence or ignorance, interest or want of interest in the outcome of the case, and all other facts and circumstances. See United States v. Nicholson, 983 F.2d 983, 992 (10th Cir. 1993). The court found that the testimony of the officers was generally consistent and persuasive. The inconsistencies or omissions in the officers' testimony or their reports noted by the defendant involved insignificant details or innocent errors. In sum, the court finds that the defendant's motion to suppress must be denied.
IT IS SO ORDERED.