Opinion
Case No. 02-40155-01-RDR
May 9, 2003
MEMORANDUM AND ORDER
This case is now before the court upon pretrial motions filed by defendant. Defendant is facing drug and gun charges arising from a traffic stop and the subsequent search of his home pursuant to a search warrant. On April 24, 2003 the court listened to evidence relevant to two motions to suppress filed by defendant.
Three witnesses testified. Officer Tyson Randall, now a detective with the Lawrence, Kansas Police Department, testified that on September 18, 2002 between 7:00 p.m. and 7:30 p.m., he observed a red Camaro Z-28 speeding, crossing the center line twice and turning without signaling as the vehicle drove a three or four-block distance in central Lawrence. He turned on his emergency lights and had the car pull over near the intersection of 20th Street and Massachusetts. There were two persons in the car. Officer Randall approached the driver, who is the defendant in this case, and asked for identification. Defendant produced a Kansas identification card. But, he could not produce a valid driver's license or valid proof of insurance. This violated Kansas law.
Defendant seemed abnormally nervous to Officer Randall under the circumstances. On that date Randall had approximately seven years of experience as a police officer, four or five years with the Lawrence Police Department. He made traffic stops on a daily basis. He testified that defendant's hands and knees were visibly shaking, that defendant's eyes were bloodshot, and that defendant was breathing rapidly.
The passenger in the car was Bradley Igercic. He was also visibly shaking and breathing rapidly.
When Officer Randall checked the identification information and tag number, he learned that defendant's driver's license was suspended. Officer Randall completed a citation for driving with a suspended license and then asked defendant to step out of the car. Officer Randall said this was his normal procedure. Lawrence Police Officer Kristina Johnson, who was present to provide backup, testified that Officer Randall told her that defendant and Igercic appeared nervous to him and that he would ask them to step out of the car and he would request consent to search.
Defendant asked Officer Randall if he was going to jail. Officer Randall thought this was an unusual question and it made him suspicious. Officer Randall gave defendant the citation and explained it. He returned defendant's documentation and identification and said, "Thanks." Defendant turned to walk back to his vehicle. Officer Randall then asked if defendant was carrying anything illegal. Defendant said, "No." Officer Randall asked if he was carrying drugs or alcohol. Defendant said "No" and said that he was driving to an anniversary party. Officer Randall asked if he could search for drugs or alcohol. Defendant said he was going to an anniversary party and he better be on his way. Officer Randall said that a search would not take much time and that he would not tear up the car. He specifically asked to look in a backpack which he had previously observed on the floor behind the driver's seat. Defendant said the backpack contained "just art supplies." Officer Randall stated the backpack could carry alcohol and again asked to look inside. Defendant repeated that the backpack carried only art supplies. Defendant proceeded to the driver's side door of the car. Officer Randall followed him. Defendant reached inside the car and pulled out the backpack. He unzipped it and, when he did so, Officer Randall observed a bong with white residue inside the backpack. Defendant tried to cover up the bong and said there was no marijuana in it. Officer Randall took possession of the backpack and instructed defendant to sit on the side of the street. Officer Randall looked in the backpack. Methamphetamine, a scale, and other drug paraphernalia were found in the backpack. A loaded gun was found underneath the driver's seat of the car. When the search was finished, defendant and Igercic were transported to the Lawrence Police Department.
Officer Randall used a conversational, not a commanding tone of voice throughout the traffic stop. He made no show of force and he made no threats or promises. He did not ask for permission to ask defendant questions. But, he did not detain defendant as he was asking questions.
Igercic was interviewed. He stated that he and defendant were traveling from defendant's house. He assumed the arrest occurred because methamphetamine was found in defendant's car. He said defendant usually carried methamphetamine. He said that he and defendant had used methamphetamine earlier at defendant's house, and that items connected with using methamphetamine would still be there. Igercic said the backpack belonged to defendant and that a lot of firearms were at defendant's home.
A cell phone taken from defendant rang constantly. This alarmed Officer Randall, who decided to ask that officers secure the residence while he applied for a search warrant. However, Officer Randall had no information that defendant's wife or children were involved in illegal activity. To Officer Randall's knowledge defendant had not called his wife, and Igercic told him that Igercic did not think there was any methamphetamine at the house, although he was not sure.
Officer Johnson and Officer Max Dickens were sent to secure the house, which was part of a duplex, in anticipation of the search warrant. They arrived at the home at approximately 9:05 p.m. Defendant's wife and two small children were inside. When defendant's wife answered the door, she asked if she had to let the officers inside. They told her "yes" and so she did. However, she was upset that the officers were inside the house without a warrant and she objected to it repeatedly. Eventually, she left the house with the children and some belongings. As she left she attempted to lock the officers out of the house, but they prevented this. The officers then waited outside the house until the search warrant arrived. The search warrant was executed slightly less than two hours after the officers secured the house.
Officers Johnson and Dickens did not search the house or provide information to support the application for the search warrant while they were securing the house. No evidence was collected by reason of their conduct.
Search of backpack and car
Defendant makes two arguments to attack the search of the backpack and the car. First, defendant contends that he was detained without reasonable suspicion as Officer Randall questioned him and sought consent to search the backpack and the car. Second, defendant contends that he did not consent to the search of the backpack and the car. After due consideration, the court shall reject both arguments.
We find that defendant was not detained by Officer Randall after Randall gave defendant a citation and returned defendant's documentation. Once defendant received these documents he turned and walked back to his car. As he walked, he and Randall conversed about the contents of the car and whether Randall could search. Defendant never expressly refused or consented to a search. But, he voluntarily reached into his car, retrieved the backpack and unzipped it. When he did this a bong was revealed, and defendant immediately attempted to conceal it.
A police officer may ask questions unsupported by a reasonable suspicion during a consensual encounter. United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.) cert. denied, 511 U.S. 1095 (1994).
Whether a particular encounter constitutes a consensual encounter or an investigative detention involving fourth amendment protections depends on whether a reasonable person under the circumstances would believe she was not free to leave and/or disregard the official's request for information. [citations omitted].
An individual has been seized only if he has an objective reason to believe that he was not free to end his conversation with the law enforcement official and proceed on his way.
U.S. v. Werking, 915 F.2d 1404, 1408 (10th Cir. 1990).
In Werking, a driver of a vehicle was determined to have been in a consensual encounter with a highway patrol officer who had returned the driver's papers to him and then asked the driver three questions about what the vehicle was carrying and whether the driver would mind if the officer looked in the trunk. The driver said "no" to all of the questions and then opened the trunk and later (at the officer's request) opened five bags in the trunk. The district court found, and the circuit court affirmed, that after the papers were returned the encounter became consensual.
It is clear to the court that the interaction between defendant and Officer Randall was consensual after defendant was given the citation and other documents. Officer Randall did not make a show of force. He did not use a commanding tone of voice. He did not make a threat or promise. He only asked a few questions and for permission to search as defendant was walking back to his car. This questioning was brief in time. Under all of the circumstances, we believe a reasonable person would believe that he or she was free to leave at the time of this questioning.
Similarly, we find that defendant was not compelled or coerced to pick up his backpack or unzip it. This was done without the specific request of Officer Randall, who asked if he (Officer Randall) could search the backpack. Defendant acted on his own volition. The evidence is clear and unequivocal to the court that defendant voluntarily reached into his car, removed the backpack and unzipped it.
Voluntariness is a question of fact to be determined from all the surrounding circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Consent can be judged from an individual's words, act or conduct. Krause v. Penny, 837 F.2d 595, 597 (2nd Cir. 1988). In U.S. v. Flores, 48 F.3d 467 (10th Cir.) cert. denied, 516 U.S. 839 (1995) and U.S. v. Benitez, 899 F.2d 995, 998 (10th Cir. 1990), nonverbal consent to search was found when persons stopped by border patrol agents opened the trunks of vehicles and (in Benitez) unzipped a suitcase. In the instant case, defendant's conduct in picking up and unzipping the backpack was a willing and unforced act.
Once Officer Randall saw the bong in the backpack and defendant's effort to cover it up, he had probable cause to detain defendant and search the backpack and car for evidence of drug crimes. Probable cause to search exists when a "prudent person [would] believe there is a fair probability that contraband or evidence of a crime will be found in a particular place." U.S. v. Basham, 268 F.3d 1199, 1203 (10th Cir. 2001) cert. denied, 535 U.S. 945 (2002). Pursuant to the automobile exception and the plain view exception to the warrant requirement, Officer Randall had the right to conduct a search for evidence of a crime and to seize that evidence without a warrant when he saw incriminating evidence and had probable cause to believe that there was other contraband or incriminating evidence in the backpack or the car. U.S. v. Sparks, 291 F.3d 683, 690-01 (10th Cir. 2002). The observation of the bong in plain view was evidence to warrant the belief by an objectively reasonable person that a drug offense had been or was being committed and that evidence of a drug crime would be found in the backpack and the car. See U.S. v. Nohara, 3 F.3d 1239, 1242-3 (9th Cir. 1993) (view of person holding a meth pipe gave probable cause to arrest); Hollyfield v. United States, 407 F.2d 1326 (9th Cir. 1969) (per curiam) (seeing marijuana smoking paraphernalia in plain view gave probable cause for arrest); see also, U.S. v. Trotter, 889 F.2d 153, 155 (8th Cir. 1989) (plain view look at straw used to consume cocaine and knowledge of gun in vehicle supplies probable cause to search garment bag next to the gun in the vehicle); U.S. v. LaFountain, ___ F. Supp.2d ___, 2003 WL 1554404 (D.N.D. 2003) (observation of crack pipe in plain view supplies probable cause to search vehicle).
Search of the residence
Defendant has argued that the court should suppress the evidence obtained from the search of defendant's residence for two reasons. First, defendant asserts that the affidavit for the search warrant is flawed because it does not give reasons to consider Brad Igercic a reliable informant. The affidavit for the search warrant describes the traffic stop and subsequent search of defendant's vehicle in considerable detail. The affidavit describes seeing the bong with white residue inside; finding a large amount of cash on defendant; discovering a golf ball-sized chunk of white methamphetamine in the backpack along with a scale and another smoking pipe; and locating a loaded pistol under the driver's seat of the car. The affidavit further details Igercic's statements. Igercic assumed without being told that the officers found methamphetamine in the car because defendant "usually has some." Igercic said he believed defendant sold methamphetamine from his house and related that he had used methamphetamine at defendant's house earlier that afternoon. Igercic stated that he remembered seeing a meth pipe in defendant's bedroom and that the paper he used to snort meth was still at defendant's house. The affidavit stated that Igercic doubted if there was methamphetamine in defendant's house but said that there were many guns there including an AK-47.
In sum, the affidavit contained specific, detailed information from a named informant who was riding in the same car as defendant and thus could be expected to have knowledge about the defendant. In addition, the informant admitted to criminal conduct. This has been considered a factor indicative of reliability. U.S. v. Le, 173 F.3d 1258, 1266 (10th Cir. 1999). The informant recited first hand observations. This is another indication of reliability. See U.S. v. Tuter, 240 F.3d 1292, 1297-98 (10th Cir.) cert. denied, 534 U.S. 886 (2001). Finally, the materials found in the backpack and defendant's car generally corroborated the informant's information. We believe there was probable cause for the issuance of the warrant.
Even if there was not probable cause, the court finds that the officers acted in good faith and reasonable reliance upon the warrant and, therefore, suppression should not be ordered. See U.S. v. Leon, 468 U.S. 897 (1984); U.S. v. Price, 265 F.3d 1097, 1101-02 (10th Cir. 2001) cert. denied, 535 U.S. 1099 (2002).
Finally, defendant argues that the evidence obtained from his residence should be suppressed because there was no justification for the entry of his home by the officers who were securing the location in anticipation of the search warrant. Assuming for the purposes of argument that the officers' warrantless entry was unjustified, the court finds that suppression should not be ordered. The seizure of evidence from defendant's home was done solely on the basis of the search warrant. No information was gathered and used for the application for the search warrant, and no evidence was gathered prior to the execution of the search warrant by reason of the warrantless entry. In sum, the seizure of evidence from defendant's home was based upon valid authority independent of the warrantless entry and, therefore, the evidence should not be suppressed. Segura v. United States, 468 U.S. 796, 805 (1984); U.S. v. Hogan, 38 F.3d 1148, 1151 (10th Cir. 1994) cert. denied, 514 U.S. 1008 (1995); U.S. v. Corral-Corral, 899 F.2d 927, 930 (10th Cir. 1990); U.S. v. Adam Guzman, 2001 WL 950250 (D.Kan. 7/2/01).
In conclusion, the motions to suppress evidence seized from defendant's backpack, car and residence (Doc. Nos. 18 22) shall be denied.
In addition, the court shall record the following rulings announced during the hearing upon the above-discussed motions. Defendant's motion for discovery, motion to disclose expert testimony, and motion for disclosure of 404(b) evidence shall be considered moot. Defendant's motion to suppress statements (Doc. No. 23) shall be granted.
IT IS SO ORDERED.