Opinion
Case No. 02-40062-02-JAR
December 17, 2002.
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTIONS
This matter is before the Court on defendant's renewed Motion to Suppress Arrest (Doc. 46 and Doc. 81) and Motion for Severance of Defendants (Doc. 86). The government filed a response to the Motion to Suppress Arrest (Doc. 53) and a response to the motion to sever (Doc. 89). Because the parties held a pretrial motions hearing, including live testimony, on August 26, 2002, the motion to suppress is submitted for decision on the pleadings. After reading the parties' pleadings, the Court is now prepared to rule.
Relevant Facts
On April 24, 2002, Emporia police received a dispatch call concerning questionable traveler's checks being used at "Outfitters," a local retail store. Upon arrival, Officer Davis spoke with an Outfitters' employee who described the individual using the traveler's checks as a black female, wearing black clothing and a lot of jewelry. The employee said the female was with a black male in a red, newer model, extended cab pickup.
Dispatch then advised Emporia police that a black female matching the description given by the Outfitters' employee was currently at the local J.C. Penneys store attempting to pass a counterfeit traveler's check. Officer Davis made contact with the black female at J.C. Penneys. The female, later identified as Tracy Stafford a/k/a Liza Goodrich ("Stafford"), informed Officer Ross that she was from out of town and that she did not know her social security number. She admitted that she was using traveler's checks in the store and still had three identical checks, all bearing the same serial number on her person. Stafford told officers that she purchased the checks at a credit union on Kansas Avenue in Kansas City. Officer Ross of the Emporia police assisted Officer Davis at the store.
While speaking with Stafford, Officer Ross noticed a black male watching the conversation. The black male was holding a cellular phone to his ear but did not speak during the few minutes that Officer Ross observed him. The black male walked out of the store and into the parking lot; Officer Ross followed. A red, newer model, extended cab truck was parked outside the store, on the west edge of the parking lot. The black male from inside the store was sitting behind the wheel. Officer Ross pulled his patrol vehicle in front of the red truck to prevent it from leaving. The truck was backed up to an embankment. Officer Ross then asked the man to turn off the engine, get out of the vehicle and produce a driver's license. The man responded that he did not have any identification on his person. Officer Ross observed a wallet in the man's back pocket. Officer Ross noticed the man's eyes were bloodshot and that he smelled of alcohol. The man then produced a driver's license identifying him as Paul E. Sharp.
After running a check on the truck registration, Officer Ross found that the vehicle belonged to Enterprise Rent-a-Car. A copy of the lease agreement showed he was the only authorized driver. (Govt. Exhibit 1 — Lease Agreement). Officer Ross told the defendant he was questioning him about counterfeit traveler's checks. The defendant denied any knowledge of counterfeit traveler's checks. Officer Ross observed several items, in plain view, in the back seat of the extended cab truck. He could see a shop-vac in a bag from Water's True Value (a local store), several paper sacks with expensive liquor bottles, cigarettes and numerous other shopping bags. When asked about the shop vac, defendant said he brought it from Kansas City. Officer Ross told the defendant that he had seen him in J.C. Penneys. Officer Ross described the defendant as fidgety and unable to make eye contact. Officer Ross was radioed by Officer Davis, from inside the store, that the male with Stafford had a first name of Paul. At this point, the defendant was placed under arrest. The defendant tossed his keys inside the truck and quickly locked the doors. He said he was alone and was told that Stafford had identified him and they were both carrying similar small, gold ID badges.
I. Motion to Suppress Arrest
Defendant has resubmitted a motion to suppress arrest, which was withdrawn by counsel at the pretrial motions hearing on August 26, 2002. Defendant challenges whether Officer Ross had probable cause to make the arrest. Probable cause did exist for defendant's arrest and, therefore, his motion is denied.
As set out thoroughly in the facts above, Officer Ross had significant reasonable suspicion to approach the defendant in the parking lot of J.C. Penneys. He had learned that a black male was seen driving a red, extended cab pickup truck and was accompanying a black female who was suspected of passing counterfeit traveler's checks. Defendant was also inside the J.C. Penneys department store while officers questioned the black female suspect. Defendant was seen holding a cell phone to his ear, while watching the interaction between the officers and the black female; however, Officer Ross did not see the defendant ever talking on the cell phone.
At this point, Officer Ross had reasonable suspicion necessary to follow the defendant to the parking lot and questioned him about the suspicious traveler's checks. The defendant denied any knowledge of the checks. Officer Ross could see, in plain view, several items and packaging from local stores, including a shop vacuum. When asked about the vacuum, the defendant said he bought it in Kansas City, though Officer Ross could plainly see the bag from the local hardware store in Emporia, Kansas. At this point, Officer Ross was radioed by officers inside the store that the black male who was accompanying the detained female had a first name of Paul. Officer Ross had already identified the defendant as Paul Sharp. The defendant was placed under arrest at this time.
"An officer has probable cause to arrest if, under the totality of the circumstances, he 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." Officer Ross's information came from reasonably trustworthy sources — his fellow officers and store clerks who saw both the defendant and the black female suspect. Based on that information and what Officer Ross observed both in the store and in plain view in the truck, he had probable cause to believe an offense had been or was being committed.
U.S. v. Patane, 304 F.3d 1013, 1016 (10th Cir. 2002); Illinois v. Gates, 462 U.S. 213 (1983).
II. Motion to Sever Defendants
Defendant has moved the Court to sever his trial from that of his co-defendant, Stafford. Stafford is currently a fugitive and the defendant has invoked his right to a speedy trial. The government does not oppose this severance, if the co-defendant is still at large at the time of trial. This trial is currently scheduled for January 6, 2002. The parties are in agreement and the Court grants the motion, conditioned on the co-defendant still being a fugitive at the time of defendant's trial.
IT IS THEREFORE BY THE COURT ORDERED that the defendant's Motion to Suppress Arrest is denied and defendant's Motion for Severance is granted, subject to the above condition.