Opinion
Case No. 4:19-cr-00406-RK
2022-12-27
UNITED STATES of America, Plaintiff, v. (1) Kamel Mahgub ELBURKI, Defendant.
Bruce A. Rhoades, Byron H. Black, Maureen Brackett, DOJ-USAO, Kansas City, MO, for Plaintiff. Stephen Chase Higinbotham, Jr., Higinbotham & Higinbotham, Lee's Summit, MO, for Defendant Kamel Mahgub Elburki. David Guastello, Kansas City, MO, for Defendant Tayler Charles Jones. Angela Claire Hasty, Law Office of Angela Hasty, LLC, Kansas City, MO, for Defendant. Arimeta R. DuPree, A Dupree & Associates, Kansas City, MO, for Defendants Rachel Gale Simpson, Justin Ren'e Ramirez. Mark A. Thomason, Law Office of Mark Thomason, LLC, Kansas City, MO, for Defendant Cory Matthew Jobe. Thomas H Johnson, Petefish, Immel, Hird, Johnson, Leibold & Sloan, LLP, Lawrence, KS, for Defendant. Jane Francis, Law Office of Jane Francis LLC, Kansas City, MO, for Defendant. Steven Bradley Willibey, Law Office of Steven Willibey, Kansas City, MO, for Defendant. Jeffrey Alan Gedbaw, Gedbaw Law Firm LLC, Lee's Summit, MO, Lisa G. Nouri, Missouri, Kansas City, MO, for Defendant. Casey Meek, Joseph, Hollander & Craft LLC, Kansas City, MO, for Defendant. Patrick James O'Connor, Wagstaff & Cartmell, Kansas City, MO, for Defendant. Kenneth C. Hensley, Hensley Law Office, Raymore, MO, for Defendant. David Harold Johnson, David H. Johnson Attorney at Law, Kansas City, MO, for Defendant. Chad G Gardner, The Law Office of Chad G. Gardner, Kansas City, MO, for Defendant. John R. Osgood, Lee's Summit, MO, for Defendant.
Bruce A. Rhoades, Byron H. Black, Maureen Brackett, DOJ-USAO, Kansas City, MO, for Plaintiff. Stephen Chase Higinbotham, Jr., Higinbotham & Higinbotham, Lee's Summit, MO, for Defendant Kamel Mahgub Elburki. David Guastello, Kansas City, MO, for Defendant Tayler Charles Jones. Angela Claire Hasty, Law Office of Angela Hasty, LLC, Kansas City, MO, for Defendant. Arimeta R. DuPree, A Dupree & Associates, Kansas City, MO, for Defendants Rachel Gale Simpson, Justin Ren'e Ramirez. Mark A. Thomason, Law Office of Mark Thomason, LLC, Kansas City, MO, for Defendant Cory Matthew Jobe. Thomas H Johnson, Petefish, Immel, Hird, Johnson, Leibold & Sloan, LLP, Lawrence, KS, for Defendant. Jane Francis, Law Office of Jane Francis LLC, Kansas City, MO, for Defendant. Steven Bradley Willibey, Law Office of Steven Willibey, Kansas City, MO, for Defendant. Jeffrey Alan Gedbaw, Gedbaw Law Firm LLC, Lee's Summit, MO, Lisa G. Nouri, Missouri, Kansas City, MO, for Defendant. Casey Meek, Joseph, Hollander & Craft LLC, Kansas City, MO, for Defendant. Patrick James O'Connor, Wagstaff & Cartmell, Kansas City, MO, for Defendant. Kenneth C. Hensley, Hensley Law Office, Raymore, MO, for Defendant. David Harold Johnson, David H. Johnson Attorney at Law, Kansas City, MO, for Defendant. Chad G Gardner, The Law Office of Chad G. Gardner, Kansas City, MO, for Defendant. John R. Osgood, Lee's Summit, MO, for Defendant. ORDER ROSEANN A. KETCHMARK, UNITED STATES DISTRICT JUDGE
On October 27, 2022, Magistrate Judge W. Brian Gaddy issued a Report and Recommendation (Doc. 555) concluding that the Court should deny Defendant Kamel Mahgub Elburki's motion to suppress (Doc. 439). Defendant filed objections to the Report. (Doc. 557.)
The Government submitted a filing indicating it has no objections to the Report. (Doc. 556.)
After careful and independent de novo review of the record, the applicable law, and the parties' arguments, the Court sustains Defendant's objection to the factual assertion that Defendant did not assert any ownership or possessory interest in items inside the vehicle that was subject to the December 19, 2018, traffic stop in Springfield, Missouri. (See Doc. 557 at 5, No. 14; see Tr. at 28 & 29.) Nonetheless, without a possessory or property interest in the vehicle itself, Defendant lacks Fourth Amendment standing to challenge the December 2018 traffic stop and subsequent search other than as to his own detention. See United States v. Davis, 943 F.3d 1129, 1132 (8th Cir. 2019). The Court agrees with Magistrate Judge Gaddy's findings of fact and conclusions of law in all other respects and accepts his recommendation. Accordingly, the Court ORDERS that:
(1) the Report and Recommendation of Magistrate Judge Gaddy (Doc. 555) is ADOPTED subject to the factual modification as explained above;
(2) Defendant's objections (Doc. 557) are SUSTAINED as to No. 14 and are otherwise OVERRULED; and
(3) Defendant's motion to suppress (Doc. 439) is DENIED.
IT IS SO ORDERED. REPORT AND RECOMMENDATION
Pending is Defendant Kamel Mahgub Elburki's Motion to Suppress Evidence and Statement filed on December 15, 2021. Doc. 439. On January 25, 2022, the Government filed Suggestions in Opposition to Defendant's motion. Doc. 455. Defendant filed his reply on February 8, 2022. Doc. 469. For the reasons below, it is recommended that Defendant's motion be DENIED.
I. BACKGROUND
On September 30, 2020, the grand jury returned a superseding indictment charging Defendant Kamel Mahgub Elburki with conspiracy to distribute 500 grams or more of methamphetamine and one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 (Count One); conspiracy to commit money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (B)(i)-(ii), and (h) (Count Two); carrying, possessing, using, brandishing, and discharging firearms in furtherance of a drug trafficking offense in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)-(iii) (Count Three); being a felon in possession of firearms and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Fourteen); and possession with intent to distribute 500 grams or more of methamphetamine and one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count Twenty-Five). Doc. 144.
The superseding indictment charged nineteen other defendants. See Doc. 144.
There are two separate encounters at issue in Defendant's Motion to Suppress. See Doc. 439 at 1, 4-5, 10-14. The first occurred on December 19, 2018, in Springfield, Missouri (hereinafter, "Springfield stop"), and the second happened on January 5, 2019, in Kansas City, Missouri (hereinafter, "Kansas City stop"). Id.; see also Doc. 144. Defendant argues both stops lacked probable cause and were improperly prolonged. Doc. 439 at 10-14. In addition, he contends law enforcement illegally towed his vehicle and improperly relied on the inventory search exception during both stops. Id. at 10-12.
On April 11, 2022, the undersigned held an evidentiary hearing on Defendant's Motion to Suppress. See Doc. 505; Doc. 508 (Transcript) (hereinafter, "Tr."). Mr. Elburki was present and represented by counsel, S. Chase Higinbotham. Id. The Government was represented by Assistant United States Attorney Bruce Rhoades. Id. At the evidentiary hearing, five witnesses testified: (1) Brian Steen, (2) Dustin Sweet, (3) Nicholas Mittag, (4) Timothy Trost, and (5) Matthew Vaccaro. Id. And fifteen exhibits were admitted into evidence. Id.; see also Doc. 506. An additional oral argument was held on June 29, 2022. Docs. 528, 530.
II. FINDINGS OF FACT
Based on the evidence adduced at the evidentiary hearing, the undersigned submits the following findings of fact:
The Springfield Stop
1. On December 19, 2018, Officer Brian Steen with the Springfield, Missouri Police Department ("SPD") observed a black Chevy Impala speeding. Tr. at 6-7, 24. According to the officer's handheld laser speed detection device, the Impala was traveling forty-eight miles per hour, but the speed limit was thirty-five. Tr. at 7, 24-27.
After twenty-five years with SPD, Officer Steen retired in 2021. Tr. at 5-6. During his employment with SPD, Officer Steen received training about, among other things, traffic stops, utilizing a handheld laser speed detection device, vehicle searches, and arrests. Tr. at 6-7.
2. At 4:19 p.m., Officer Steen initiated a traffic stop of the Impala, and the vehicle pulled into a Break Time gas station and parked at a gas pump. Tr. at 8-9, 24, 26-27; Gov't Ex. 1 at 16:18:01 - 16:18:22. He contacted the driver, later identified as Justin Ramirez, who provided a Missouri identification card and advised that his girlfriend, April Witt, had rented the vehicle. Tr. at 9-10, 25, 27; Gov't Ex. 1 at 16:18:40 - 16:19:46. Mr. Ramirez advised Officer Steen that he did not have a valid driver's license. Tr. at 9, 25; Gov't Ex. 1 at 16:18:40 - 16:19:46.
The Break Time gas station is located on private property. Tr. at 11, 27.
Government's Exhibit 1 is the video recorded by Officer Steen's dashcam. Tr. at 3-5, 13, 34-35. The Court's timestamp references in the video are taken from the time displayed in white at the top of the video.
Ms. Witt was not in the vehicle when it was stopped. Tr. at 10.
3. Officer Steen returned to his vehicle to run Mr. Ramirez's information through his computer and through police dispatch on the radio. Tr. at 10, 25; Gov't Ex. 1 at 16:20:05 - 16:20:48. He discovered Mr. Ramirez had an active arrest warrant for driving while suspended. Tr. at 10, 27; Gov't Ex. 1 at 16:27:15 - 16:27:39, 16:29:05 - 16:29:28. Pursuant to the warrant, Officer Steen went back to the Impala and arrested Mr. Ramirez. Tr. at 10-11, 33; Gov't Ex. 1 at 16:35:23 - 16:36:25. At 4:36 p.m., Mr. Ramirez told law enforcement that Ms. Witt was on her way to collect the vehicle. Gov't Ex. 1 at 16:36:37 - 16:36:45, 16:37:09 - 16:37:11, 16:37:31 - 16:37:40.
4. Mr. Ramirez also suggested that the passenger could drive the vehicle. Tr. at 11, 30. Officer Steen placed Mr. Ramirez in the back of the patrol vehicle and went to speak with the vehicle's sole passenger, who was later identified as Defendant. Tr. at 11; Gov't Ex. 1 at 16:37:53 - 16:38:05, 16:38:41 - 16:38:45. Officer Steen found Defendant slumped over in the passenger's seat. Tr. at 11, 30. According to Officer Steen, Defendant's eyes were glassed over, his conversation was not tracking, and he appeared confused. Tr. at 11. Defendant said he was "not feeling well." Tr. at 11; Gov't Ex. 1 at 16:38:59 - 16:39:02. When asked if was on anything, Defendant said he took medication for ulcers, which were bothering him. Tr. at 11, 30; Gov't Ex. 1 at 16:39:00 - 16:39:01, 16:39:24 - 16:39:27. Based on his training and experience, Officer Steen believed Defendant had consumed a controlled substance and was "a little strung out." Tr. at 11-12; Gov't Ex. 1 at 16:41:48 - 16:41:54. At that time, Officer Steen was "very concerned" about allowing Defendant to drive the vehicle. Tr. at 12.
5. Defendant called someone he identified as April Witt who said, at approximately 4:39 p.m., she was waiting for a ride. Gov't Ex. 1 at 16:39:07 - 16:39:10, 16:40:36 - 16:40:38. The individual on the phone also indicated Defendant could drive the vehicle. Gov't Ex. 1 at 16:39:14 - 16:39:19. Officer Steen could not verify it was Ms. Witt on the phone. Gov't Ex. 1 at 16:40:24 - 16:40:33.
6. Officer Steen returned to his vehicle and asked Mr. Ramirez if he would like Defendant to drive the car. Tr. at 27; Gov't Ex. 1 at 16:41:41 - 16:41:46. Mr. Ramirez responded, "That's alright." Tr. at 27, 30; Gov't Ex. 1 at 16:41:46 - 16:41:48. Although the person on the phone had also approved Defendant driving the vehicle, Officer Steen did not believe it was safe for Defendant to do so. Tr. at 29-30, 33-34, 36-37; Gov't Ex. 1 at 16:39:14 - 16:39:19, 16:43:45 - 16:43:50, 17:03:57 - 17:04:03, 17:06:46 - 17:06:53. Officer Steen shared his concerns with Mr. Ramirez, who seemed to agree with the officer. Tr. at 36-37; Gov't Ex. 1 at 16:42:31 - 16:42:33, 16:43:50 - 16:43:51.
Mr. Ramirez told Officer Steen that he thought Defendant "looked sick" based on "the way he was acting" and "the way he was looking." Gov't Ex. 1 at 16:42:31 - 16:42:33. Later, Officer Steen said Defendant "doesn't look like he's well," and Mr. Ramirez responded, "I know. Yeah, I know." Gov't Ex. 1 at 16:43:49 - 16:43:51. Also, during a phone call with an individual he claimed was Ms. Witt, Mr. Ramirez said Defendant was "like sick or something." Gov't Ex. 1 at 16:46:41 - 16:46:43.
7. Officer Steen asked Mr. Ramirez if there was anything illegal in the car and whether he could search the car. Tr. at 31; Gov't Ex. 1 at 16:41:58 - 16:42:10. Mr. Ramirez initially said he did not mind if the officer searched the car, but ultimately denied permission because it was "not [his] rental," and he only "had [the car] for like 20 seconds." Tr. at 31-32; Gov't Ex. 1 at 16:42:10 - 16:43:23.
8. At 4:43 p.m., Mr. Ramirez told law enforcement that Ms. Witt should arrive "any time." Gov't Ex. 1 at 16:43:24 - 16:43:27. At 4:46 p.m., Mr. Ramirez called Ms. Witt. Gov't Ex. 1 at 16:46:10 - 16:47:07. After the call, Mr. Ramirez told law enforcement that Ms. Witt was on her way. Gov't Ex. 1 at 16:47:09 - 16:47:13. At 4:53 p.m., Mr. Ramirez again stated Ms. Witt should be arriving "any time," and "she doesn't live that far way." Gov't Ex. 1 at 16:53:20 - 16:53:25. At 5:03 p.m., Mr. Ramirez called Ms. Witt again, and she said it would be fifteen to twenty minutes before she arrived. Gov't Ex. 1 at 17:03:24 - 17:03:30.
9. Officer Steen decided to tow the vehicle because Break Time's business had been disrupted for about an hour, Mr. Ramirez had been arrested, Defendant did not appear well enough to drive, and after waiting nearly an hour, Ms. Witt had not arrived. Tr. at 11-14, 23-24, 29, 33-34; Gov't Ex. 1 at 17:03:45 - 17:04:03; Gov't Ex. 11. During his twenty-five years with SPD, Officer Steen towed "many cars in the same situation," and he considered it a "normal situation" to order a tow. Tr. at 13. His decision to tow the vehicle was not a pretext to search the vehicle. Tr. at 13. According to Officer Steen, SPD officers conduct an inventory search when towing a vehicle to document its contents. Tr. at 14-15, 34. At law enforcement's request, Defendant, who was not in custody and was advised that he was free to leave, exited the vehicle and sat on a curb near the convenience store. Tr. at 13-14, 19, 30-31; Gov't Ex. 1 at 17:04:25 - 17:05:10.
Government's Exhibit 11 is SPD's "Limits of Authority," which "establish guidelines for arrest, search, and seizure decisions by Springfield Police Officers in order to assure that they are made in a manner consistent with federal and states['] laws, and constitutional guidelines." Gov't Ex. 11 at 1. Therein, officers are "guided by the following basic principles," which include an inventory search. Id. at 5. An inventory search is "an administrative exception and may not be used as a pretext for a criminal search. Id. An inventory shall be routinely conducted on all motor vehicles impounded by this department." Id.
Officer Steen testified the hair on the back of his head stood up when Mr. Ramirez, an unlicensed driver operating a vehicle he did not rent and who had an active arrest warrant, stated he would not consent to a search, but he was unsure of the vehicle's contents. Tr. at 13, 31.
10. At approximately 5:07 p.m., law enforcement began inventorying the vehicle's contents. Gov't Ex. 1 at 17:07:03. The officers found, among other things, a white backpack behind the driver's seat containing two large bags of a crystalized substance believed to be methamphetamine, a smaller bag with a "brownish crystalized substance," several small bags with white residue, a small package containing what appeared to be tobacco or mushrooms, $2,760 in cash, a gun wedged under the front passenger's seat, a gallon can of acetone in the trunk, and six "very odd small magnets" behind the driver's seat near where the white backpack was located. Tr. at 15-22; Gov't Ex. 1 at 17:07:03 - 17:31:46; Gov't Exs. 4, 7, 9, 12. After the recovery of suspected controlled substances, a woman identifying herself as Ms. Witt arrived at approximately 5:25 p.m. Gov't Ex. 1 at 17:25:00 - 17:25:08.
During his testimony, Officer Steen did not recall Ms. Witt arriving at the scene. Tr. at 12, 33.
11. Officer Steen took Defendant into custody after the officers found the first two bags of methamphetamine. Tr. at 19, 36. Subsequent to their arrest, Defendant and Mr. Ramirez were transported to the Greene County Jail. Tr. at 39-40, 43. While at the jail, Defendant fell asleep and was unable to be woken up. Tr. at 40-41. Defendant was then transported to a hospital for medical attention. Tr. at 40-41. While at the hospital, Defendant told law enforcement and medical professionals that Mr. Ramirez threw drugs into his lap when the vehicle was pulled over, and he ingested the drugs to avoid going to jail. Tr. at 41-44.
The Kansas City Stop
12. On January 5, 2019, Kansas City, Missouri Police Department ("KCPD") Officers Mathew Vaccaro and Timothy Trost were assigned to the East Patrol Division, which encompassed an Express Stop located at 5712 Independence Avenue in Kansas City, Missouri. Tr. at 50-55, 79. The Express Stop is a convenience store with gas pumps and a car wash in the same parking area. Tr. at 54-55, 80. Law enforcement had "continuous problems" with narcotics sales and usage at the Express Stop. Tr. at 79-80.
The Kansas City stop was initiated late in the evening on January 5, 2019 and carried into January 6, 2019. Tr. at 51, 81. According to Officer Vaccaro it was "cold enough" outside on January 5 that his partner "had asked for her heavy coat." Tr. at 85; See Gov't Ex. 2 at 11:32:48 - 11:32:51 p.m.
Officer Vaccaro has been employed with KCPD for seven years. Tr. at 79.
In January 2019, Officer Trost had been a KCPD officer for approximately ten years. Tr. at 59.
13. A KCPD narcotics detective informed Sergeant Billy VonWolf that patrol officers should be on the lookout for a black Chevy Avalanche. Tr. at 69-72. Sergeant VonWolf then directed patrol officers to look for the vehicle. Tr. at 71-72. Officers also learned the vehicle had been within a car wash bay at the Express Stop for an extended period of time. Tr. at 73.
14. Officer Vaccaro and his partner, Officer Sidenstick, initially observed Defendant standing in front of a black Chevy Avalanche parked in a car wash bay at the Express Stop. Tr. at 77, 81-82, 99. Officer Vaccaro pulled his vehicle behind Defendant's and observed the Avalanche's bed was filled with "miscellaneous items" or "junk" piled above the bed rails. Tr. at 82-83, 97; Gov't Ex. 2 at 11:29:42 - 11:29:47 p.m.
Government's Exhibit 2 is comprised of seven videos related to the Kansas City stop. See Tr. at 3-5; Gov't Ex. 2. Unless otherwise noted, the undersigned's citation to "Gov't Ex. 2" refers to the video identified as "5788@20190105232445."
15. Officers Vaccaro and Sidenstick exited their vehicle as Defendant walked from the front of the vehicle to the driver's side and approached the officers. Tr. at 82-83; Gov't Ex. 2 at 11:29:51 - 11:29:55 p.m. Due to the heavy window tint, Officer Vaccaro asked Defendant if anyone else was in the vehicle. Tr. at 83, 98; Gov't Ex. 2 at 11:29:55 - 11:29:56 p.m. Defendant said there was not. Tr. at 83, 98; Gov't Ex. 2 at 11:29:56 - 11:29:58 p.m. Although the officers did not ask Defendant to do so, he voluntarily opened both doors on the driver's side of his vehicle. Tr. at 83, 98; Gov't Ex. 2 at 11:29:58 - 11:30:03 p.m.
16. As Defendant approached the officers and opened his vehicle's doors, Officer Vaccaro observed a silver knife on Defendant's person attached to his front pants pocket area. Tr. at 83, 99; Gov't Ex. 2 at 11:30:06. When Defendant appeared to be reaching for the area of the knife, Officer Vaccaro verbally instructed him to not grab for the knife and to place his hands behind his back. Tr. at 83, 99; Gov't Ex. 2 at 11:30:06 - 11:30:11 p.m. Defendant complied, and Officer Vaccaro removed the knife from Defendant's person. Tr. at 83-84, 102; Gov't Ex. 2 at 11:30:11 - 11:30:16 p.m. Defendant began to squat down at the waist, and according to Officer Vaccaro, appeared "very nervous," so they detained him to further their investigation. Tr. at 83-84, 99-100; Gov't Ex. 2 at 11:30:10 - 11:30:13, 11:39:43 - 11:40:00 p.m.
17. The officers escorted Defendant to the front of their vehicle to ascertain his name and identifiers and to continue their investigation. Tr. at 57, 84; Gov't Ex. 2 at 11:30:33 - 11:30:40, 11:31:44 - 11:32:15 p.m. Defendant asked to shut his vehicle's doors, but he was not permitted to do so. Tr. at 98; Gov't Ex. 2 at 11:30:34 - 11:30:35 p.m. Despite law enforcement's instructions, Defendant repeatedly turned around to look at his vehicle. Tr. at 84-85; Gov't Ex. 2 at 11:30:50 - 11:30:55, 11:31:24 - 11:31:29 p.m. Defendant also asked the officers a number of questions, did not comply with verbal commands, and appeared nervous. Gov't Ex. 2 at 11:30:05 - 11:42:30 p.m. Officer Vaccaro informed Defendant that someone called 911 complaining about noise coming from a black truck and complaining about an individual rifling through a trash dumpster. Tr. at 95-96; Gov't Ex. 2 at 11:30:14 - 11:30:16, 11:32:20 - 11:32:32, 11:38:56 - 11:39:01, 11:39:54 - 11:39:59 p.m. The officer testified at the suppression hearing, however, that no such complaints had, in fact, occurred. Tr. at 95-96.
18. Officer Trost arrived at the car wash and walked around Defendant's vehicle several times. Tr. at 57-59, 68, 85; Gov't Ex. 2 at 11:30:21 - 11:33:02 p.m. He observed, in plain view, a clear bag containing a crystal-like substance inside the driver's side door panel that had been previously opened by Defendant. Tr. at 58, 73, 85-86; Gov't Ex. 2 at 11:38:38 - 11:40:49 p.m. Based on his training and experience, Officer Trost believed the substance was methamphetamine. Tr. at 59-60. He advised Officer Vaccaro and Sergeant VonWolf of the suspected methamphetamine, and Officer Vaccaro arrested Defendant for possession of a controlled substance. Tr. at 60, 74, 86; Gov't Ex. 2 at 11:40:26 - 11:42:10 p.m.
19. Officer Trost escorted Defendant to the officer's patrol wagon and searched his person incident to arrest. Tr. at 51-52, 60-63, 86. Officer Trost recovered a clear bag full of a crystal-like substance, a clear bag containing a black colored rock, a large sum of cash, and a cell phone. Tr. at 60-64; Gov't Exs. 13, 17.
20. Simultaneously, Officer Vaccaro and Sergeant VonWolf inventoried Defendant's vehicle prior to tow. Tr. at 87; Gov't Ex. 2 at 11:46:16 - 11:51:28 p.m. According to Officer Vaccaro, it is KCPD's standard policy to inventory and tow a vehicle when officers recover suspected controlled substances in the vehicle. Tr. at 89-90; see also Gov't Ex. 14.
The video identified as 5788@20190105232445 in Government's Exhibit 2 concludes at 11:51:28 p.m. It appears the other videos in the Government's Exhibit 2 do not include additional dashcam video of the inventory search beyond 11:51:28 p.m.
21. Pursuant to KCPD's policy, officers can tow a vehicle "When a vehicle is stopped on private . . . property and the operator (arrestee) is placed under custodial arrest, the members will allow the operator (arrestee) time to arrange for the vehicle's timely removal unless . . . The vehicle will be placed on an 'investigative hold.' " Gov't Ex. 14 at A-5 - A-6. Officers are required to inventory the contents of the vehicle being towed, and any containers contained therein. Id. at B-1 - B-2.
22. In addition, detectives oftentimes have the officers place a hold on the vehicle while the detectives obtain a search warrant. Tr. at 90; Gov't Ex. 14 at C-1 - C-2. During their inventory search of Defendant's vehicle, officers recovered, among other things, approximately $28,000 in cash from the glove box and a Taurus G2C .9mm pistol. Tr. at 87-88, 101; Gov't Exs. 13, 15, 17.
III. DISCUSSION
As best the Court can discern, Defendant raises three arguments in support of his Motion to Suppress. See Doc. 439. First, Defendant argues the Springfield stop was improper because he was not permitted to drive the vehicle in which he was a passenger away from the scene after the vehicle's driver was arrested. Id. at 10-11. Second, Defendant contends the search of his vehicle in Kansas City was improper because it exceeded the scope of a permissible search. Id. at 11-12. Accordingly, he contends law enforcement's decision to tow his vehicle from both stops was illegal. Id. at 10-11. Defendant argues law enforcement prolonged both encounters "beyond the reasonable time necessary" to effectuate the "mission" of the original stops. Id. at 10-14.
The Fourth Amendment provides "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . " U.S. Const. amend. IV. To protect citizens from unwarranted government intrusion, the Fourth Amendment generally requires law enforcement to obtain a judicial search warrant based on probable cause before searching private property. See, e.g., Shade v. City of Farmington, 309 F.3d 1054, 1059 (8th Cir. 2002). The United States Supreme Court has held "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions." Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).
A. The Springfield Stop
1. Standing to Challenge the Stop and Subsequent Search
"Fourth Amendment rights are personal rights which . . . may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (citations omitted); Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) (citation omitted). "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas, 439 U.S. at 134, 99 S.Ct. 421 (citing Alderman, 394 U.S. at 174, 89 S.Ct. 961). To seek relief for an unconstitutional search, a person must have a cognizable Fourth Amendment interest in the place searched, a concept often referred to as "standing." Byrd v. United States, — U.S. —, 138 S. Ct. 1518, 1530, 200 L.Ed.2d 805 (2018).
When evaluating Fourth Amendment standing, the Court must determine if an aggrieved individual "had a legitimate expectation of privacy in the area searched or the item seized." United States v. Bettis, 946 F.3d 1024, 1027 (8th Cir. 2020) (citation omitted). The defendant bears the burden of establishing by a preponderance of the evidence that he has standing. Id. To meet this burden, a defendant must show (1) "he himself asserted a subjective expectation of privacy in the place searched or object seized," and (2) "his subjective expectation of privacy is objectively reasonable." United States v. Douglas, 744 F.3d 1065, 1069 (8th Cir. 2014) (citation and internal quotations omitted). A defendant who fails to prove a sufficiently close connection to the relevant places or objects searched has no standing to claim that they were searched illegally. United States v. Anguiano, 795 F.3d 873, 878 (8th Cir. 2015). When determining if a defendant has standing, the Eighth Circuit has considered factors including:
ownership, possession and/or control of the area searched or item seized; historical use of the property or item; ability to regulate access; the totality of the circumstances surrounding the search; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of the expectation of privacy considering the specific facts of the case.Id. (quoting United States v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994)).
"As a general matter, mere passengers . . . who have no ownership rights in a vehicle lack standing to challenge a search of the vehicle." United States v. Lindsey, 43 F.4th 843, 847 (8th Cir. 2022) (citing United States v. Russell, 847 F.3d 616, 618 (8th Cir. 2017)). A passenger who asserts "neither a property nor a possessory interest" in a vehicle lacks a reasonable expectation of privacy in that vehicle. United States v. Davis, 943 F.3d 1129, 1132 (8th Cir. 2019). Here, Defendant has not asserted any ownership or possessory interest in the rental vehicle driven by Mr. Ramirez.
Defendant has also not asserted any ownership or possessory interest in the items within the vehicle.
A passenger without an ownership or possessory interest in a vehicle may, however, "still contest the lawfulness of his own detention and seek to suppress evidence as the fruit of his illegal detention." Lindsey, 43 F.4th at 847 (quoting United States v. Green, 275 F.3d 694, 699 (8th Cir. 2001)). Further, a passenger "may suppress evidence found in a vehicle when an unreasonably extended traffic stop causes the search." Davis, 943 F.3d at 1132. Defendant's motion suggests his detention was unlawful due to lack of probable cause to stop the vehicle in which he was a passenger, and because the stop was unreasonably extended. Doc. 439, at 1, 9-10,13-14.
a. Probable Cause for Traffic Stop
"A traffic stop constitutes a seizure under the Fourth Amendment and must be supported by either reasonable suspicion or probable cause." United States v. Foster, 15 F.4th 874, 877 (8th Cir. 2021), cert denied, — U.S. —, 142 S. Ct. 1434, 212 L.Ed.2d 413 (2022); see also United States v. Houston, 548 F.3d 1151, 1153 (8th Cir. 2008). The more rigorous standard of probable cause exists when the totality of the circumstances justifies a belief that a crime has been committed and the person seized committed it. Houston, 548 F.3d at 1153. Most warrantless traffic stops are justified under the Fourth Amendment based on probable cause to believe that a traffic violation occurred. See, e.g., Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); United States v. Lyons, 486 F.3d 367, 371 (8th Cir. 2007). "[A]ny traffic violation, no matter how minor, is sufficient to provide an officer with probable cause." Foster, 15 F.4th at 877 (citing United States v. Hanel, 993 F.3d 540, 543 (8th Cir. 2021)). However, law enforcement must have "a reasonable basis for believing that the driver has breached a traffic law." Id. (citation omitted).
Officer Steen observed a vehicle that was speeding. Additionally, his handheld radar gun reflected the vehicle was traveling at forty-eight miles per hour when the speed limit was thirty-five. Because he observed a traffic violation, Officer Steen had probable cause to stop the vehicle driven by Mr. Ramirez. Officer Steen's testimony was credible and was not controverted by any evidence. Based on the totality of the circumstances, the initial Springfield traffic stop was supported by probable cause, and thus, Defendant's associated detention as a passenger was lawful. Accordingly, the undersigned recommends a finding that Defendant lacks standing to challenge the Springfield traffic stop.
Although not briefed in his motion, Defendant's reply maintains the video from Officer Steen's dashcam reveals the "radar was not even active at the time of the stop." Doc. 469 at 1. However, Officer Steen utilized a handheld radar gun - not the vehicle's dash radar - to determine Mr. Ramirez was speeding. See Tr. at 7, 24-26.
b. Prolonged Encounter
Defendant also contends the Springfield traffic stop was improperly prolonged. Doc. 439 at 13-14. "Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'—to address the traffic violation that warranted the stop, and attend to related safety concerns." Rodriguez v. United States, 575 U.S. 348, 354, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2014) (citation omitted); see also Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion) ("The scope of the detention must be carefully tailored to its underlying justification."). "Because addressing the infraction is the purpose of the stop, it may 'last no longer than is necessary to effectuate th[at] purpose.' " Rodriguez, 575 U.S. at 354, 135 S.Ct. 1609 (citation omitted).
Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
"[O]fficers may continue the stop while they complete tasks related to the stop, such as checking the vehicle's registration and insurance, checking the occupants' names and criminal histories, preparing the citation, and asking routine questions." United States v. Allen, 43 F.4th 901, 907 (8th Cir. 2022) (citing United States v. Murillo-Salgado, 854 F.3d 407, 415 (8th Cir. 2017)). If an officer encounters legitimate complications in completing the routine tasks of the traffic stop, the duration of the stop may be extended. Murillo-Salgado, 854 F.3d at 415. However, officers "may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Rodriguez, 575 U.S. at 355, 135 S.Ct. 1609. "A reasonable suspicion is 'some minimal, objective justification' for suspicion beyond an 'inchoate hunch.' " Davis, 943 F.3d at 1132 (quoting United States v. Fuse, 391 F.3d 924, 929 (8th Cir. 2004) (cleaned up)). The Court evaluates reasonable suspicion to extend a traffic stop based on the totality of the circumstances. Id. (citation omitted).
Officer Steen did not unreasonably extend the stop beyond the time required to complete the stop's original purpose. Once the vehicle was stopped, Mr. Ramirez informed Officer Steen he did not have a valid driver's license. He also told the officer that the vehicle was rented by his girlfriend, Ms. Witt, who was on her way to collect the vehicle. Officer Steen immediately returned to his vehicle to run Mr. Ramirez's information on his computer and over the radio. He determined Mr. Ramirez had an outstanding arrest warrant and promptly arrested him. Mr. Ramirez's arrest on his pending warrant properly extended the initial traffic stop. Further, because Defendant appeared impaired and not able to safely drive the vehicle from the scene, the stop was also properly extended for an alternative driver to arrive on the scene.
Once arrested, Mr. Ramirez told Officer Steen that Ms. Witt was on her way, she didn't live far away, and that she should arrive at any time. Nonetheless, officers waited approximately an hour for Ms. Witt's arrival to remove the vehicle before ultimately ordering a tow and inventorying the vehicle's contents. Based on the totality of the circumstances, law enforcement's actions were proper and not unreasonable. See, e.g., United States v. Soderman, 983 F.3d 369, 374 (8th Cir. 2020) (holding a driver's suspended license "justifiably extended the lawful scope of the traffic stop because of [the defendant's] legal inability to remove the vehicle from the scene and the consequential need for a licensed driver or a tow truck to do so."). The reasons for the delay were the suspended license of Mr. Ramirez, the active arrest warrant for Mr. Ramirez, and the time spent waiting for the alternative driver to arrive on the scene. The officers did not unreasonably prolong the traffic stop.
Ms. Witt did not arrive until approximately an hour after the traffic stop was initiated.
Curiously, and discussed infra, section III(A)(2), Defendant also argues law enforcement did not wait long enough for a secondary driver to arrive. See Doc. 469 at 10-11 ("If the Court finds . . . Justin Ramirez granted permission for . . . April Witt, or the Defendant, to take the vehicle from the scene either by driving it . . . or contracting with a tow service to have it removed, then the decision to impound the vehicle was illegal."). It is unclear how Defendant can simultaneously argue his stop was improperly prolonged, thus conveying him Fourth Amendment standing, while also arguing law enforcement did not provide ample time for a secondary driver to arrive. Regardless, the officers did not improperly prolong the encounter. Thus, Defendant has failed to demonstrate that he has Fourth Amendment standing to challenge the initial stop of the vehicle or its subsequent search. The undersigned recommends denying Defendant's motion to suppress related to the Springfield stop. Regardless, the undersigned has also made recommendations concerning the merits of the Springfield traffic stop and vehicle search below.
If the Court finds Defendant has standing, the undersigned has addressed the merits of the Springfield stop and recommends Defendant's motion to suppress be denied on those grounds. See section II(A)(2).
2. Inventory Search Pursuant to Tow Policy
Defendant also argues the SPD officers improperly inventoried the vehicle. Doc. 439 at 4, 12-14. "[P]olice may exercise discretion to impound a vehicle, 'so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.' " United States v. Petty, 367 F.3d 1009, 1012 (8th Cir. 2004) (quoting Colorado v. Bertine, 479 U.S. 367, 375, 107 S.Ct. 738, 93 L.Ed.2d 739, (1987)). "It is well-settled law that a police officer, after lawfully taking custody of an automobile, may conduct a warrantless inventory search of the property to secure and protect vehicles and their contents within police custody." United States v. Williams, 777 F.3d 1013, 1015 (8th Cir. 2015) (citation and internal quotations omitted). "An inventory search is reasonable if it is conducted according to standardized police procedures, because doing so vitiates concerns of an investigatory motive or excessive discretion." United States v. Green, 929 F.3d 989, 992 (8th Cir. 2019) (citation and internal quotations omitted).
"The purpose of an inventory search is to protect the owner's property while it remains in police custody, as well as protect police against claims or disputes over lost or stolen property and from potential dangers." United States v. Nevatt, 960 F.3d 1015, 1020 (8th Cir. 2020) (citation omitted). Law enforcement officers, however, may not use an inventory search as a "ruse for general rummaging in order to discover incriminating evidence." Id. "The central question in evaluating the propriety of an inventory search is whether, in the totality of the circumstances, the search was reasonable." United States v. Kennedy, 427 F.3d 1136, 1143 (8th Cir. 2005).
The Eighth Circuit has observed the inventory search exception to the warrant requirement often involves distinct police actions, including, but not limited to, the decision to impound or tow a vehicle and the decision to search the vehicle's contents. See United States v. Arrocha, 713 F.3d 1159, 1162 (8th Cir. 2013). Regarding the decision to tow or impound, the police may take protective custody of a vehicle when its occupants have been arrested even if the vehicle is lawfully parked and poses no public safety hazard. Petty, 367 F.3d at 1012 (citation omitted). "[P]olice may exercise discretion to impound a vehicle, 'so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.' " Id. (quoting Bertine, 479 U.S. at 375, 107 S.Ct. 738).
The "ultimate touchstone of the Fourth Amendment is 'reasonableness.' " Kansas v. Glover, — U.S. —, 140 S. Ct. 1183, 1191, 206 L.Ed.2d 412 (2020) (citation omitted). Consequently, even when law enforcement does not adhere to standardized procedures, an inventory search is considered reasonable so long as the search is not pretextual. United States v. Morris, 915 F.3d 552, 557 (8th Cir. 2019) (quoting United States v. Taylor, 636 F.3d 461, 464 (8th Cir. 2011)). To show pretext, there must be something else "to suggest the police raised the inventory-search banner in an after-the-fact attempt to justify a simple investigatory search for incriminating evidence." Nevatt, 960 F.3d at 1020 (citation omitted). Thus, when officers do not strictly adhere to standard procedure or policy, the Court must determine if law enforcement's conduct was reasonable under the totality of the circumstances. See Morris, 915 F.3d at 557.
In the instant matter, neither party introduced SPD's relevant tow policy. Instead, the Government introduced an exhibit entitled "Limits of Authority." Gov't Ex. 11 at 5. Specific to inventorying an impounded vehicle's contents, it states: "Inventory: This is an administrative exception and may not be used as a pretext for a criminal search. An inventory shall be routinely conducted on all motor vehicles impounded by this department." Id.
Although not admitted as evidence, the undersigned is aware of its existence. In another matter tried in this district, United States v. Michael Nevatt, the Government attached SPD's relevant tow policy to its suggestions in opposition to a motion to suppress. No. 16-00150-01-CR-W-DGK (Doc. 381-1). Said policy permits, in relevant part, SPD officers to tow a vehicle from private property when "[t]he driver is arrested and cannot arrange for timely removal of the vehicle," No. 16-00150-01-CR-W-DGK (Doc. 381-1 at 4). When towing a vehicle, officers shall complete the inventory section of a Tow Report. No. 16-00150-01-CR-W-DGK (Doc. 381-1 at 2-3). When inventorying the vehicle, officers must document all property, and they may open "[c]losed containers, whose contents are unascertainable from examining the containers' exterior, found in the vehicle during inventory" to inventory the containers' contents. No. 16-00150-01-CR-W-DGK (Doc. 381-1 at 3). It remains unclear why the Government failed to introduce this policy during the suppression hearing.
The Government's failure to introduce SPD's relevant tow policy is not dispositive of this issue. Instead, a court may also look to the officer's testimony related to the tow policy. See United States v. Williams, 39 F.4th 1034, 1044 (8th Cir. 2022) (citing United States v. Lowe, 9 F.3d 43, 46 (8th Cir. 1993) (finding testimony explaining the department's inventory search policy was sufficient to establish existence of said policy)). Here, Officer Steen testified he decided to tow the vehicle driven by Mr. Ramirez because Break Time's business had been disrupted for an hour, Mr. Ramirez had been arrested and could not drive the vehicle, Defendant did not appear well enough to drive, and Ms. Witt had not appeared after waiting nearly an hour. He stated his decision to tow was not a pretext for searching the vehicle, and no evidence was introduced to the contrary. In his twenty-five years with SPD, Officer Steen towed "many cars in the same situation," and he considered it a "normal" situation for a tow. He testified that when a tow is requested, SPD officers "have to do an inventory search" to "document any valuables in the vehicle." His testimony was credible and well-founded in his experience with the SPD. When viewing the totality of the circumstances, the undersigned finds Officer Steen's actions were reasonable.
Additionally, the undersigned would note his testimony is consistent with SPD's tow policy, which permits officers to tow a vehicle private property when "[t]he driver is arrested and cannot arrange for timely removal of the vehicle." No. 16-00150-01-CR-W-DGK (Doc. 381-1 at 4).
In his reply, Defendant argues the "claim that [he] was unwell and unable to drive was unsubstantiated, in that [he] was sitting down inside the vehicle, [and] the stop occurred in broad daylight." Doc. 469 at 1. He also contends "no test was performed to determine [his] wellness," and the audio of the interaction "does not suggest any impairment or pain on [his] part." Id. Although the relevance of Defendant's physical position or the time of day is unclear to the undersigned, Officer Steen's observations of Defendant support his finding that Defendant could not drive the vehicle from the scene. The officer testified Defendant's eyes were glassed over, his conversations were not tracking, and he appeared confused. Accordingly, it was reasonable for Officer Steen to conclude Defendant was under the influence of a controlled substance and could not safely drive the vehicle. See, e.g., Kuessner v. Wooten, 987 F.3d 752, 756 (8th Cir. 2021); United States v. Rehkop, 96 F.3d 301, 303, 305 (8th Cir. 1996) (holding officers properly impounded a defendant's vehicle when he "appeared to be under the influence of narcotics" as his "eyes were bloodshot and glassy and he appeared to have a delayed reaction to the statements made to him.").
As discussed supra, Officer Steen's observations of Defendant were shared by Mr. Ramirez who also acknowledged that Defendant appeared sick.
Based on the totality of the circumstances, law enforcement's decision to tow Mr. Ramirez's vehicle was reasonable. Further, and based on the testimony of Officer Steen, the inventory search of Defendant's vehicle was conducted pursuant to standardized police procedures. Accordingly, the undersigned recommends a finding that the evidence seized from the vehicle should not be suppressed pursuant to the inventory search exception and any post-search statements made by Defendant should not be suppressed as they are not fruit of the poisonous tree.
B. The Kansas City Stop
1. Reasonable Suspicion
A motor vehicle and its occupants may be subject to investigative Terry stops. See United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (recognizing the Fourth Amendment applies to seizures of persons, including brief investigatory stops of vehicles). An investigative stop of a vehicle will not violate the Fourth Amendment if law enforcement has reasonable suspicion that the vehicle or its occupants were involved in a previously committed crime, are currently involved in criminal activity, or are about to commit a crime. United States v. Bell, 183 F.3d 746, 749 (8th Cir. 1999); see also United States v. Hensley, 469 U.S. 221, 227, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Mora-Higuera, 269 F.3d 905, 909 (8th Cir. 2001) (citation omitted) ("There is no requirement that there be a traffic violation" to conduct a Terry stop). The United States bears the burden of establishing a stop complied with the Fourth Amendment. See United States v. Adler, 590 F.3d 581, 583 (8th Cir. 2009).
"A reasonable suspicion is a 'particularized and objective' basis for suspecting the person who is stopped" was involved in a previously committed crime, is currently involved in criminal activity, or is about to commit a crime. United States v. Bustos-Torres, 396 F.3d 935, 942 (8th Cir. 2005). Whether the facts known to the officer amounted to an objective and particularized basis for a reasonable suspicion of criminal activity at the time of the stop is determined in light of the totality of the circumstances. Id. Factors that may reasonably lead an experienced officer to investigate include the time of day or night, the location of the suspected party, and the party's behavior when they become aware of the police officer's presence. United States v. Quinn, 812 F.3d 694, 697-98 (8th Cir. 2016). The level of suspicion required for reasonable suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence and is obviously less than proof necessary for probable cause. Glover, 140 S. Ct. at 1187.
"Because it is a less demanding standard, reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause." Id. at 1188 (citation and internal quotations omitted). The concept of reasonable suspicion, like probable cause, is not "readily, or even usefully, reduced to a set of legal rules." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citation omitted). Rather, "[t]he standard depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Glover, 140 S. Ct. at 1188 (citation and internal quotations omitted) (emphasis in original).
The reasonable suspicion inquiry allows officers to draw inferences and rely on probabilities. Id. at 1188-90. Further, "[i]n forming reasonable suspicion, an officer may rely on information provided by other officers and all the information known to a team of officers involved in the investigation." Cronin v. Peterson, 982 F.3d 1187, 1193 (8th Cir. 2020) (citation omitted). "When a team of law enforcement officers is involved in an investigation, the issue is whether all the information known to the team provided 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant' the investigative stop." United States v. Winters, 491 F.3d 918, 921 (8th Cir. 2007) (quoting United States v. Robinson, 119 F.3d 663, 666-67 (8th Cir. 1997)). The collective knowledge among law enforcement officers does not need to "be based solely upon the information within the knowledge of the officer on the scene" so long as there is "some degree of communication" among the officers. United States v. Edwards, 891 F.3d 708, 711-12 (8th Cir. 2018) (citation omitted). By way of example and relevant here, the Eighth Circuit has upheld stops where responding officers knew nothing except investigators wanted a vehicle stopped. See, e.g., United States v. Robinson, 664 F.3d 701, 703-04 (8th Cir. 2011); United States v. Jacobsen, 391 F.3d 904, 906-07 (8th Cir. 2004).
Defendant was observed at the car wash by the Express Stop where there had been continuous issues with drug sales and usage. Based on communication from other officers, Officers Vaccaro and Trost were asked to keep an eye out for a black Chevy Avalanche. They were also informed it had been parked in a car wash bay for an extended period of time. Late at night, Defendant was observed outside a black Chevy Avalanche in a car wash bay with items visibly piled in the bed of the truck. Accordingly, Officer Vaccaro initiated a Terry stop of Defendant and his vehicle. Upon contact, he observed a knife on Defendant's waist and instructed him to not reach for it when it appeared he may be attempting to do so. At that point, the officer properly handcuffed Defendant to further the officers' investigation.
In its briefing, the Government provided extensive information about Defendant's actions at the Express Stop earlier on the evening of January 5, 2019. Doc. 455 at 3-5. This information, however, was not accompanied by evidence. See id. Moreover, during the suppression hearing, the Government did not produce testimony related to Defendant's actions prior to Officer Vaccaro's initial contact with him. See generally Doc. 408.
Officer Vaccaro told Defendant they stopped him because they received complaints against him. Gov't Ex. 2 at 11:30:14 - 11:30:16, 11:32:20 - 11:32:32, 11:38:56 - 11:39:01, 11:39:54 - 11:39:59 p.m. Although no such complaints occurred, this information is not dispositive of Defendant's motion as the officers are not required to be truthful with suspects. See, e.g., Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (finding police deception is "relevant" but "insufficient" to render a confession involuntary); United States v. Spivey, 861 F.3d 1207, 1214 (11th Cir. 2017) ("The Fourth Amendment allows some police deception[.]"). The Court also notes that Defendant did not raise an argument based on the non-existence of complaints. See Docs. 439, 469.
Based on the totality of the circumstances, including the collective knowledge of law enforcement, Officer Vaccaro had reasonable suspicion that criminal activity was afoot. See also United States v. Carr, 674 F.3d 570, 575 (6th Cir. 2012) (recognizing car in a car wash bay not being washed at night in a known meeting place of drug dealers created reasonable suspicion). Accordingly, the Government has met its burden of establishing the Terry stop complied with the requirements of the Fourth Amendment, and any argument to the contrary should be rejected. For these reasons, the undersigned recommends a finding that reasonable suspicion supported the officer's decision to approach Defendant.
2. Plain View and Automobile Exceptions to the Warrant Requirement
The plain view exception to the warrant requirement allows a warrantless search if the Government shows "(1) the officer lawfully arrived at the location from which he or she views the object, (2) the object's incriminating character is immediately apparent, and (3) the officer has a lawful right of access to the object itself." United States v. Saddler, 19 F.4th 1035, 1041-42 (8th Cir. 2021) (quoting United States v. Arredondo, 996 F.3d 903, 907 (8th Cir. 2021)). An item's incriminating nature is considered "immediately apparent" if the officer has "probable cause to associate the property with criminal activity." United States v. Lewis, 864 F.3d 937, 944 (8th Cir. 2017) (quoting United States v. Craddock, 841 F.3d 756, 759 (8th Cir. 2016)).
The officers' interaction with Defendant was initiated as a lawful Terry stop. Defendant then voluntarily, and without direction, opened his vehicle's driver's side front and rear doors. Upon Officer Trost's arrival at the car wash during the Terry stop, he walked around the outside of the vehicle several times and observed a bag containing what he believed was methamphetamine in the driver's side door pocket which remained open. This evidence was plainly viewed by Officer Trost standing from the exterior of the vehicle. Since the car wash was open for business to the public, Officer Trost was lawfully present and could make visual observations of the interior of the vehicle from his vantage point within the car wash bay. See United States v. Bynum, 508 F.3d 1134, 1137 (8th Cir. 2007) (observing that neither probable cause or reasonable suspicion is necessary for an officer to look through a window or open door of a vehicle so long as he or she has a right to be in close proximity to the vehicle); United States v. Beatty, 170 F.3d 811, 814 (8th Cir. 1999).
Based on the officer's training and experience, the incriminating nature of the bag containing what he believed to be methamphetamine was immediately apparent and provided him with lawful access to seize the bag of suspected drugs. Once the bag of suspected methamphetamine was discovered, the officers then had probable cause to search the remainder of the vehicle under the automobile exception to the Fourth Amendment. See United States v. Dunn, 928 F.3d 688, 693 (8th Cir. 2019) (holding that when an officer views contraband in plain sight through an automobile's window, he has probable cause to search the vehicle without a warrant under the automobile exception). For these reasons, the undersigned recommends a finding that the officer's search of Defendant's vehicle was supported by probable cause and proper under plain view and automobile exceptions to the Fourth Amendment's warrant requirement.
3. Inventory Search Pursuant to Tow Policy
Assuming arguendo, the officers did not have probable cause to search the vehicle pursuant to the plain view and automobile exceptions to the warrant requirement, their search was nonetheless reasonable pursuant to Kansas City's tow policy. As mentioned supra, "[P]olice may exercise discretion to impound a vehicle, 'so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.' " Petty, 367 F.3d at 1012.
KCPD's tow policy permits officers to tow vehicles in certain instances. See Gov't Ex. 14. Relevant to this matter, the policy states: "When a vehicle is stopped on private . . . property and the operator (arrestee) is placed under custodial arrest, the members will allow the operator (arrestee) time to arrange for the vehicle's timely removal unless . . . The vehicle will be placed on an 'investigative hold.' " Id. at A-5 - A-6. Pursuant to the KCPD policy, officers are required to inventory the contents of the vehicle being towed. Id. at B-1.
Defendant was arrested for possession of a controlled substance. Pursuant to KCPD's standard policies, law enforcement ordered a tow of Defendant's vehicle and inventoried its contents. The undersigned finds Officer Vaccaro's testimony to be unrefuted and credible. Moreover, no evidence was presented that the officers impounded Defendant's vehicle or conducted an inventory search as a pretext to search the vehicle. Further, there is no evidence suggesting the officers' decision to tow was in bad faith or for the sole purpose of conducting a criminal investigation. Based on the totality of the circumstances, the officers' actions were reasonable. Accordingly, the undersigned recommends a finding that the evidence seized from Defendant's vehicle as a result of the Kansas City stop should not be suppressed pursuant to the inventory search exception.
Further, Officer Vaccaro testified that "more times than not" an investigative hold is placed on vehicles when suspected controlled substances are found.
4. Prolonged Encounter
Defendant also argues officers improperly prolonged the Kansas City stop. Doc. 439 at 12-14. This argument is without merit. As discussed supra, officers may extend an otherwise lawful interaction if they have the "reasonable suspicion ordinarily demanded to justify detaining an individual." Rodriguez, 575 U.S. at 355, 135 S.Ct. 1609. "A reasonable suspicion is 'some minimal, objective justification' for suspicion beyond an 'inchoate hunch.' " Davis, 943 F.3d at 1132. The Court evaluates reasonable suspicion to extend a traffic stop based on the totality of the circumstances. Id. (citation omitted).
Here, the officers escorted Defendant to the front of their vehicle to obtain his name and other identifying information. These tasks are related to the stop and are lawful. See Allen, 43 F.4th at 907 (holding officers may continue the stop while they "check[ ] the occupants' names and criminal histories . . . and ask[ ] routine questions."). While Officers Vaccaro and Sidenstick spoke with Defendant, Officer Trost discovered in plain view the crystal-like substance believed to be methamphetamine located inside Defendant's driver's side door. Discovery of the suspected methamphetamine provided, at a minimum, reasonable suspicion that criminal activity was afoot thus justifying Defendant's continued detention. Accordingly, the undersigned recommends a finding that the officers did not unlawfully prolong the Kansas City stop.
IV. CONCLUSION
Based on the foregoing, it is
RECOMMENDED that the Court, after making an independent review of the record and applicable law, enter an order DENYING Defendant's Motion to Suppress (Doc. 439).
Counsel are reminded they have fourteen days in which to file any objections to this Report and Recommendation. A failure to file and serve objections by this date shall bar an attack on appeal of the factual findings in this Report and Recommendation except on the grounds of plain error or manifest injustice.