Opinion
Criminal Action No. 00-20022-01-KHV
May 1, 2000
MEMORANDUM AND ORDER
On February 2, 2000, a grand jury returned a two-count indictment which charged Robert Ray Charles with knowingly possessing cocaine base and a firearm after having been convicted of a felony. Police discovered the contraband during a search of defendant's vehicle. This matter is before the Court on defendant's Motion To Suppress Evidence (Doc. #14) filed March 30, 2000. On April 17, 2000, the Court held an evidentiary hearing. For reasons set forth below, defendant's motion is overruled.
Factual Background
On August 24, 1999, a customer at Circuit City in Lenexa, Kansas asked a store clerk for a stereo and camcorder. The store clerk presented one of each item, and the customer agreed to take them — no questions asked. The customer attempted to purchase the items with a check but William VonWolf a Circuit City employee, believed that the customer had forged the signature on the check and he declined to accept it. VonWolf later told officers that he was certain that the customer was not the individual pictured on the identification which he presented. The customer took the check and identification and left the store. VonWolf observed that the customer carried the check and identification in a white envelope and that he left in a Lincoln automobile with Missouri license plate 614 FXW. VonWolf called the Lenexa Police Department and reported the description of the customer, the car he had left in, and the license plate number. VonWolf also told police that the customer signed the check in the name of Shannon Watkins and presented a drivers license for the same individual.
Shortly thereafter, police discovered a Lincoln automobile with the same license plate at a nearby Best Buy store in Lenexa. Officer James Rader asked VonWolf to go to Best Buy to identify the individual who had attempted to pass the check at Circuit City. Inside Best Buy, Officer Pat Hinkle of the Lenexa Police Department saw defendant, who matched the description of the Circuit City customer, pass a $1,840.00 check to an employee at Best Buy. Officer Hinkle observed that defendant signed the check in the name of Shannon Watkins. Officer Hinkle relayed this information to officers outside the store. As defendant left the store, VonWolf positively identified him as the customer who had attempted to pass the check at Circuit City.
Officers Rader and David Ogilvie approached defendant and asked him to identify himself. Defendant identified himself as Calvin Stallings but indicated that he did not have any identification. The officers asked defendant if he had signed a check at Circuit City in the name of Shannon Watkins. Defendant denied that he had tried to purchase goods at Circuit City.
Officers Rader and Ogilvie saw several Best Buy receipts inside a white envelope on the driver's seat of defendant's car. Neither officer had seen defendant place the envelope in the car. Officer Ogilvie grabbed the envelope and found a Missouri driver's license for Calvin Stallings and a check with Circuit City as payee. Shortly after Officer Ogilvie grabbed the envelope, Officer Redding obtained defendant's consent to search the vehicle. Defendant told Officer Redding that he could search the vehicle but that it did not belong to him. Officer Ogilvie then handed the envelope and its contents to Officer Redding, who handed them to Officer Rader, who looked at the checks and placed defendant under arrest. During the search of defendant's car, officers discovered a black briefcase which contained a firearm and cocaine base.
Defendant seeks to suppress evidence of the firearm and cocaine base.
Analysis
I. Investigative Detention of Defendant
Defendant first claims that the officers did not have reasonable suspicion of wrongdoing to justify stopping him in the Best Buy parking lot. The Tenth Circuit has set forth the following standards to determine whether an investigative detention is justified:
To determine whether an investigative detention was constitutionally permitted, we must ask both "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 20 (1968). A law enforcement officer may stop and briefly detain a person for investigative purposes "if the officer has a reasonable suspicion . . . that criminal activity `may be afoot." United States v. Sokolow, 490 U.S. 1, 7 (1989). Once the concern that justified the initial stop is dispelled, further detention will violate the Fourth Amendment unless the additional detention is supported by a reasonable suspicion of criminal activity. See United States v. Alarcon-Gonzalez, 73 F.3d 289, 292-93 (10th Cir. 1996). In other words, reasonable suspicion must exist at all stages of the detention, although it need not be based on the same facts throughout.
An officer must be able to point to "specific and articulable facts" to support a finding of reasonable suspicion; an `inchoate and unparticularized suspicion or "hunch'" is insufficient. Terry, 392 U.S. at 21, 27, 88 S.Ct. at 1880, 1883. "Whether . . . an investigative detention is supported by an objectively reasonable suspicion of illegal activity does not depend on any one factor but on the totality of the circumstances." United States v. Soto, 988 F.2d 1548, 1555 (10th Cir. 1993).United States v. Soto-Cervantes, 138 F.3d 1319, 1322 (10th Cir. 1998).
Here, the officers had an objectively reasonable suspicion of illegal activity which permitted them to stop defendant. This suspicion was based on (1) VonWolf s description of the individual at Circuit City and the car and license plate which he had driven, (2) VonWolf's report that the customer was not the individual pictured on the identification which he presented, (3) the fact that defendant signed a check with the same name (Shannon Watkins) as the individual at Circuit City, and (4) VonWolf's positive identification of defendant at Best Buy. Thus the initial stop of defendant was justified. In addition, the scope of the investigative detention was reasonable. After officers stopped defendant, he identified himself as Calvin Stallings. Officers had a reasonable suspicion at that point that defendant had either forged a check in the name of Shannon Watkins see K.S.A. § 21-3710, or obstructed legal process by misidentifying himself to the officers see K.S.A. § 21-3808. For these reasons, defendant's motion to suppress based on his investigative detention is overruled.
II. Search of Defendant's Car
Defendant claims that the officers unlawfully seized from his car a briefcase which contained the firearm and cocaine base which are the subjects of the indictment against him. The government argues that the search of the car was either consensual or incident to a lawful arrest, and was therefore lawful.
A. Consent
The government bears the burden to show that defendant's consent was voluntary. See United States v. Sanchez, 89 F.3d 715, 718 (10th Cir. 1996). To establish that defendant's consent was voluntary, the government must (1) "proffer clear and positive testimony that consent was unequivocal and specific and freely and intelligently given" and (2) "prove that this consent was given without implied or express duress or coercion." Id. at 719 (quoting United States v. McRae, 81 F.3d 1528, 1537 (10th Cir. 1996)). "Consent to search may be voluntary even though the consenting party is being detained at the time consent is given." United States v. Doyle, 129 F.3d 1372, 1377 (10th Cir. 1997). Whether a consent to search is voluntary is a question of fact to be determined from the totality of the circumstances. See United States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993). Relevant factors include "the threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; prolonged retention of a person's personal effects such as identification and plane or bus tickets; a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed place; and absence of other members of the public." United States v. Hill, 199 F.3d 1143, 1148 (10th Cir. 1999) (in context of consensual encounter); see Soto, 988 F.2d at 1557-58 (evaluating similar factors in context of investigative detention). No one factor is dispositive. See Id. at 1557.
Here, the evidence is uncontested that officers confronted defendant in a parking lot of a retail store, that the officers did not brandish any weapons and that the officers did not use aggressive language or tone of voice. Other than the mere presence of the officers, defendant has not shown that the officers attempted to coerce him to consent. Rather, defendant asserts that he did not give consent to search. Officer Redding testified that defendant stated that the car did not belong to him but that Officer Redding could search it. On the other hand, defendant testified that he never consented to the search. Based on the credibility of the witnesses, the Court finds that defendant voluntarily consented to the search of the car. Accordingly, the Court overrules defendant's motion to suppress based on the search of his car.
B. Search of Car As Incident To Lawful Arrest
The government also contends that the car search was justified because it was incident to defendant's arrest. Law enforcement officers ordinarily must obtain a warrant, based on probable cause, before conducting a search. See New York v. Belton, 453 U.S. 454, 457 (1981). The Supreme Court has recognized an exception to this rule where officers conduct a warrantless search incident to a lawful arrest. See Chimel v. California, 395 U.S. 752, 762-63 (1969). The Tenth Circuit has extended this reasoning to the situation where an arrestee was the recent occupant of a vehicle. See United States v. Franco, 981 F.2d 470, 473 (10th Cir. 1992). In Franco, the Tenth Circuit held that the search of defendant's automobile was incident to his arrest because defendant exercised control over his vehicle and its contents at the time of the arrest and during the commission of the offense, and was its immediate occupant. Id.
Defendant claims that his arrest was unlawful because officers unlawfully seized the envelope from his car. "Probable cause to arrest exists when an officer 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. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998). The government claims that even without the envelope, officers had probable cause to arrest defendant for either forgery (K.S.A. § 21-3710) or obstructing legal process (K.S.A. § 21-3808). The Court agrees. Here, the officers had probable cause to arrest defendant for forgery or obstructing legal process based on (1) the information outlined above with respect to reasonable suspicion and (2) the fact that defendant signed two checks as Shannon Watkins, yet identified himself to officers as Calvin Stallings.
The parties dispute whether officers lawfully seized the envelope. Although the question is not critical to the instant motion, the Court finds that Officer Ogilvie properly seized the envelope because he had probable cause to believe that it contained evidence of a crime. See Carroll v. United States, 267 U.S. 132, 149 (1925); see also United States v. Anderson, 114 F.3d 1059, 1065-67 (10th Cir. 1997) (officers had probable cause to conduct warrantless search of automobile gas tank after police had impounded the car and towed it to police headquarters). Even if the envelope seizure was invalid, the Court finds that officers had sufficient independent evidence to establish probable cause for defendant's arrest and thus purge any taint of the alleged unlawful seizure. See United States v. MacDonald, 670 F.2d 910, 915 (10th Cir. 1982).
Although defendant's arrest was lawful, the Court cannot uphold the search of defendant's car as incident to the arrest. In Franco, the Tenth Circuit explained that the Belton rule, which permits a warrantless search incident to an arrest, is based on the rationale that the search prevents the arrestee from reaching for weapons or destructible evidence.See Franco, 981 F.2d at 472. Therefore the scope of such a warrantless search is limited to the person of the arrestee and to any area which the arrestee could reach. See id. "For automobiles this means that if the arrestee is the occupant of an automobile a police officer may, as a contemporaneous incident to the arrest, search the passenger compartment of the automobile." Id.
The government has failed to show that the exception for warrantless searches announced in Belton applies in this case. As an initial matter, the government has failed to show that officers discovered the briefcase in the "passenger compartment" of defendant's vehicle. Moreover, the government has failed to show that defendant was an occupant or recent occupant of the vehicle at the time of his arrest. In Franco, officers arrested defendant in a government truck parked next to his car but defendant moved between the government truck and his car two times during an illegal drug transaction: "the first to obtain a bag of cocaine, and the second time because an unidentified vehicle entered the parking lot." 981 F.2d at 472. Here, defendant was not under surveillance when he exited his vehicle and entered the Best Buy store. In addition, no record evidence establishes how long defendant was in the store before Officer Hinkle observed him. If officers had confronted defendant and arrested him in the store, the search of his car would not have been incident to his arrest. The Court finds that the same rule should apply where after defendant has been absent from his car for a period of time, officers wait until defendant approaches his car before arresting him. See State v. Kelly, 963 S.W.2d 866, 870 (Tex.Ct.App. 1998) (defendant not recent occupant where he had been out of car and inside house for ten to 15 minutes and was arrested at distance from car); State v. Tompkins, 423 N.W.2d 823, 826 (Wisc. 1988) (defendant not recent occupant where he was arrested in tavern after having exited his vehicle 15 minutes earlier); Gauldin v. State 683 S.W.2d 411, 414 (Tex.Ct.App. 1984) (defendant not recent occupant where police approached him inside tavern and led him to parking lot where he was arrested, and where defendant admitted to having driven to bar within the hour), overruled on other grounds, State v. Guzman, 959 S.W.2d 631 (Tex.Ct.App. 1998). The rationale of the Belton exception, i.e. preventing the arrestee from reaching for weapons or destructible evidence, is not promoted in this case. Defendant did not have access to his car at any time after the officers first observed him, through the time of his arrest. Although one of the windows to defendant's car was open, officers did not see defendant throw anything into the car as he approached and defendant was approximately ten feet from the car when officers arrested him. In sum, the Court rejects the government's alternative justification for the search of defendant's car.
IT IS THEREFORE ORDERED that defendant's Motion To Suppress Evidence (Doc. #14) filed March 30, 2000, be and hereby is OVERRULED.