ROBERT E. LARSEN, Magistrate Judge.
Before the court is defendant's motion to suppress evidence seized from his vehicle on February 28, 2011, and any subsequent statement on the ground that the evidence and statements are the fruit of an illegal stop. I find that defendant was lawfully stopped by Officer Moore, he was lawfully arrested, his car was lawfully searched, and his
In the middle of the night on February 28, 2011, Officer Kenneth Moore stopped defendant for speeding. Before defendant stopped his car, Officer Moore observed defendant reaching below the driver's seat and center console which caused the officer to suspect that defendant was attempting to hide or retrieve something. Once defendant was stopped and provided identification, the officer learned that defendant was driving with a revoked license and he was placed under arrest. The car was searched before towing and a loaded 9mm semi-automatic handgun was recovered under the driver's seat. Officer Moore commented about the finding, and defendant said, "That's my wife's, it ain't mine." The gun was found to be stolen. Once defendant was advised of his
On May 23, 2011, an indictment was returned charging defendant with possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendant filed the instant motion to suppress (document number 54) arguing that he was stopped without reasonable suspicion. The government filed a response (document number 63) arguing that (1) the officer had reasonable suspicion to stop defendant because he was speeding, (2) his car was lawfully searched pursuant to the automobile exception to the warrant requirement and because it was being inventoried prior to towing, and (3) the pre-
I held a hearing on April 9, 2012, during which the government appeared by Assistant United States Attorneys Sara Holzschuh and Christina Tabor. The defendant was present, represented by Assistant Federal Public Defender William Raymond. The following exhibits were admitted:
The government called Officer Kenneth Moore as a witness. Defendant testified. A transcript of the suppression hearing was filed as document number 68.
Based on the evidence presented at the hearing, I make the following findings of fact:
2. Officer Moore looked in his rear view mirror as he was traveling on the ramp to southbound Highway 71 to make sure he could safely merge (Tr. at 9-10). He saw headlights in the far left lane (the passing lane) approaching at what appeared to be a high rate of speed (Tr. at 10, 14, 60). The headlights "were coming way too fast." (Tr. at 11). There were no other cars around at the time (Tr. at 13).
3. Officer Moore is radar certified (Tr. at 12). In the training to become radar certified, he was taught to first observe a vehicle and notice that it is traveling at a high rate of speed prior to putting a laser or radar on the vehicle (Tr. at 12). In his experience using a radar, he has observed vehicles and used radar well over 200 or 300 times (Tr. at 12). Officer Moore's guesses as to the speed of a vehicle are normally within 5 miles per hour of the speed confirmed by radar (Tr. at 13).
4. When Officer Moore was on the ramp, he was going 41 miles per hour (Tr. at 14). By the time he merged onto the highway, he was traveling 55 miles per hour, which is the speed limit on Highway 71 (Tr. at 14, 15, 60-61). The speed limit is marked by signs both before and after the 75th Street entrance ramp (Tr. at 16-18). Officer Moore sped up so that he was going to same speed as the vehicle — a gray Chrysler 300; he looked at his speedometer and saw that he and the other car were going 75 miles per hour (Tr. at 14, 44, 60). He decided to stop the driver (Tr. at 44). When Officer Moore was going 75 miles per hour, the other car passed him (Tr. at 14). Officer Moore was surprised the car passed him since he was in a marked police car; in his experience it is not normal for a driver to do that (Tr. at 43). At that time, he pulled behind the suspect car and turned on his emergency lights, spot light, and siren (Tr. at 14-15, 18, 19).
5. After Officer Moore turned on his lights and siren behind the speeding car, he observed the driver leaning forward and going from side to side in the vehicle (Tr. at 18, 44). The spot light on the police car illuminates the inside of the subject's car so the officer can better see what is going on inside the car (Tr. at 19-20, 44). The driver did not begin to slow down immediately; but after an unusual length of time, he hit his brakes (Tr. at 19). Defendant pulled over before he reached 85th Street (Tr. at 57).
6. The length of Highway 71 on which defendant was traveling while being pursued by Officer Moore was bordered by shoulders on both the right and the left (Tr. at 21). Typically a car being pulled over will pull over to the shoulder on the right side of the road
7. Because defendant was making movements in his car before pulling over, Officer Moore became concerned — it was his experience that a person making such movements is either trying to hide something or trying to retrieve some sort of weapon (Tr. at 22). As he pursued the car, Officer Moore notified dispatch of his location and the vehicle description (Tr. at 22). He also requested back up (Tr. at 22).
8. Once defendant pulled over on the left shoulder of the highway, Officer Moore exited his patrol car, stood behind his door, and ordered defendant to put his hands outside the windows so both hands could be seen (Tr. at 22). Officer Moore had his gun drawn (Tr. at 22-23). Defendant put his left hand out the window, and Officer Moore had to continue giving him commands to put both hands out of the window (Tr. at 23). Defendant was hesitant to put his right hand out of the window (Tr. at 23).
9. Defendant put his right hand out of the window and at that point became compliant (Tr. at 23). Officer Moore approached defendant's vehicle with his gun pointed toward the ground (Tr. at 23). He looked inside the vehicle to see if anything was on defendant's lap or near his lap that might resemble a weapon (Tr. at 23). He did not see anything, so he holstered his weapon (Tr. at 23-24). The following colloquy occurred:
(P. Ex. 2-3, 4; Tr. at 45-46).
10. Officer Moore did not understand what defendant was trying to tell him because everything was broken up and he was not making a lot of sense (Tr. at 24, 46). Defendant said he was coming from the IRS, which did not seem plausible in the middle of the night (Tr. at 24). Officer Moore also noticed an odor of marijuana coming from the car (Tr. at 27). A back-up unit arrived, and defendant handed Officer Moore a Missouri identification but not a driver's license (Tr. at 24). The top of the i.d. card said, "Non-Driver's License" (Tr. at 25).
11. Officer Moore explained to Officer Dummit why a back-up was called — Officer Moore does not normally call for back up unless something happens that causes a heightened alert (Tr. at 46). He told Officer Dummit that defendant was "barreling" down Highway 71 at a high rate of speed and was making movements in the car that were not normal and he appeared to be trying to hide a weapon or some form of contraband (Tr. at 46, 49).
12. The back-up officers watched defendant while Officer Moore went to his car and ran a computer check (Tr. at 24, 49). The back-up officers did not have their guns drawn (Tr. at 25, 46).
13. Officer Moore learned through the computer check that defendant's driver's license had been revoked (Tr. at 25, 50). He also learned that defendant had previously been known to assault a law enforcement officer and to commit larceny (Tr. at 26, 50). Officer Moore notified the other officers that defendant was driving while revoked (Tr. at 50). He asked defendant to exit his vehicle (Tr. at 26). He told defendant that he was being arrested for driving while revoked, and Officer Moore also mentioned that he could smell marijuana (Tr. at 50). Defendant seemed not to understand what Officer Moore was talking about (Tr. at 50).
14. Defendant had something in his hand as he got out of his car (Tr. at 27). Officer Moore told defendant to leave everything on the seat of the car, but he did not listen (Tr. at 27). Defendant wanted to talk and turn around; he was telling Officer Moore that his prior assault conviction was 25 years ago but Officer Moore did not know when it had occurred (Tr. at 27, 50). Officer Moore had to tell defendant to put his hands behind his back (Tr. at 27). Defendant continued to fiddle with his right hand which was holding a wallet (Tr. at 27). Officer Moore took the wallet and placed it on top of the car and then put defendant in handcuffs (Tr. at 27).
15. Officer Moore asked defendant if there was anything in the car that the officers needed to know about (Tr. at 28). He asked this question for his own safety and that of the other officers — he could easily put his hand where a gun is hiding during a search and it could go off; needles or razor blades used in the drug business could stick or cut a searching officer (Tr. at 33). Defendant alluded to the fact that there was a joint somewhere, although he did not actually say where it was (Tr. at 28, 51). Defendant tried to tell Officer Moore that the car belonged to defendant's wife (Tr. at 51).
16. Officer Moore collected defendant's wallet after he had been placed under arrest (Tr. at 27-28). Inside the wallet was a clear plastic baggie of marijuana that defendant had been trying to stuff into his wallet when he was getting out of the car (Tr. at 28).
17. Officer Moore conducted an inventory search of the car since defendant was under arrest and the car was going to be towed (Tr. at 28). Police department policy provides that a car on the left-hand side of the roadway and too close to the lane of traffic cannot be left there (Tr. at 29). Such a car much be towed because it would have caused a road hazard to rush-hour traffic later that morning (Tr. at 29). When a car is towed, an inventory search must be conducted in order to protect the department and to protect the person's property (Tr. at 29).
18. Officer Moore looked under the driver's seat and saw the barrel of a handgun (Tr. at 28). He made the gun safe by taking the magazine out — the magazine was loaded with six rounds (Tr. at 33). Officer Moore was upset because he had asked defendant if there was anything in the car he needed to know about, and he believed this was a safety issue (Tr. at 33). He testified that it was a "little unnerving" when he found "the barrel of a gun sticking in my face when I go underneath a seat" (Tr. at 52). He said to defendant, "You know I asked you if there was anything in the goddamn car. There's a freaking gun." (Tr. at 52). Defendant said, "Well it's probably my wife's." (Tr. at 35, 52).
19. Officer Moore made the statement to defendant about the gun because he was upset (Tr. at 34, 35, 52). He did not make the comment to defendant regarding the firearm for the purpose of seeking out testimony (Tr. at 34). Because of the firearm, Officer Moore feared that some other item could be in the vehicle that could cause him or the other officers harm (Tr. at 34).
20. Officer Moore went back to his patrol car and called in the serial number from the handgun (Tr. at 35). He learned through a computer check that the gun had been stolen from Leavenworth, Kansas, in 2003 (Tr. at 35). Officer Moore also learned that defendant had a felony conviction, so in addition to being under arrest for driving without a license, he was arrested for being a felon in possession of a firearm (Tr. at 35).
21. Defendant testified as follows:
Defendant got on Highway 71 from 27th Street to head home (Tr. at 88, 89). When he got to the area of 75th Street, a cop threw his spotlight on defendant (Tr. at 89). Defendant looked at his speed — he was going 55 — and because he was not speeding, he "just continued to go on to do what I was doing." (Tr. at 89, 91). "It was really bright and I look over at him like, you know, I didn't know what was the reason. And so I ignored it." (Tr. at 91).
When defendant was asked whether he braked, he said, "I don't know which one — what point this is. It's when he just — after he had just spotlighted me or not. But I had to, I mean, he did, and so I tapped my brakes just to see what he wanted there then. I just continued on. I didn't — I wasn't doing anything wrong, so I didn't have no reason to just, you know, until he stopped me or whatever." (Tr. at 92). Defendant did not brake until the officer turned on his spotlight (Tr. at 97).
Eventually the officer got behind defendant and turned his lights and siren on; but at first he was only spotlighting defendant (Tr. at 89, 92). Defendant waited until he got past a little bridge to pull over because he noticed that his car would have been halfway on the shoulder (Tr. at 92-93).
The police are always sitting in that area and so he knows not to speed in that area (Tr. at 90). In addition, because his license was revoked, he was not going to speed because everyone knows the police are always in that area at night (Tr. at 90).
22. I do not find defendant's testimony credible, to the extent it differs from that of Officer Moore.
a. After watching the dashcam DVD, defendant agreed that his brake lights came on before the "white light" came on, and that he had his foot on the brake for over two seconds (Tr. at 97-101). He still insisted that the spot light was on before he braked and before the "white light" came on (Tr. at 98-99). However, the dashcam DVD clearly shows defendant braking for a long period of time before the spotlight was turned on. This contradicts his testimony.
b. Defendant said that although the dashcam DVD showed him braking for more than two seconds before the spot light came on, he was not applying pressure to his brakes (Tr. at 101). He just hit his brakes "enough to slow down and see what was going on, because he was going 41 miles an hour. I don't, I mean, so, of course, I was going faster than he was." (Tr. at 101). The dashcam DVD clearly shows defendant going substantially faster than Officer Moore. It also shows that when defendant's brake lights were on, he was slowing down significantly. This contradicts his testimony.
c. After insisting during his hearing testimony that he had not been speeding, defendant agreed that the dashcam DVD includes the following:
Defendant said he "didn't mean to use that language" (Tr. at 103). The dashcam DVD shows that when defendant was told he was pulled over for going "way fast," he said, "Well, I know." This contradicts his testimony.
d. Defendant knew he was driving illegally that night because his license had been revoked (Tr. at 103). Defendant is aware that because of his previous felony convictions he is facing a prison sentence of 15 years to life on this federal charge (Tr. at 106).
e. In the dashcam DVD, defendant can be seen leaning over to the right while he was being pursued by Officer Moore. The spotlight reflected on his ball cap making it appear white, and he can be seen leaning over making his head a significant distance from the headrest. Once defendant pulled over, the spot light showed him sitting with his head even with the headrest. This completely corroborates Officer Moore's testimony of what defendant was doing from the time he passed the patrol car until the time he finally stopped on the shoulder of the highway.
Defendant argues that he was unlawfully stopped:
An officer's observation of a traffic violation, however minor, gives the officer probable cause to stop a vehicle, even if the officer would have ignored the violation but for a suspicion that greater crimes are afoot.
Defendant's version of the facts has proven to be not credible. The dash cam DVD clearly shows (1) that Officer Moore was traveling over 40 miles per hour when he was on the entrance ramp, (2) the speed of the patrol car is not constantly displayed, (3) the patrol car continued to speed up as it merged onto the highway, (4) defendant's car was traveling significantly faster than the patrol car as defendant passed the patrol car, (5) defendant braked for several seconds and his car slowed down substantially as a result, (6) despite the two seconds of braking, defendant's car never did get behind the patrol car or even with it — after passing Officer Moore, defendant's car at all times remained in front of the patrol car, (7) defendant at no time got into the right lane despite the fact that there were no cars in that lane and the law requires one being stopped by police to pull off the road to the right, (8) instead of appearing to be looking for a place to pull over while being pursued by a police car, defendant was leaning over to the right for several seconds, (9) defendant did not pull over until he sat back upright in the car, and (10) when the officer told him he was stopped for speeding, defendant said, "Well, I know." Based on that evidence, I find that the officer lawfully stopped defendant for speeding and was justified in calling for back up and asking defendant to put his hands outside the window before the officer approached.
The evidence presented at the hearing clearly contradicts defendant's version of the events (including the allegation that he was not speeding before he was stopped by Officer Moore) in his motion and in his testimony. The evidence supports Officer Moore's testimony that based on his pacing defendant's vehicle, he could tell defendant was speeding. Officer testimony regarding pacing of vehicles is reliable evidence of speeding in absence of radar use, especially in a case like this one where the dash cam evidence corroborates the officer's testimony.
Because defendant was speeding in the presence of Officer Moore, his stop was lawful and his motion to suppress on that basis should be denied.
A reasonable investigation during a traffic stop "may include asking for the driver's license and registration, requesting the driver to sit in the patrol car, and asking the driver about his destination and purpose."
In this case defendant was unable to provide a driver's license, and Officer Moore learned through a computer check that defendant's license had been revoked. Because defendant was driving with a revoked license, Officer Moore had probable cause to arrest him.
The Supreme Court has recognized an exception to the warrant requirement for searching a vehicle lawfully impounded by law enforcement officers.
The impounding of a vehicle passes constitutional muster so long as the decision to impound is guided by a standard policy — even a policy that provides officers with discretion as to the proper course of action to take — and the decision is made "on the basis of something other than suspicion of evidence of criminal activity."
Law enforcement may search a lawfully impounded vehicle to inventory its contents without obtaining a warrant.
When the driver of a car is arrested, the police may impound the vehicle and conduct an inventory search.
The evidence establishes that defendant was lawfully arrested and his car was towed pursuant to police policy which provides for towing when a car is improperly parked and when the occupants are taken into custody, as was the case here (P. Ex. 9). Therefore, defendant's motion to suppress on this basis should be denied.
Finally, defendant argues that any statement that the gun belonged to his wife is inadmissible because he was not advised of his
Under the public safety exception to the
In
Liddell argued that the public safety exception did not apply because, at the time the officers asked the question that prompted his incriminating admission, there was no longer an objectively reasonable need to protect the police or the public from any immediate danger because the revolver had been found, Liddell was handcuffed and under the control of the two officers, and there were no passengers or nearby members of the public who could have accessed or been harmed by the contents of Liddell's car.
The Eighth Circuit disagreed and held that the public safety exception to
Here Officer Moore was upset about finding a gun pointed at him when he checked under the driver's seat of the car. His statement to defendant ("You know I asked you if there was anything in the goddamn car. There's a freaking gun.") is the equivalent of the statement at issue in the
Based on all of the above, I find that (1) Officer Moore lawfully stopped defendant for speeding, (2) defendant was lawfully arrested because he had been driving with a revoked license, (3) the search of defendant's car was a lawful inventory search, and (4) Officer Moore's statement which elicited an incriminating response from defendant was made pursuant to the public safety exception to the
RECOMMENDED that the court, after making an independent review of the record and the applicable law, enter an order denying defendant's motion to suppress evidence.
Counsel are advised that, pursuant to 28 U.S.C. § 636(b)(1), each has 14 days from the date of this report and recommendation to file and serve specific objections.
