United States v. Anderson
| Decision Date | 21 February 2023 |
| Docket Number | 22-10006-JWB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. TOMMY L. ANDERSON, SR., Defendant. |
| Court | U.S. District Court — District of Kansas |
This matter is before the court on Defendant's motion to suppress evidence. (Doc. 24.) The government has filed a response. (Doc. 28.) The court held two evidentiary hearings on the motion: the first on January 24, 2023, and the second on January 30. The court took the matter under advisement at the conclusion of the hearings and is now prepared to rule. For the reasons stated herein, Defendant's motion is DENIED.
Defendant's motion to suppress challenges the lawfulness of six related searches by Wichita Police Department (WPD) officers. The first of these was a warrantless search of a Cadillac DeVille after Defendant fled from police and left the car parked on a residential street. The second and third searches involved Defendant's residence on Millwood Street in Wichita and were conducted pursuant to search warrants. The fourth search involved a warrantless search of a Chrysler 200 shortly after Defendant drove the car to a repair shop and was arrested. The last two searches involved residences on S. Holyoke Street in Wichita used by Defendant and were conducted pursuant to search warrants.
On April 8, 2021, WPD Officer Jeremy Gray was conducting a drug investigation focused on Defendant. Gray was part of the WPD's Special Investigation Bureau/Community Response Team (SBI/CRT), whose responsibilities included investigating street level drug crimes. Gray had been informed by an anonymous source that Defendant was selling drugs from his residence and from the trunk of his Cadillac. Gray had engaged in periodic surveillance of what he believed to be Defendant's residence at 1116 S. Millwood, Unit No. 4, in Wichita. For some period prior to April 8, 2021, Gray had also checked on activity at the residence by means of a “pole cam” - a camera installed on a utility pole outside the residence. Gray could monitor the pole cam from his cell phone and was doing so on the afternoon of April 8 with WPD Officer Clayton Van Daley in a marked patrol car a short distance from the Millwood residence.
Gray was aware on April 8 that Defendant's driver's license had been suspended. He also knew Defendant had previously been charged with narcotics offenses, had been convicted of felonies in a federal RICO case, and was believed by police to be a Crips gang member. Gray was familiar with Defendant and knew what he looked like. Gray was also familiar with two vehicles frequently seen at the residence: a silver Cadillac DeVille, which was registered to Defendant's brother and which Gray had seen Defendant frequently driving, and a black Chrysler 200 registered to Mary Dean, who was Defendant's girlfriend and who also lived at the Millwood residence. During his period of surveillance, Gray saw other vehicles frequently come to the Millwood residence, after which the occupants would enter the residence for a brief period and then leave, in a manner Gray considered to be consistent with drug trafficking.
At about 1:00 p.m. on April 8, Gray was monitoring the pole cam from his phone when he saw Defendant leave the Millwood residence wearing a black shirt, dark jeans, and black athletic shoes with an “N” on the side. Gray could see that Defendant got in the Cadillac and drove away to the north. Gray and Van Daley started out in their patrol car intending to intercept Defendant, with the intention of making a traffic stop based on Defendant's suspended driver's license and, if possible, obtaining evidence of drug distribution. The officers located the Cadillac within a short time and followed it on Kellogg Avenue until the Cadillac started to exit on Hillside Street. The incident was recorded on video by Gray and Van Daley's “body cams.” Gray turned on the patrol car's emergency lights in an attempt to stop the Cadillac. Defendant briefly continued on Hillside Street before turning right at the first side-street (Lewis) and pulling over to the curb as the officers pulled in behind him. Gray and Van Daley got out of their vehicle. Gray testified he could see Defendant looking at him in the Cadillac's side view mirror and that Defendant appeared to be reaching or moving downward. As the officers started to approach the Cadillac, it suddenly accelerated away from the curb and took off.
The officers got back in their vehicle, turned on the siren, and pursued. As they did so, they saw Defendant commit more than five moving violations, with the violations called out on the radio by Van Daley as they occurred. At that point the officers had probable cause to believe Defendant committed the felony offense of fleeing and eluding under K.S.A. § 8-1568(b)(1)(E). Defendant's violations included failing to stop at numerous stop signs and failing to signal turns. The officers were called off the pursuit by a supervisor due to the high speeds and/or danger involved, and they lost sight of the Cadillac. Gray and Van Daley continued driving through the neighborhood where they had last seen the vehicle. A pedestrian indicated the direction the car had gone, and the officers turned and drove that way, but the car was not in sight. After a minute or two, Gray said he was turning off his body cam video, thinking the pursuit was over, and continued driving. Just as he turned the camera off, the Cadillac came into the officers' view parked by the curb on a side street. Van Daley's body cam at that point shows Van Daley getting out of the patrol car and approaching the Cadillac. He identified it as the car they had pursued. He pulled out his handgun, which had a flashlight attachment. The Cadillac windows were tinted, making it somewhat difficult to see inside. The passenger side rear window was down about an inch or two. Van Daley shined his light through the gap in the window and confirmed that no one was inside the car. He did not insert the light into the window opening. A nearby witness indicated that the driver, whose description matched Defendant's, had run off.
The officers radioed for a K9 unit to conduct a dog sniff of the vehicle exterior. WPD Officer Daniel Gumm and his K9 “Bane” arrived at the scene within fifteen or twenty minutes. Bane was trained and certified in detection of various drugs, including marijuana. Gumm gave Bane a “find it” command and the dog immediately began circling the car and sniffing, beginning near the front of the car on the driver's side. Bane raised up once or twice without touching the car, and then momentarily touched his paws on the driver's door as he raised up again. He lowered himself and moved backwards towards the rear driver's side door. Bane quickly became focused on the rear door, sniffed at the door handle, and then sat down next to it, staring intently at it and wagging his tail. The evidence showed this was the dog's method of indicating it had located the source of a controlled substance. Gumm opened the rear driver's side door to allow Bane in the interior of the car. The dog again indicated near the front center console of the car between the front seats. When Gumm attempted to open the driver's door, he found it was locked. He reached through the open rear driver's side door and lifted the “plunger” lock on the driver's door. When he opened the driver's door, the car's alarm went off. A search of the car's interior disclosed a marijuana roach in the center console, a marijuana bud, and an empty digital scale box. A set of keys was also found but they were not the keys to the vehicle. Later that day, after his shift was over, Gray was monitoring the pole cam on his phone and saw that Defendant returned to the Millwood residence and was still wearing the same clothes he had been wearing earlier.
After the April 8 incident, Gray wanted to get a search warrant for Defendant's Millwood residence. The WPD's standard practice called for Gray to explain the facts to his supervisor, Sgt. Thode, who would review the matter for probable cause and discuss it with the District Attorney's (“DA”) office. Gray talked to Thode about getting a search warrant for the Millwood residence based on the items found in the Cadillac. Thode contacted an attorney in the DA's office. The attorney conveyed to Thode that obtaining a search warrant for the articles of clothing that Defendant was seen wearing at the time of the car chase was an option. As a result, Gray prepared an application for a search warrant to look for the following items in the Millwood residence:
(Govt. Exh. 8) The application described the residence detailed the anonymous complaint about Defendant's distribution of drugs from the residence and car, and set forth Defendant's criminal history (including convictions for possession of marijuana, carrying an unconcealed weapon, conspiracy, and two counts of distribution of cocaine base). It also described Gray's investigation and surveillance, including his findings that the Cadillac was registered to Alford Anderson (at another address) and the Chrysler was registered to Mary Dean at the Millwood address. Dean's criminal history was alleged to include unlawful possession of marijuana and sale of opiates. It described the circumstances and pursuit of Defendant on April 8 and alleged that Gray and Van Daley saw more than 10 traffic violations by Def...
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