United States v. Keller

• Decision Date: 21 October 1980
• Docket Number: No. 80 CR 194.,80 CR 194.
• Citation: 499 F. Supp. 415
• Court: U.S. District Court — Northern District of Illinois
• Parties: UNITED STATES of America, Plaintiff, v. Thomas KELLER, Defendant.

499 F. Supp. 415

UNITED STATES of America, Plaintiff, v. Thomas KELLER, Defendant.

No. 80 CR 194.

United States District Court, N. D. Illinois, E. D.

October 21, 1980.

James Schweitzer, Asst. U. S. Atty., Thomas P. Sullivan, U. S. Atty., Chicago, Ill., for plaintiff.

Carol Brook, Kathy M. Morris, Federal Defender Program, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

CROWLEY, District Judge.

Defendant, Thomas Keller, has been indicted for violation of 18 U.S.C. §§ 1341 and 1708 for the theft and fraudulent use of certain credit cards. The matter is now before the Court on Keller's motion to suppress evidence.

Chicago Police Officer Kukulka is a Special Operations Group Officer whose primary responsibility involves back-up investigation of non-traffic related crimes. On the morning of April 30, 1978, Officer Kukulka was on duty with a partner in a "high crime" district. He noticed a car in violation of a city ordinance because it had only one license plate. The car was pulled over and Thomas Keller, the driver and sole occupant, was asked to get out and present his driver's license. Keller stepped from the car, but he was unable to produce his driver's license because he had posted it in lieu of bail on a prior traffic citation. He presented that citation to Kukulka. The officer explained, however, that Keller would have to go to the police station on the new traffic offense because a prior traffic citation is not acceptable as bond. The officer then searched Keller and found several credit cards and a social security card bearing names other than Keller's. Keller told Kukulka the cards belonged to a friend, but upon further questioning Keller became evasive.

The officer testified that the search was a protective search and not a full custody search. He didn't remember where he found the cards, but testified that he looked into the wallet to see if the defendant had a gun concealed there. One could treat this testimony as facetious or a deliberate misrepresentation. I choose the latter. Kukulka then told Keller he was under arrest and Miranda rights were read. The car was searched and Keller was taken to the police station where he was issued two traffic tickets for failing to produce a driver's license and failing to display two license plates. It was also then learned that the credit cards had been stolen.

At the suppression hearing, Officer Kukulka testified that it is normal procedure to stop a person driving a car displaying only one license plate and to take drivers to the police station when they are unable to produce a valid driver's license. However, Kukulka also quite candidly testified that he stopped Keller on the technical traffic violation only because he hoped to recover evidence of a more serious crime, since "many times a traffic violation does lead to bigger things." (Tr. 10, 18-21).

In his motion, Keller argues that all evidence derived from the warrantless search of his person should be suppressed for two reasons. First, he claims that his initial stop by the police was invalid because it was purely a pretext to search for other evidence. Second, even if the stop was valid, the police did not have probable cause to make a full custodial arrest until after Keller was searched. Thus, the search was not authorized by United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), as incident to a custodial arrest and further, the search exceeded the permissible scope of a Terry pat-down.

The government has responded that once Keller failed to produce a driver's license, he was subject to custodial arrest. Under Robinson, then, the full search was permissible. In regard to the pretext issue, the government argues that the validity of an arrest should be judged by an objective standard and not by the arresting officer's subjective motives. Thus, since there was a valid basis for a custodial arrest, independent of improper motivations, the arrest and search were proper.

Preliminarily, Officer Kukulka testified and Keller argues that it is not illegal to drive on a prior traffic ticket. Although this practice apparently has no statutory basis, the Illinois Appellate Court has commented on its validity several times. People v. Morrison, 57 Ill.App.3d 468, 15 Ill.Dec. 174, 373 N.E.2d 520 (1978); People v. Cannon, 18 Ill.App.3d 781, 310 N.E.2d 673 (1974); People v. Jordan, 11 Ill.App.3d 482, 297 N.E.2d 273 (1973). Thus, it is an open question whether driving on a prior ticket is sufficient indicia of criminality to justify a full custodial arrest on the principles in People v. Brown, 38 Ill.2d 353, 231 N.E.2d 577 (1967) and People v. Pritchett, 75 Ill. App.3d 127, 30 Ill.Dec. 810, 393 N.E.2d 1157 (1979). Even if it is not sufficient, however, when the police officer elects to transport the driver in the squad car to post bond, then a full search of the driver is permissible. Gustafson v. Florida, 414 U.S. 260, 93 S.Ct. 1494, 36 L.Ed. 177 (1973); People v. Redmond, 73 Ill.App.3d 160, 29 Ill.Dec. 838, 390 N.E.2d 1364 (1979). Since Kukulka told Keller before the search was conducted that he was taking Keller in, the search apparently was permissible. However, as Keller argues, the pretext issue may taint all of Kukulka's actions.

The invalidity of a pretextual arrest was articulated many years ago by the Supreme Court: "An arrest may not be used as a pretext to search for evidence." United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932). This principle has been followed by many courts, United States v. Hellman, 556 F.2d 442 (9th Cir. 1977); Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968); Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961); People v. Fox, 62 Ill.App.3d 854, 20 Ill.Dec. 84, 379 N.E.2d 917 (1978); People v. Lichtenheld, 44 Ill.App.3d 647, 3 Ill.Dec. 296, 358 N.E.2d 694 (1976), and since United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the issue has acquired added significance. In Robinson, the Court decided there is no reason to limit a search incident to a minor traffic arrest, because "it is the fact of the lawful arrest for any reason which establishes the authority to search." 414 U.S. at 235, 94 S.Ct. at 476. The Robinson dissenters, however, realized a potential for abuse of the authority to search granted by the majority's opinion. Justice Marshall noted, "There is always the possibility that a police officer, lacking probable cause to obtain a search warrant, will use a traffic arrest as a pretext to conduct a search." 414 U.S. at 248, 94 S.Ct. at 482. Since the Robinson majority opinion was based on the existence of a valid arrest, the pretext issue was not addressed or resolved.

The government, here, has relied on a First Circuit case which significantly curtails the applicability of a pretext arrest argument. In United States v. McCambridge...