United States v. Morrison
| Decision Date | 18 January 2013 |
| Docket Number | Case No. 12-10200-JTM |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JOSEPH A. MORRISON, Defendant. |
| Court | U.S. District Court — District of Kansas |
This matter comes before the court on defendant Joseph A. Morrison's Motion to Suppress (Dkt. 14). He moves to suppress evidence collected as a result of his detention and a search of his backpack based on a dog sniff. The court held a hearing on the matter on January 9, 2013, and is now prepared to rule. For the following reasons, the court grants Morrison's motion to the extent set forth below.
On July 22, 2012, at around 10:15 p.m., Trooper James Robinson drove to a reported accident scene on S. Washington Street in a rural area near Great Bend, Kansas. Defendant Morrison had hit a car that had been parked in a driveway. Robinson recognized Morrison and his passenger from a disturbance call he had responded to on July 4, just a couple of weeks earlier. Robinson testified that during the July 4 disturbance, Morrison was alleged to have threatened to use a handgun that he kept in his car. Ultimately, Morrison did not give police consent to search his vehicle, and no gun was ever found.
At the accident scene after the parties exchanged their insurance information, Sandra Hernandez, a resident of a nearby house, told Robinson that before he arrived she had seen Morrison take a long gun case and backpack from his car and place them behind a tree nearby. She said that after some dogs began to sniff and scratch at the bag Morrison moved the items again. Morrison was still present while Hernandez was speaking with Robinson, but he did not ask Morrison about it because Hernandez had said that she was uncomfortable coming forward with this information in Morrison's presence.
Robinson left after giving Hernandez a phone number she could call to reach him if she had more information to report. He drove a couple of blocks from the scene and stopped to complete some accident paperwork. Fernando Loera, the owner of the car Morrison had sideswiped, drove up to Robinson and told him that Morrison was walking down Washington Street with the gun case and backpack. Robinson called for backup. When Deputy Lloyd from the Barton County Sheriff's Office arrived, Robinson asked him to locate Morrison. Lloyd knew who Morrison was and recognized him walking down Washington Street. Robinson drove to the spot where Lloyd had reportedly seen Morrison.
After driving up to Morrison, Robinson got out of his car and addressed the man, ordering him to keep his hands out of his pockets. Morrison obeyed, spreading his arms wide and dropping the bag of potato chips he was carrying. Robinson inquired about the gun case and backpack, and Morrison replied that he did not have anything and was not hiding anything. Robinson frisked Morrison and did not find any weapons onhis person. Robinson walked away from his patrol vehicle while searching along the sides of the road for the items with his flashlight. Morrison remained by the car with Deputy Lloyd.
After spotting the items several yards off the road in a field, Robinson asked Morrison: Morrison responded that the items were his and that he had a gun in the gun case. Morrison walked over to the items with Lloyd following from behind, until Robinson said "Stop right where you're at." Robinson asked whether Morrison had anything illegal in the backpack and whether there was a gun in the gun case. Morrison responded only that there was a gun in the gun case.
Robinson asked Morrison for permission to search both items, and Morrison gave him permission to search the gun case alone. Morrison said the backpack was his but did not give consent for Robinson to search it. Robinson responded to Morrison's denial of permission by guessing that there was dope in the backpack. Robinson asked why Morrison had taken the gun out of the car, and Morrison explained he did not know what the gun laws were and did not want the police officer to see the gun for fear of losing it. Robinson called Lloyd to request a K-9 unit. Before the K-9 unit came, Robinson told Morrison that although he was not yet under arrest, he was "not free to go either."
A short time later, Deputy Conaway arrived with his dog, Rocco, which is certified by the Kansas Police Dog Association. Conaway placed two additional bags from his patrol car in line with the two bags in the field. Rocco sat between the gun andthe backpack, facing the backpack. After Conaway said that Rocco's actions would be sufficient to justify a search under Barton County Sheriff's Office's policies, Robinson searched the backpack. He found methamphetamine, marijuana, a large amount of cash, and a 9mm Smith & Wesson handgun with ammunition. Morrison was arrested and transported to Barton County Jail.
First, the court must decide whether Robinson's investigative detention and frisk of Morrison were proper. Investigative detentions are Fourth Amendment seizures of limited scope and duration. See United States v. Madden, 683 F.3d 920, 925 (10th Cir. 2012). In order to affect a lawful stop, police must have an objectively reasonable and articulable suspicion that criminal activity is afoot. See United States v. Sokolow, 490 U.S. 1, 7 (1989). A protective frisk of the suspect's outer clothing is proper if the officer reasonably believes that the suspect might be armed and dangerous. Terry v. Ohio, 392 U.S. 1, 27-30 (1968). In determining whether reasonable suspicion exists, we look at the totality of the circumstances. United States v. McHugh, 639 F.3d 1250, 1256 (10th Cir. 2011). Reasonable suspicion requires only "some minimal level of objective justification." Sokolow, 490 U.S. at 7 (internal quotation marks omitted).
Morrison argues that reports of a person carrying a rifle case and backpack out in the country do not provide an officer with an objectively reasonable basis to suspect criminal activity. However, the reports that Robinson had received established a reasonable basis for him to believe that Morrison was intentionally hiding the contents of these items from police eyes. Morrison reasonably should have known the police would show up after hisaccident, and Robinson had received information that he had removed items from the vehicle before police arrived. Hernandez told Robinson that Morrison had initially placed the gun case and backpack in a field away from the scene of the accident then moved them behind a tree after neighborhood dogs began taking an interest in the items. Robinson also found out that once he had left, Morrison had retrieved the items and was carrying them down the road. When Robinson caught up to Morrison, he did not have either item on his person. At that point, Morrison was not merely a man carrying a rifle case and a backpack out in the country. In a reasonable officer's mind, Morrison was potentially trying to hide these items from the authorities, one of which might be a dangerous weapon.
The government does not challenge that the Terry stop began when Robinson got out of his car and ordered Morrison to keep his hands out of his pockets. The court finds that Robinson had an objectively reasonable basis at that moment to suspect that criminal activity was afoot. See Sokolow, 490 U.S. at 7. As the court explains below, Robinson's suspicions only grew from the inception of this investigative detention to the point of Morrison's arrest. The court finds that there was never a moment during Morrison's detention that Robinson did not have adequate reasonable suspicion; the entire detention was justified.
The court also assesses Robinson's Terry frisk of Morrison. Morrison had been reported threatening people with a gun on an incident Robinson had responded to earlier that month. Robinson had been told that on this day, Morrison was carrying a rifle around and concealing it from police. Given this background, the court finds that Robinson had reasonable grounds to frisk Morrison for officer safety. See Terry, 392 U.S. at 27-30.
Morrison's motion argues that the certification of the K-9 unit was not credible and that the dog did not give a sufficient final response to provide probable cause to search the backpack. The court analyzes these issues in the broader context of whether Robinson had probable cause to search of Morrison's backpack.1 The court reviews first the facts leading up to the dog sniff.
The Fourth Amendment "right of the people to be secure in their persons . . . against unreasonable searches and seizures" generally requires a law enforcement officer to have probable cause for conducting a search. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009). "Probable cause exists where the facts and circumstances within an officer's knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed, and that evidence bearing on that offense will be found in the place to be searched." Id. (internal quotations omitted).
Although Morrison's only challenge to the search of his backpack focuses on the K-9 unit's certification and final response, the court takes note of the facts known to Robinson before the dog sniff. Upon seeing Morrison on the road, Robinson got out of his car and asked whether Morrison had a gun case or backpack that he had been carrying. Morrison denied this, despite what the two people from the accident scene had toldRobinson. After a quick search with his flashlight, Robinson found these items in the field a short distance away. At that moment, Robinson was justified in believing that Morrison had lied to him about not having the items before. A few minutes later,...
To continue reading
Request your trial