United States v. Wheaton
| Decision Date | 17 September 2018 |
| Docket Number | Case No. 17-10161-JWB |
| Citation | 337 F.Supp.3d 1107 |
| Parties | UNITED STATES of America, Plaintiff, v. Deshawn D. WHEATON, Defendant. |
| Court | U.S. District Court — District of Kansas |
Mona L. Furst, Office of United States Attorney, Wichita, KS, for Plaintiff.
This case comes before the court on Defendant's motion to suppress and motion to dismiss count 4. (Docs. 28, 30.) The motions have been fully briefed and the court held an evidentiary hearing on August 21, 2018. (Docs. 29, 31, 32, 33.) Defendant's motion to suppress is DENIED and Defendant's motion to dismiss is DENIED for the reasons herein.
The court finds the following facts from the evidence presented at the hearing. On July 29, 2017, Wichita Police officers Atkins and Fisher were patrolling in the area of 21st and Grove streets in Wichita, Kansas. Atkins is currently on active duty for the Kansas National Guard and had been a police officer for more than four years at the time of the stop. Fisher has been an officer for eight years. Both officers had extensive training and were part of the Special Community Action Team (SCAT). On the evening of July 29, around midnight, they were patrolling in a high crime area. They observed a vehicle traveling without lights, which is a violation of Kansas law. As the driver turned the corner, the vehicle's lights came on. Atkins was driving the patrol car and he activated the emergency lights to pull over the vehicle.
After the stopping the vehicle, Atkins exited the patrol car and approached the driver. Fisher approached the passenger side of the vehicle for safety reasons. Defendant Deshawn Wheaton was the driver of the vehicle. Defendant handed over his license and insurance. Atkins asked Defendant where he was headed. Defendant stated that he was going to a friend's house. Atkins noticed a strong fragrance in the vehicle that smelled like an air freshener. Atkins asked Defendant if he was covering up something in the vehicle. Defendant said that he was not. Atkins told Defendant that he was stopped for not having his lights on. Defendant admitted that he had been driving without headlights.
Atkins returned to his patrol car to do a check on Defendant's driver's license. As a practice, Atkins always does a criminal history check on the computer. The check tells the officer if a particular driver has any history of arrests or any outstanding warrants for the City of Wichita. The computer check does not display actual convictions. In order to confirm a driver's actual convictions or warrant status, the officer calls into dispatch. After running Defendant's information, Atkins learned that Defendant had various arrests for violent crimes, drugs and guns. Upon learning this information, coupled with the facts that there was a strong smell in the car and Defendant's lights had been off, Atkins believed that Defendant may be under the influence of drugs or alcohol and/or that there were drugs in the vehicle. Atkins testified that driving without lights is an indication that the driver is impaired. Additionally, an air freshener can be used to cover up the smell of marijuana. Atkins decided to ask Defendant to step out of the vehicle for additional questioning and to determine if he was impaired.
Atkins returned to the driver's side of the vehicle and told Defendant to step out of the vehicle. At this time, Fisher remained standing on the passenger side of the vehicle. Fisher observed Defendant take something out of his pocket and shove it under the driver's seat. Fisher could not tell what it was because his flashlight was not working. When Defendant stepped out of the vehicle, Atkins led him to the sidewalk for safety reasons. Atkins asked Defendant if he had any weapons and then patted him down to check. Atkins told Defendant that he was not under arrest and asked him if he was under the influence. Defendant denied being under the influence. Fisher then asked Atkins for his flashlight so that he could shine it in the vehicle to look under the driver's seat. Fisher walked to the driver's side of the vehicle with the flashlight. Atkins then asked Defendant if he could search the vehicle. Defendant said no and denied having any drugs in the vehicle. Atkins testified that Defendant's nervousness was increasing during the conversation on the sidewalk.
During this time, Fisher was standing outside the driver's side window and shining the flashlight in the vehicle. Fisher did not stick the flashlight through the open window while looking in the vehicle. As Fisher shined the flashlight, he observed the grip of a gun sticking out from under the driver's seat. Fisher then decided to place Defendant in handcuffs. Fisher testified that individuals can decide to flee upon learning that a weapon has been discovered and that potential threat is avoided with handcuffing the individual. Fisher approached Defendant and placed him in handcuffs. Fisher informed Defendant that he would be in handcuffs until they determined why he stuffed a gun under the seat. Defendant denied shoving a gun under the seat. Fisher testified that in his experience an individual would hide a firearm if that individual was a prohibited person or if the gun was stolen. Fisher asked Defendant if he was a convicted felon. Defendant stated that he was. Fisher asked Defendant about his conviction and Defendant responded that he was convicted of possession with intent to distribute. Fisher informed Defendant that they would verify his record. Fisher stated that if his conviction was a particular age then Defendant's rights to possess a gun may have been restored. Atkins then went to the driver's side of the vehicle and shined the flashlight into the vehicle. Atkins did not stick the flashlight inside of the vehicle. Atkins was able to see the grip of the gun after shining the flashlight through the windshield. The detention on the sidewalk lasted approximately three to four minutes.
The officers made the decision to detain Defendant because he had shoved the gun under the seat and they believed that he was either a felon in possession of a gun or that the gun was stolen. Defendant was placed in the patrol car. Fisher then made a call to dispatch to confirm Defendant's criminal history. Fisher also checked the Kansas Department of Corrections' (KDOC) website for Defendant's prior convictions. The website, KASPER, showed that Defendant had a prior felony conviction. Atkins testified that he did not seize the gun until Fisher informed him that Defendant was a felon.1 Atkins returned to Defendant's vehicle and retrieved the gun from under the seat. When he seized the gun, Atkins also observed an open bottle of cognac under the driver's seat.
After seizing the gun and the open container, Atkins then proceeded to search the vehicle. Based on the allegations in the indictment, the vehicle contained cocaine, marijuana and four handguns.2
On November 1, 2017, an indictment was filed charging Defendant possession with intent to distribute controlled substances, possession of a firearm in furtherance of a drug trafficking crime, and felon in possession of a firearm. (Doc. 1.) Reviewing Defendant's criminal history, Defendant was convicted of possession of marijuana after a prior conviction on November 26, 2012. (Doc. 29, Exh. 1.) Under the Kansas Sentencing Guidelines, which uses a grid box to determine sentencing, Defendant's conviction was designated as a level 4 non-person felony. Defendant's criminal history was a classification of "H," which placed him in a box that called for presumptive probation. In addition, the presumptive sentencing range was 12 to 14 months. On February 15, 2013, Defendant was sentenced to 12 months imprisonment with probation granted.
Defendant has now moved to suppress the items seized from his vehicle, on the basis that the search violated the Fourth Amendment, and to dismiss count 4, felon in possession, on the basis that his prior conviction was not punishable by more than imprisonment exceeding one year.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The Supreme Court has liberally interpreted "seizures" to encompass routine traffic stops, "even though the purpose of the stop is limited and the resulting detention quite brief." See Delaware v. Prouse , 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). An initial traffic stop is justified at its inception if "an officer has (1) probable cause to believe a traffic violation has occurred, or (2) a reasonable articulable suspicion that a particular motorist has violated any of the traffic or equipment regulations of the jurisdiction."
United States v. Winder , 557 F.3d 1129, 1134 (10th Cir. 2009).
In this case, the undisputed facts show that the traffic stop was justified. Defendant was traveling without his lights at night in violation of Kansas law. Even when the initial stop is valid, any investigative detention must not last "longer than is necessary to effectuate the purpose of the stop." Florida v. Royer , 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). An officer "conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation." United States v. Bradford , 423 F.3d 1149, 1156 (10th Cir. 2005). The uncontroverted testimony shows that Atkins approached the vehicle upon initially stopping it and then obtained Defendant's driving documents. Atkins returned to his patrol car to run a license and background check, which was appropriate. Therefore, the scope of the traffic stop was reasonably related in scope to the circumstances which initially justified the interference. Terry v. Ohio , 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
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