US v. Anderson

• Decision Date: 23 January 1996
• Docket Number: No. 95-40065-01-SAC.,95-40065-01-SAC.
• Parties: UNITED STATES of America, Plaintiff, v. Anthony ANDERSON, Defendant.
• Court: U.S. District Court — District of Kansas

915 F. Supp. 1146

UNITED STATES of America, Plaintiff, v. Anthony ANDERSON, Defendant.

No. 95-40065-01-SAC.

United States District Court, D. Kansas.

January 23, 1996.

COPYRIGHT MATERIAL OMITTED

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Joseph D. Johnson, Joseph D. Johnson, Chtd., Topeka, KS, George O. Lawson, Jr., Derek M. Wright, Lawson & Thornton, Atlanta, GA, and Anthony Anderson, Inglewood, CA, for defendant.

Thomas G. Luedke, Office of United States Attorney, Topeka, KS, for the U.S.

MEMORANDUM AND ORDER

CROW, District Judge.

On September 20, 1995, the grand jury returned a one count indictment charging the defendant, Anthony Anderson, with knowingly possessing with intent to distribute approximately six kilograms of a mixture or substance containing a detectable amount of cocaine hydrochloride. The substance alleged to be cocaine was apparently seized during a search of the vehicle driven by Anderson.

This case comes before the court upon the following pretrial motions filed by Anderson:

1. Defendant's motion to suppress (Dk. 15).

2. Defendant Anthony Anderson's Motion for Discovery (Dk. 22).

3. Defendant's motion for Disclosure (Dk. 23).

4. Defendant Anthony Anderson's Motion for Witness List or production of Witnesses and incorporated memorandum of law (Dk. 24).

5. Defendant Anthony Anderson's Motion for Transcription and production of grand jury testimony and brief in support (Dk. 25).

6. Defendant's motion and brief for early disclosure of Jencks Act material and memorandum of law in support thereof (Dk. 26).

The government has filed responses addressing Anderson's motions. See (Dk. 20 and 27).

On December 8, 1995, the court conducted a hearing on the defendant's motions. The court, having considered the arguments and briefs of counsel, the evidence presented at the December 8, 1995, hearing, and the applicable law, is now prepared to rule.

Defendant's motion to suppress (Dk. 15).

On April 8, 1995, Anderson was driving eastbound on Interstate 70 in Saline County, Kansas. At approximately 11:20 a.m., Trooper David Heim observed Anderson driving eastbound. Trooper Heim stopped Anderson because Anderson was following another vehicle too closely. According to Anderson, Trooper Heim's stop was merely a pretext to conduct a search of his vehicle, a Chevy Suburban with California tags. Trooper Heim apparently only issued Anderson a warning for following too closely, but asked if he could search the vehicle, to which Anderson assented. During his search of the vehicle, Trooper Heim ultimately found six kilograms of cocaine in a secret compartment in the gas tank.

Anderson seeks to suppress the evidence on several grounds. Summarized, these are the alternative grounds for suppression:

1. No probable cause to stop Anderson's vehicle existed;

2. The stop of the vehicle was a pretextual stop motivated by an improper purpose;

3. No probable cause or reasonable suspicion existed to justify the continued detention of Anderson following the issuance of the warning;

4. Anderson's consent to search the vehicle was not voluntary;

5. No warrant to search the vehicle was obtained. The government opposes the defendant's motion, arguing that the search was not pretextual, that Anderson's consent to search was voluntary, and that there was nothing unlawful about the manner in which Anderson was stopped or his vehicle was searched. The government contends that no search warrant was necessary under the "automobile exception" to the Fourth Amendment.

To the extent that Anderson argued that the stop of his vehicle was pretextual, his motion to suppress was based upon the Tenth Circuit's decision in United States v. Guzman, 864 F.2d 1512 (10th Cir.1988). On December 5, 1995, in United States v. Botero-Ospina, 71 F.3d 783 (10th Cir.1995), the Tenth Circuit overruled in part its decision in Guzman. In light of this substantial departure from past precedent, the court provided each party an opportunity to file supplemental briefs in support of their respective positions. Each party subsequently filed supplemental briefs.

Legal Standards

In general, there are three types of citizen-police encounters: (1) consensual encounters, which involve a citizen's voluntary cooperation with an official's non-coercive questioning and which are not seizures within the meaning of the Fourth Amendment; (2) investigative detentions or "Terry stops," which are seizures that are justified only if articulable facts and reasonable inferences drawn from those facts support a reasonable suspicion that a person has committed or is committing a crime; and (3) arrests, which are seizures characterized by highly intrusive or lengthy detention and which require probable cause to believe that the arrestee has committed or is committing a crime.

United States v. Seslar, 996 F.2d 1058, 1060 (10th Cir.1993).

"A traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring." United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995). "Our sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction." Id., quoting Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979). For purposes of Fourth Amendment analysis, it does not matter whether: (1) "the stop in question is sufficiently ordinary or routine according to the general practice of the police department or the particular officer making the stop," quoting United States v. Ferguson, 8 F.3d 385, 391 (6th Cir.1993), cert. denied, ___ U.S. ___, 115 S.Ct. 97, 130 L.Ed.2d 47 (1994); and (2) "the officer may have had other subjective motives for stopping the vehicle." Botero-Ospina, 71 F.3d at 787.¹

The law governing the conduct of an officer during a traffic stop is well-settled in the Tenth Circuit:

An officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning.

quoting United States v. Fernandez, 18 F.3d 874, 878 (10th Cir.1994). United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.1994) teaches that further questioning and the concomitant detention of a driver are permissible in either of two circumstances: (1) during the course of the traffic stop the officer acquires an objectively reasonable and articulable suspicion that the driver is engaged in illegal activity (see, e.g., United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993); United States v. Horn, 970 F.2d 728, 732 (10th Cir.1992)) or (2) the driver voluntarily consents to the officer's additional questioning. In the first situation a Fourth Amendment seizure has taken place, but it is reasonable and consequently constitutional. In the second there is no seizure, and hence the Fourth Amendment's strictures are not implicated. But if neither of those factors is present, evidence derived from further questioning (or, a fortiori, from an ensuing search) is impermissibly tainted in Fourth Amendment terms.

United States v. Sandoval, 29 F.3d 537, 539-540 (10th Cir.1994); see United States v. Lee, 73 F.3d 1034, 1040 (10th Cir.1996).

Voluntariness of Continued Encounter

Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389 (1991) has reconfirmed the Supreme Court's adherence:

to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.

That totality-of-the-circumstances approach means that "no single factor dictates whether a seizure has occurred" (United States v. Houston, 21 F.3d 1035, 1037 (10th Cir.1994)). In the context of traffic stops this Circuit has adopted as an indicium of a seizure the officer's taking of necessary documentation (driver's license and vehicle registration) from a driver, and we have also considered as a necessary (but not always sufficient) condition of the termination of that seizure the officer's return of such documentation—both of those rulings being based on the premise that the requisite consent is impossible because no "reasonable person" would feel free to leave without such documentation (United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir.1993)).

After the point at which the driver has his or her other documentation back, the touchstone of our analysis is simply whether —adapting the language of Bostick to the circumstances of a traffic stop—the driver (United States v. Werking, 915 F.2d 1404, 1408 (10th Cir.1990)):

has an objective reason to believe that he was not free to end his conversation with the law enforcement officer and proceed on his way.

Where such a belief is present based on the "objective" facts of the situation, a voluntary police-citizen encounter is said to arise (see, e.g., McKneely, 6 F.3d at 1451-53; Werking, 915 F.2d at 1409).

Sandoval, 29 F.3d at 540. See Lee, 73 F.3d at 1040 (The Tenth Circuit has "consistently held `that an encounter initiated by a traffic stop may not be deemed consensual unless the driver's documents have been returned to him.'") (quoting United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 1862, 128 L.Ed.2d 484 (1994)).

Reasonable Suspicion

Detention "can only be justified if specific and articulable facts and rational inferences drawn from those facts gave...