US v. Hanks

• Decision Date: 25 May 1993
• Docket Number: No. 92-10087-01.,92-10087-01.
• Citation: 821 F. Supp. 1425
• Parties: UNITED STATES of America, Plaintiff, v. Roderick J. HANKS, Defendant.
• Court: U.S. District Court — District of Kansas

821 F. Supp. 1425

UNITED STATES of America, Plaintiff, v. Roderick J. HANKS, Defendant.

No. 92-10087-01.

United States District Court, D. Kansas.

May 3, 1993.

Reconsideration Denied May 25, 1993.

Kim Fowler, Asst. U.S. Atty., Wichita, KS, for plaintiff.

Cyd Gilman, Asst. Federal Public Defender, Wichita, KS, for defendant.

MEMORANDUM AND ORDER

PATRICK F. KELLY, Chief Judge.

Defendant Roderick Hanks was charged with possessing a firearm affecting interstate commerce in violation of 18 U.S.C. § 922(g)(1), with possessing a machine gun in violation of 18 U.S.C. § 922(o), and with possessing a silencer, not registered to him, in violation of 26 U.S.C. § 5861(d). Defendant moved to suppress all evidence seized from the car which he was driving on June 24, 1992, any evidence from the blue bag found in the car, and any statements made by defendant.

On June 24, 1992, Officer Shourbaji met Officers Stone and Ojile and two witnesses at the corner of Douglas and Seneca. There had been an incident involving an unknown black male who drove a black Camaro and worked at the Midnight Modeling Agency. The suspect had threatened these two individuals with a firearm; Officer Shourbaji was unaware, however, as to when the fracas involving the suspect had occurred. While the officers were talking with the witnesses, defendant drove east on Douglas in a black Camaro. Although Officer Shourbaji testified that he was unable to see the driver, the two complainants identified the driver as the man in question. As the defendant drove away, Officer Shourbaji followed with his emergency lights flashing.

After stopping, defendant got out of his car and threw a nylon gym bag into his trunk. Officer Shourbaji ordered defendant to stop, but defendant ignored the order. While defendant was walking to his trunk, Officer Shourbaji ordered him to stop and pointed his gun at him. Officer Shourbaji testified that he believed defendant was not free to leave at that time. When asked why he ignored the officer's directive, defendant responded, "There's a gun in the bag and it's my wife's." Although this is what the officer put in his report, defendant contends that he only responded by asking why he was stopped. Officer Shourbaji did not read defendant his Miranda rights before asking him this question.

The police placed defendant under arrest for carrying a concealed weapon. The police then opened the trunk and the gym bag. Officers discovered a .22 caliber pistol, a homemade silencer, and a bag of marijuana in a film container. All three items were found in the gym bag.

The Stop

The initial stop of defendant's car must be justified under constitutional principles of the Fourth Amendment. In United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), the Court stated that an initial stop must be justified by showing that the defendant is or is about to be engaged in criminal activity, or there must be reasonable grounds to believe that the person is wanted for past criminal conduct. Id. at 417 n. 2, 101 S.Ct. at 695 n. 2. The Court reaffirmed this opinion in United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985), wherein the Court held that police have the authority to detain a person for investigative purposes if they have a reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). This reasonable suspicion of the officers need not be based on full probable cause. The standard must be judged under the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1586, 104 L.Ed.2d 1 (1989); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968).

In this case, the officers had eyewitness identification of the defendant as the man who had previously threatened them with a firearm. The car of the defendant was identical to the car described by the witnesses. Officer Shourbaji testified, however, that he could not see the driver of the car or whether the driver was an African-American. But reasonable suspicion can be based upon a report from another party. Hensley, 469 U.S. at 232, 105 S.Ct. at 682. Thus, under the totality of the circumstances test, the officers had enough facts to justify their suspicion of criminal activity on the part of defendant, and the facts of this case support the initial stop of defendant's car.

A warrantless search incident to a valid Terry stop is lawful for Fourth Amendment purposes. The case law discussing this exception generally focuses on frisking the driver of a car. In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), however, the Court addressed the scope of this exception. In Michigan, the Court focused on a search of the passenger compartment of the automobile. The Court held that the search of the passenger compartment of an automobile, limited to the areas where a weapon may be hidden, is valid if reasonably warranted. Id. at 1049, 103 S.Ct. at 3481. This exception, however, does not address the search of the trunk or the gym bag in the trunk. To ascertain the validity of the search in this case, the court must first determine whether or not an arrest was made of defendant.

Arrest and Interrogation

The issues before the court are whether the defendant was placed under arrest when Officer Shourbaji drew his gun, and whether the question Officer Shourbaji asked the defendant constituted a custodial interrogation. Defendant argues that he was effectively placed under arrest by the officers when they initially stopped him. By not giving the suspect his Miranda warnings, the question by Officer Shourbaji concerning what defendant had in his gym bag would be an improper interrogation. Defendant further argues that this improper interrogation gave rise to the probable cause to search the entire vehicle. Thus, the question before this court is whether or not the Terry stop effectively became an arrest of defendant.

Anyone in police custody and accused of a crime, no matter how minor the crime, must be given Miranda warnings prior to interrogation. Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 3145, 82 L.Ed.2d 317 (1984). Whether a person is in custody depends on whether or not the person's freedom of action is denied in a significant way. The more a setting resembles a traditional arrest, the more likely the Supreme Court has found it to be custodial. If the suspect's freedom is curtailed to a degree associated with a formal arrest, he will be entitled to the full panoply of protections prescribed by Miranda. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977).

The Eighth Circuit reminds us that there is "no litmus-paper test or sentence or paragraph rule to determine when, given the endless variations in facts and circumstances, police-citizen encounters exceed the bounds of mere investigative stops." United States v. Jones, 759 F.2d 633, 636 (8th Cir.), cert. denied, 474 U.S. 837, 106 S.Ct. 113, 88 L.Ed.2d 92 (1985). An investigative stop becomes an arrest when the officers' conduct is more intrusive than necessary for investigative purposes. United States v. Rose, 731 F.2d 1337, 1342 (8th Cir.), cert. denied, 469 U.S. 931, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984). In the name of investigating a person who is no more than suspected of criminal activity, the police may not "seek to verify their suspicions by means that approach the conditions of arrest." Royer, 460 U.S. at 499, 103 S.Ct. at 1325.

In United States v. DiGiacomo, 579 F.2d 1211 (10th Cir.1978), the court held that where the defendant was kept apart from his companion, told he was suspected of a crime, told he had to surrender any counterfeit money he had, and informed that he could be arrested, the defendant's status was "functionally equivalent to an arrest." Id. at 1214. In that case the court held that Miranda warnings were necessary.

But to hold that any complete, albeit brief, restriction of liberty is an arrest would defeat the purpose of investigative stops. Officers would have few alternatives to consensual encounters short of arrest. Thus, courts have held that an officer may impose a momentary restriction on freedom of movement while making an initial inquiry, provided that the force displayed is not excessive. Jones, 759 F.2d at 638; United States v. Patterson, 648 F.2d 625, 633 (9th Cir.1981). Even the investigative stop in Terry involved some physical force by the police. Terry, 392 U.S. at 7, 88 S.Ct. at 1872. In other cases, handcuffing the suspects or placing them in the caged rear of the police car have been held not to convert the stop into an arrest when reasonable as a protective measure. See United States v. Bautista, 684 F.2d 1286, 1289-90 (9th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 447 (1983); United States v. Harley, 682 F.2d 398, 402 (2d Cir.1982).

Under the standard of the Tenth Circuit, an encounter which is characterized by a highly intrusive or lengthy search or detention is an arrest. United States v. Evans, 937 F.2d 1534, 1537 (10th Cir.1991); United States v. Santillanes, 848 F.2d 1103, 1106 (10th Cir.1988); United States v. Cooper, 733 F.2d 1360, 1363 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984). Thus, this court must look both to the intrusiveness of Officer Shourbaji's behavior or the length of time involved in the detention. The relevant focus is how a reasonable person in the suspect's position would have understood his situation. Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151.

In the case before this court, the defendant was effectively under arrest when Officer Shourbaji confronted him at gun point when stopping his vehicle. Officer Shourbaji pointed his gun at d...