US v. Krzeminski, 1:94-cr-29.
| Decision Date | 08 February 1995 |
| Docket Number | No. 1:94-cr-29.,1:94-cr-29. |
| Parties | UNITED STATES of America v. Terry Lee KRZEMINSKI. |
| Court | U.S. District Court — Northern District of Indiana |
COPYRIGHT MATERIAL OMITTED
Quinton L. Ellis, Wagoner Ellis Kiefer, Fort Wayne, IN, for Terry Lee Krzeminski.
Asst. U.S. Atty., Tina Nommay, Fort Wayne, IN, for U.S.
This matter is before the court on Defendant's Motion to Suppress, filed on November 28, 1994. The court held a hearing on the Motion to Suppress on December 2, 1994, after which the court ordered both parties to file briefs. Defendant Krzeminski filed his Memorandum in Support of the Motion on December 22, 1994; the Government filed its Memorandum in Opposition to the Defendant's Motion on December 23, 1994; and on January 3, 1995, the Government filed its Response to Krzeminski's Memorandum in Support of the Motion. The Defendant's Motion is Suppress is hereby DENIED.
On November 25, 1993, Deputy Sheriff Arthur J. Carpenter and Deputy Sheriff Randy D. Albright of the Steuben County Sheriff's Department were working the third shift: 10:00 p.m. to 6:30 a.m. The officers were patrolling in separate vehicles. At approximately 4:18 a.m., they received a dispatch call informing them of an incident that was talking place at 240 Shavers Court. The call reported that an intoxicated person was refusing to leave the residence and was causing problems.1
Deputy Carpenter proceeded to the Shavers Court address; en route, the dispatcher relayed the contents of a second call from 240 Shavers Court. The dispatcher informed the officers that the person causing the problems had left the residence with another man in an older gray Chevrolet truck. The dispatcher reported that the complainant had stated that the suspect was "very intoxicated."
As Deputy Albright was driving toward Shavers Court, he thought he saw the gray truck pass him. He then radioed Deputy Carpenter and informed him that he may have seen the gray truck and that he was going to turn around and catch up with the truck. Shortly thereafter, Deputy Albright the possibility of a physical altercation, radioed Deputy Carpenter and told him that the truck had turned on 675 and was going south.
As Deputy Carpenter turned south on 675, the truck was about mile ahead of him. When Deputy Carpenter approached the truck, it was stopped in the middle of the road, the inside dome light was on, and two men were leaning over towards the center of the cab of the truck. As Deputy Carpenter got closer to the vehicle, it began to drive south on 675 again. Deputy Carpenter advised Deputy Albright that the car was proceeding south. After driving for less than a mile, the truck turned into a driveway and then pulled off into a grassy area and came to a stop.
Deputy Carpenter pulled behind the truck, turned on his flashing lights, put his spotlight on the truck, and got out of his vehicle. Deputy Carpenter testified that he was not blocking the truck and that it could have left the area had it chosen to do so. Deputy Carpenter also stated that he did not turn on his sirens at this time, and, in fact, did not turn on his lights or sirens at any time before the truck pulled off the roadway and came to a halt. As Deputy Carpenter approached the truck, it appeared to him that the occupants were doing something, so he told them to put their hands on the dashboard.
Deputy Carpenter walked to the driver's side of the truck whereupon the driver rolled the window down. At this point, Deputy Carpenter noticed that a strong odor of alcohol was coming from the truck and that the driver's eyes were bloodshot. He then removed the driver from the truck and placed his hands on the bed of the truck. During this time, it appeared to Deputy Carpenter that the passenger had taken his hands off the dashboard and was doing something in his lap, so he told the passenger to keep his hands on the dashboard. Deputy Carpenter placed the driver under arrest for public intoxication. Deputy Carpenter's gun was not drawn during the incident.
By this time, Deputy Albright had arrived on the scene and was approaching the passenger's side of the truck. Deputy Albright took his flashlight and swept up the right side of the truck as he approached the passenger's side. His flashlight caught the gleam of something protruding from the passenger's door. Upon realizing that the gleam was caused by a gun barrel, Deputy Albright advised the passenger not to move his hands. The gun was sitting across the passenger's lap. Deputy Albright reached across the passenger and pulled the gun out of the truck. At this point, Deputy Albright removed the subject from the truck and placed him on the ground in handcuffs. Upon removing the subject's wallet, Deputy Albright identified him as Terry Lee Krzeminski ("Krzeminski"), the defendant in this case.
Deputy Albright then placed Krzeminski under arrest for public intoxication based on a "very strong odor of alcohol on him" and the fact that "there was not a logical reason for him to have a weapon in that position." Further, Deputy Albright described Krzeminski's attitude at the time of the arrest as "aggravated." When Deputy Albright subsequently searched the cab of the truck, he found on the floorboard where Krzeminski sat a box of .22 magnum rounds and three loose rounds. Krzeminski was subsequently charged with violating 18 U.S.C. § 922(g)(1), possession of a firearm by a convicted felon.
The Defendant moves this court to suppress evidence obtained from the stop and search of the gray truck, claiming that the stop and search were conducted in violation of the Fourth Amendment.
The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. Not every encounter between a police officer and a citizen amounts to a seizure, and there is no foundation for invoking the Fourth Amendment if no seizure has occurred. United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1876-77, 64 L.Ed.2d 497 (1980). As the Seventh Circuit has noted, there are three categories of police/citizen encounters:
The first category is an arrest, for which the Fourth Amendment requires that police have probable cause to believe that a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a Fourth Amendment "seizure," but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category involves no restraint on the citizen's liberty, and is characterized by an officer seeking the citizen's voluntary cooperation through noncoercive questioning. This is not a seizure within the meaning of the Fourth Amendment.
United States v. Johnson, 910 F.2d 1506, 1508 (7th Cir.1990).
The Defendant claims that he was seized by the arresting officers and cites Brower v. Inyo County, 489 U.S. 593, 596, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989), for the proposition that activation of a marked law enforcement vehicle's overhead lights is a direct application of police authority designed to restrict the vehicle's freedom of movement. The Government asserts that while the officer's activation of lights may be a factor in some cases in determining whether, under the totality of the circumstances, a person feels free to leave, in the present case, Carpenter's activation of his lights did not amount to a seizure.
"A police intervention may be a seizure if, `taking into account all of the circumstances surrounding the encounter,' the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Florida v. Bostwick, 501 U.S. 429, 436, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991); United States v. Packer, 15 F.3d 654, 657 (7th Cir.1994); McGann v. Northeast Illinois Regional Commuter R.R. Corp., 8 F.3d 1174, 1185 (7th Cir.1993).
The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to "leave" will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs.
Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988). Factors relevant to this determination, include, but are not limited to, the following: "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." McGann, 8 F.3d at 1185 (quoting Mendenhall, 446 U.S. at 554-55, 100 S.Ct. at 1876-77 (1980)). However, "if officers stop individuals and seek their voluntary cooperation through noncoercive questioning, ... the encounter is not a seizure under the Fourth Amendment." United States v. Robinson, 30 F.3d 774, 782 (7th Cir.1994).
When Deputy Carpenter first pulled behind the stopped gray truck and activated his lights, there was not a "seizure" and the Fourth Amendment was not implicated. The gray truck had stopped of its own volition after it pulled off the road. Deputy Carpenter merely pulled behind the track after it had stopped and then turned on his lights.2 He had not activated his lights or sirens prior to this time. Deputy Carpenter was the only officer present at this time, and he did not draw his gun....
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