US v. Lukens

• Decision Date: 13 April 1990
• Docket Number: No. CR89-096-K.,CR89-096-K.
• Citation: 735 F. Supp. 387
• Parties: UNITED STATES of America, Plaintiff, v. Seth Thomas LUKENS, Defendant.
• Court: U.S. District Court — District of Wyoming

735 F. Supp. 387

UNITED STATES of America, Plaintiff, v. Seth Thomas LUKENS, Defendant.

No. CR89-096-K.

United States District Court, D. Wyoming.

April 13, 1990.

David A. Kubicheck, Asst. U.S. Atty. D. Wyo., Casper, Wyo., for plaintiff.

Ronald Pretty, Cheyenne, Wyo., for defendant.

ORDER DENYING DEFENDANT'S MOTIONS TO SUPPRESS PHYSICAL EVIDENCE, STATEMENTS, AND/ OR CONFESSIONS (WITH FINDINGS)

KERR, District Judge.

The above-entitled matter having come on regularly for hearing before the Court on defendant's motions to suppress; plaintiff appearing by and through its attorney, David A. Kubicheck, Assistant United States Attorney for the District of Wyoming; defendant appearing by and through his attorney, Ronald G. Pretty; and the Court having heard the arguments of counsel and having fully and carefully reviewed and considered the motions and all matters pertinent thereto, and being fully advised in the premises, FINDS:

At approximately 10:14 p.m. on August 17, 1989, officer Andrew Tkach of the Buffalo Police Department went to a local Taco John's establishment in response to an employee's phone call about a suspicious person who had been in the parking lot for some time. When he arrived, Tkach found defendant Lukens standing beside a beige 1981 Chevrolet Impala with Montana license plates and told him of the suspicious person report. Upon request, Lukens produced a South Dakota driver's license. He explained that the vehicle belonged to a friend in Montana who had loaned it to him and that he was waiting in the parking lot for his girlfriend who was en route from Gillette, Wyoming. Tkach ran a registration check and verified that the automobile belonged to the individual Lukens had identified. Then Tkach ran a routine check on the driver's license. While he was waiting for a response, Tkach, believing Lukens' story, returned the driver's license and proceeded to drive around the parking lot.

Within moments after driving off, Tkach learned that Lukens was wanted in Crook County, Wyoming on a failure to appear charge for driving while under suspension. Tkach returned to Lukens and handcuffed him at about 10:20 p.m. As the two were walking to the patrol vehicle, Tkach asked Lukens whether he was carrying any large amounts of money or illegal drugs. Lukens responded in the negative. Tkach then asked if he could look inside the vehicle. Lukens responded, "Do you need to?" The officer said he "would like to." Lukens then said "okay." Tkach walked back to the Impala after placing Lukens in the squad car. Inside, under the driver's seat, Tkach retrieved a purple "Crown Royal" cloth bag containing two plastic "zip-lock" bags of a white powder, later determined to be methamphetamine. By this time, a deputy sheriff had arrived on the scene. Tkach read Lukens his Miranda rights and asked the deputy to transport Lukens to the police station in Buffalo.

By 10:40 p.m., Tkach had returned to the police station. At that time, Lukens denied knowledge of the drugs. Tkach talked with Lukens some twenty minutes later in the deputy's presence. Again Lukens denied knowledge of the drugs. Tkach indicated he would probably find Lukens' fingerprints on the bags. Lukens responded, "You probably will." Tkach asked if it was cocaine. Lukens said "no." Tkach then asked if it was methamphetamine. This time Lukens nodded his head up and down. After that, Lukens related that he was in a lot of trouble and that "maybe he should talk to a lawyer." Tkach asked no more questions and placed Lukens in a holding cell.

At about 11:40 p.m., Tkach notified the state's Division of Criminal Investigation (DCI) of the drug arrest. Some two to three hours later, DCI special agent Kevin Hughes and another agent arrived from Gillette. Tkach briefed Hughes on what had transpired, including Lukens' statement that "maybe he should talk to a lawyer." Hughes had Lukens brought to an interview room and asked him if he had been advised of his rights and, if so, whether he understood them. Appearing alert, Lukens responded affirmatively. Hughes then advised Lukens that if prosecuted under federal law, he would be looking at a mandatory five-year minimum sentence due to the quantity of methamphetamine seized. Hughes reminded Lukens of his earlier statement regarding an attorney and reiterated that he had a right to an attorney if he wanted one. Acknowledging the trouble he was in, Lukens responded, "I'll talk to you now." Lukens proceeded with four different stories concerning the acquisition and planned disposition of the methamphetamine. After giving these stories, Lukens said he wanted a lawyer. No further questions were asked.

Later that morning the DCI agents transported Lukens to Casper for an appearance before the Federal Magistrate. Enroute, Lukens started spontaneously saying, "You all ought to just shoot me. When you're broke, you do stupid things." Lukens then volunteered that his only involvement with the methamphetamine was for the money and that he was not a user. Hughes then recited some names of suspected methamphetamine dealers in Billings, Montana and inquired whether Lukens knew any of them. Lukens said "no."

Defendant seeks to have the physical evidence suppressed, contending that the search was unreasonable, nonconsensual, and without probable cause. Additionally, defendant seeks suppression of any and all statements or confessions made as tainted and for the reasons that the same were obtained after Lukens' request for an attorney and upon law enforcement officers' representations of a lesser sentence if he cooperated. Defendant also maintains that the statements should be suppressed due to the failure of the Government to promptly bring him before a magistrate.

At the outset, officer Tkach's initial encounter with Lukens, rather than being a seizure or detention of his person, was precisely the sort of consensual police/citizen encounter envisioned in Florida v. Royer, 460 U.S. 491, 497-498, 103 S.Ct. 1319, 1323-1324, 75 L.Ed.2d 229 (1983), as being outside the Fourth Amendment. Constitutional scrutiny occurs at the point where a person becomes sufficiently detained such that it becomes obvious that he is no longer free to terminate the encounter. To justify a brief investigative stop, an officer need have only a reasonable suspicion, supported by articulable facts, that the detained individual was involved in some wrongdoing. United States v. Sokolow, ___ U.S. ___, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). See also Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889 (1968). Reasonable suspicion entails more than an inchoate "hunch" but less than the level of suspicion required for probable cause. Sokolow, 109 S.Ct. at 1585. No one particular fact is necessarily sufficient; rather, the detention must be judged against the totality of the circumstances. Id.

Contrary, then, to defendant's suggestion, the officer did not need probable cause to take the defendant's driver's license and run a check on it. All he needed was reasonable suspicion of wrongdoing. Viewed in this light, what the officer had was a late-night call from a concerned service employee regarding an individual parked in the establishment's parking lot who had been there for at least an hour. With the establishment's closing time at hand, that concern was both understandable and justifiable. There existed a reasonable suspicion on the part of the officer that criminal activity was being contemplated, if not already in progress. That in the end he appeared to be involved in no criminal activity but rather was simply waiting for his girlfriend does not diminish the reasonableness of the officer's suspicion at the time he asked for Lukens' driver's license. Cf. Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam) (acknowledging the existence of circumstances wherein wholly lawful conduct might justify the suspicion that criminal activity was afoot). The encounter, less than five minutes, was minimally intrusive.

There is nothing improper with Lukens' arrest either. As the officer testified, the arrest came about not due to Lukens' loitering in a public parking lot but because of an outstanding warrant from another county related to a driving offense.

On the search conducted by Tkach, the Court finds that the defendant voluntarily consented. When Lukens took the stand at the suppression hearing, he provided no testimony on the consent issue, focusing instead on his request for an attorney. Since defendant's counsel presented no testimony to contradict Tkach's version of events, consent was voluntary. This vitiated the need for probable cause and justified the search and seizure of the methamphetamine.

Lukens also claims that subsequent statements made to Tkach and the deputy and later to Hughes were taken during periods of unnecessary delay between his arrest and his appearance before a magistrate. He also claims that some of the statements were obtained in violation of his right to have counsel present. Lukens' own testimony disclosed no coercion on the part of any law enforcement officers.

Statements or confessions are admissible into evidence if voluntarily given. Voluntariness is determined from the totality of the circumstances, including

(1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and

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