US v. Menard, CR 95-4007

Citation898 F. Supp. 1317
Decision Date13 September 1995
Docket NumberCR 95-4008.,No. CR 95-4007,CR 95-4007
PartiesUNITED STATES of America, Plaintiff, v. Michael D. MENARD, Defendant. UNITED STATES of America, Plaintiff, v. Michael Lee WALKER, Defendant.
CourtUnited States District Courts. 4th Circuit. Northern District of West Virginia

COPYRIGHT MATERIAL OMITTED

Michael Hobart, Assistant United States Attorney, Sioux City, Iowa, for U.S.

Nick Drees, Assistant Federal Public Defender, Des Moines, Iowa, for defendant Michael Menard.

Gene A. Wickey of the Law Office of Gene A. Wickey, P.C., Sioux City, Iowa, for defendant Michael Walker.

ORDER REGARDING MOTIONS TO SUPPRESS

BENNETT, District Judge.

                                                 TABLE OF CONTENTS
                  I. INTRODUCTION AND BACKGROUND ............................................. 1319
                 II. FINDINGS OF FACT ........................................................ 1320
                III. CONCLUSIONS OF LAW ...................................................... 1321
                     A. The Vehicle Stop ..................................................... 1321
                     B. Search of the Defendants ............................................. 1321
                        1. Search of Defendant Walker ........................................ 1322
                        2. Search of Defendant Menard ........................................ 1323
                           a. "Automatic companion" rule and "mere propinquity" .............. 1323
                           b. Propinquity plus more .......................................... 1327
                               i. Officer safety ............................................. ____
                              ii. Subjective and objective grounds for a weapons search ...... ____
                             iii. Intrusiveness of a pat-down search ......................... ____
                           c. Reasonableness of the search of Menard ......................... 1330
                 IV. CONCLUSION .............................................................. 1333
                

A failure to dim headlights late at night on a highway led to the seizure of weapons and drugs from and arrest of two of the three occupants of a vehicle stopped by a local law enforcement officer. The motions to suppress that resulted from the seizures involve at their core the question of whether the Terry pat-down searches of the two male occupants of the vehicle violated Fourth Amendment standards. One of the persons arrested has moved to suppress evidence of the weapon and drugs found on him on the ground that officers had no reasonable suspicion for conducting a pat-down search for weapons. The other person arrested has moved to suppress evidence of the weapon and drugs found on him on the ground that he was patted down as an "automatic companion" of the first person patted down without reasonable articulable suspicion as to him.

I. INTRODUCTION AND BACKGROUND

A two-count indictment returned on July 12, 1995, charges Defendant Michael D. Menard with one count of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and one count of knowingly using and carrying a firearm during and in relation to a drug trafficking crime in violation of § 924(c). Also on July 12, 1995, a separate one-count indictment was returned against Defendant Michael Lee Walker charging him with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Both Defendants have moved to suppress evidence discovered as a result of a warrantless search of their persons by law enforcement officers following a traffic stop of the vehicle in which they were both passengers. The Government filed timely resistances to both Defendants' motions, and moved to have the two cases consolidated for the purposes of these pretrial motions. After a hearing on the Government's motion to consolidate, the court granted the Government's request.

On September 6, 1995, the court held an evidentiary hearing on the motions to suppress. The United States was represented by Michael Hobart, Assistant United States Attorney, of Sioux City, Iowa. Defendant Michael Menard was represented by Nick Drees, Assistant Federal Public Defender, of Des Moines, Iowa. Defendant Michael Walker was represented by counsel Gene A. Wickey of the Law Office of Gene A. Wickey, P.C., in Sioux City, Iowa. At the hearing, the United States presented the testimony of Officers Brad Hawley and Zach Larsen of the Spencer, Iowa, Police Department. Defendants offered no testimony at the hearing. At the conclusion of the hearing, the court informed the parties that they could submit any additional authorities by 4:00 p.m. on September 7, 1995. This matter is now fully submitted.

II. FINDINGS OF FACT

For the purpose of these motions only, the court finds the following facts:

At approximately 1:50 a.m., on May 2, 1995, Officer Brad Hawley of the Spencer, Iowa, Police Department was patrolling in his police cruiser, a Chevrolet Suburban, on Highway 71 on the north end of Spencer when he met an approaching car which did not dim its high-beam headlights after Officer Hawley had flashed his high-beam headlights at it.1 Officer Hawley proceeded to stop the vehicle for this most minor of traffic violations. Three people were in the stopped car, a female driver and two male passengers. Lisa Jensen was the driver of the vehicle. Officer Hawley asked for Jensen's driver's license, and Jensen complied. From a prior arrest, Officer Hawley recognized Defendant Walker as the male passenger who was seated on the car's rear seat. In January of 1995, Officer Hawley had arrested Walker for public intoxication and possession of a controlled substance. Defendant Menard was identified as the male passenger on the front seat.

Officer Hawley had previous information from the Iowa Great Lakes Drug Task Force that Walker used drugs and was possibly involved in drug sales. Because of this information, Hawley asked Jensen for permission to search the car. Although Jensen was unsure of her authority to grant permission for such a search because the vehicle had been lent to her by Jim Stegman, Jensen gave Hawley permission to search the vehicle. Officer Hawley had the car's occupants exit it so that he could search it. The three individuals stood at the rear of the vehicle. Officer Hawley then commenced a search of the car.2 Hawley located a knife in his search of the car, but no contraband. While Hawley was searching the vehicle, Officer Zach Larsen arrived as a back-up to Hawley. Hawley stopped his search and went to speak with Larsen. Larsen reminded Hawley that they had received an officer safety warning that Walker was believed to be armed with an automatic pistol. The warning was placed on a clipboard at the Spencer Police Department two or three weeks before the stop and stated that a Deputy Kramer of the Clay County Sheriff's Office had received information from a confidential informant that a Mike Walker was alleged to be carrying a pistol. Based on this information and the officers' concern for their personal safety, the officers decided to pat down Walker for weapons. Hawley informed Walker of their decision to pat him down for weapons. During Hawley's pat down he located a hard object under Walker's right arm. Upon further investigation, the object was determined to be a .32 caliber pistol. Walker was then placed under arrest. Drugs were subsequently found on Walker, as well, but not until after a decision had been made to pat down Menard for weapons.

Once Hawley had arrested and secured Walker, Menard was asked if he too was carrying a weapon. Menard initially denied having a weapon on him. However, upon being informed by Larsen that he was going to pat him down for weapons, Menard admitted that he was carrying a .410 in his pocket. Menard handed over the weapon. He was then placed under arrest and searched. The resulting search revealed that Menard had on his person ten small plastic bags containing a white powder.

Officer Hawley transported Menard to the Spencer Police Department in his vehicle. After Menard was transported, Hawley searched the passenger compartment of his vehicle and found a plastic cigarette wrapper containing a small amount of white powder and a white rock.

III. CONCLUSIONS OF LAW

(Including some ultimate findings of fact)

Because of overlap in some of the issues raised in both Defendants' motions, the court will proceed by addressing each of the individual issues raised in the motions seriatim. Apart from whether or not Officer Hawley had grounds to stop the vehicle, the court finds each of the issues presented by the motions to suppress to be a very close question.

A. The Vehicle Stop

Initially, the court must determine an issue raised by Defendant Walker, which is whether Officer Hawley had reasonable suspicion to stop the vehicle in which he was riding. The court concludes that the reasons articulated by Officer Hawley are sufficient to provide a reasonable suspicion justifying an investigative stop of the car driven by Lisa Jensen. "`Whether the particular facts known to the officer amount to an objective and particularized basis for a reasonable suspicion of criminal activity is determined in light of the totality of the circumstances.'" United States v. Halls, 40 F.3d 275, 276 (8th Cir.1994) (quoting United States v. Garcia, 23 F.3d 1331, 1334 (8th Cir.1994)); see United States v. Cummins, 920 F.2d 498, 501 (8th Cir.1990), cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448, 449 (1991).

Here, Officer Hawley observed Jensen's vehicle fail to dim its bright lights when approaching an oncoming vehicle, a traffic violation under Iowa law. "It is well established that a traffic violation—however minor — creates probable cause to stop the driver of a vehicle." United States v. Barahona, 990 F.2d 412, 416 (8th Cir.1993); see Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); United States v. Hamby, 59 F.3d 99, 101 (8th Cir.1995); United States v. Johnson, 58 F.3d 356, 357 (8th Cir.1995); Halls, 40 F.3d at 276; United States v....

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