Opinion
Case No. 03-40064-01-RDR
December 15, 2003
MEMORANDUM AND ORDER
This case charges defendant with possession of a firearm as a convicted felon. The weapon was found on defendant's person during a traffic stop where defendant was a passenger in a vehicle stopped by Russell County Sheriff's Officer Kelly Schneider for failing to maintain a single lane of traffic on Interstate 70. The court has conducted an evidentiary hearing and is prepared to rule.
Officer Schneider is a well-experienced law enforcement officer who was on duty on July 20, 2002 at about 10:54 a.m. when he stopped an automobile driven by Marlene Brubaker going east on I-70 in Russell County, Kansas. Defendant was a passenger in the vehicle. Officer Schneider testified that he observed the automobile obviously stray outside the right-side edge line twice while traveling less than one-half mile. The weather was clear and dry. There was a steady breeze. The road was straight and level. Officer Schneider thought he observed a violation of K.S.A. 8-1522 which provides:
Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply.
(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
The traffic stop was filmed from Officer Schneider's car on videotape, but the tape has no audio. The court has viewed the tape.
There is no white line on the right edge of the highway where the car was stopped. However, Officer Schneider testified that there was a white line on the stretch of the highway were Ms. Brubaker allegedly strayed from her lane of travel.
After Ms. Brubaker stopped the vehicle, Officer Schneider tapped on the rear right part of the automobile to gain her attention and motioned for her to exit the car. Officer Schneider stated that Ms. Brubaker said she did not realize that she was weaving and that she was talking to the passenger and not paying attention. She told Officer Schneider that the car was a rental vehicle which was rented in Pennsylvania, driven to Colorado, and now was returning to Pennsylvania. Brubaker is a resident of Philadelphia. She had a valid driver's license. The vehicle was rented in her name. She and defendant, her common law husband, had visited her brother in Colorado.
Officer Schneider thought that Ms. Brubaker was unusually nervous. He testified that her hands were shaking visibly. This was not noticeable to the court from the videotape. Officer Schneider also noticed a steering wheel locking device in the back of the car. He felt this was suspicious because in his experience rental cars with such devices had carried drugs or guns.
After doing a computer check on Brubaker's driver's license, Officer Schneider returned the license and the rental agreement to her and told her to have a safe trip. Brubaker started to return to the driver's seat when Officer Schneider asked if he could ask her some more questions. Brubaker assented. Schneider asked if she had any contraband. She replied "no." He asked if she would consent to a search of the car. She replied "no" again. Then, he asked if she would consent to his dog sniffing the exterior of the car. She asked what he was looking for. He replied that he was looking for narcotics. Then, she agreed to the dog sniff.
Officer Schneider was a certified drug dog handler at the time with the dog he used to sniff the rental car. The dog was the type that gives an aggressive alert. Officer Schneider testified that the dog alerted to the trunk of the car. The videotape of the stop shows that the dog jumped against the trunk and both sides of the car as the dog and Officer Schneider circled the vehicle.
Officer Schneider returned the dog to his car and then asked Ms. Brubaker to open the trunk. Officer Schneider testified that as she did so she told him that there was a brand new shotgun in the trunk.
When Officer Schneider looked through the trunk, he saw the box with the new long gun, which actually was a rifle instead of a shotgun. He also noticed an empty pistol holster. Officer Schneider spent five minutes looking in the trunk.
Officer Schneider testified that he asked Ms. Brubaker if there were any pistols in the vehicle and that she replied, "in my purse." According to Officer Schneider, he decided for his own safety at that time to remove defendant from the vehicle and pat him down. When he patted defendant, he noticed a hard object in defendant's pants pocket. The object felt large enough to be a weapon. Officer Schneider did not know what the object was, but he thought it could be a weapon. So Officer Schneider reached in defendant's pocket and removed a pistol which was in a holster. Then, he handcuffed and arrested defendant for carrying a concealed weapon. A subsequent search discovered two pistols in Ms. Brubaker's purse, which was behind the driver's seat.
Defendant was passive and cooperative throughout the traffic stop and search process. No illegal contraband was found in the rental car.
Ms. Brubaker testified that she did not recall weaving and that she did not tell Officer Schneider that she was talking with defendant when he allegedly saw her weaving. She stated that, before he stopped their car, Officer Schneider followed them for some distance, then pulled alongside their vehicle and looked at them, pulled back behind and then signaled them to pull over. Officer Schneider testified that he did not recall whether he pulled alongside Ms. Brubaker's car before he initiated the traffic stop. She stated that she was nervous because she was standing in or close to the lane of traffic as she spoke with Officer Schneider and that he blocked her path to a safer position. The court's review of the videotape does not reveal that Ms. Brubaker was blocked close to a lane of traffic for more than several seconds before Officer Schneider motioned for her to step further away from the lane of traffic.
Ms. Brubaker said she carried the steering wheel locking device, (the "club"), because she had had cars stolen twice. She testified that she told Officer Schneider that she would rather that he not search the car and that when he asked permission for the dog to sniff the car, she said nothing. She said she made no response because it looked like Officer Schneider would proceed with it anyway. She said she felt as if she had no choice.
Ms. Brubaker stated that she was the registered owner of the two pistols in her purse and the long gun which she purchased in Colorado during the trip. She said that she had used the firearm found on defendant at a shooting range in Pennsylvania. She stated that she took the guns with her on the trip because her brother had purchased 35 acres and she thought she could shoot the guns on that property.
On March 5, 2003 Ms. Brubaker filed a lawsuit seeking damages against Officer Schneider for violating her rights against unlawful detention, search and arrest. Case No. 03-1075-JTM. The charge in this case was filed on July 17, 2003.
Arguments for suppression
Defendant's first argument for suppression asserts that there was no lawful reason to stop the car in which he was riding. There are two aspects to this argument. First, in defendant's brief, he suggests that the Kansas statute does not prohibit the alleged weaving by the driver of the vehicle. We disagree. We believe that driving "as nearly as practicable entirely within a single lane" requires that a driver not drift outside the right edge line if practical. Other courts have found reasonable cause for making a stop on the basis of this statute under similar facts. U.S. v. Ozbirn, 189 F.3d 1194 (10th Cir. 1999) (drifting onto shoulder of road twice within one quarter mile); U.S. v. Rivera, ___ F. Supp.2d ___, 2003 WL 22348826 (D.Kan. 2003) (straying twice onto shoulder); U.S. v. Parada, ___ F. Supp.2d ___, 2003 WL 22533163 (D.Kan. 2003) (crossing right-edge line twice and then driving on the line);U.S. v. Mendoza-Gomez, 2003 WL 21087965 (D.Kan. 2003) (touching or crossing right edge line three times over three miles distance); U.S. v. Villanueva, 157 F. Supp.2d 1184, 1188 (D.Kan. 2001) (three times in less than two miles). Therefore, the court finds that the statute provides a proper basis for a stop upon the facts alleged by the government.
The second aspect of defendant's initial argument attacks the factual basis for the traffic stop. Defendant asserts that the car in which he was riding did not drift across the right edge line. Because the stop in this case was a warrantless seizure, the government bears the burden of proving that its actions were justified. U.S. v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994). In this instance, the government must prove that Officer Schneider had a reasonable articulable suspicion that a traffic violation occurred. U.S. v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc), cert. denied, 518 U.S. 1007 (1996). The controlling burden of proof on this matter is proof by a preponderance of the evidence. U.S. v. Matlock, 415 U.S. 164, 178 n. 14 (1974).
Here, the court must weigh the testimony of Officer Schneider who stated that he observed the car cross the line twice within a distance of a half mile against the testimony of Marlene Brubaker who said she did not recall weaving across the line. Officer Schneider was a credible witness in the opinion of the court. His testimony on this topic was more definite than the testimony of Ms. Brubaker on the issue of weaving. The evidence indicates that there were no external factors, such as wind, weather or traffic, which provide a legal excuse for weaving. This distinguishes this case from two cases discussed extensively in defendant's brief — U.S. v. Gregory, 79 F.3d 973 (10th Cir. 1996) and U.S. v. Ochoa, 4 F. Supp.2d 1007 (D.Kan. 1998). Therefore, we find that the government has established by a preponderance of the evidence that Officer Schneider had adequate cause to make the traffic stop in this case.
The second argument made in defendant's brief claims racial profiling. However, no proper evidence has been presented to the court on this argument. Defendant has the burden of proof on this issue. See U.S. v. Armstrong, 517 U.S. 456, 465 (1996). He has not met that burden. Therefore, the court rejects this argument.
Defendant is African-American. Ms. Brubaker is Caucasian.
The third argument made in defendant's brief asserts that the continued detention of defendant and Brubaker while the dog sniff transpired violated the Constitution. We reject this argument.
During a routine traffic stop, an officer may continue to detain a driver and a passenger if, after returning his or her license and registration and serving any citation or warning, the driver voluntarily consents to the officer's additional questioning. U.S. v. Elliott, 107 F.3d 810, 813 (10th Cir. 1997). It is undisputed that the driver in this case did voluntarily consent to additional questioning. Continued detention to permit a dog sniff to occur is not improper if there is voluntary consent to the dog sniff. See U.S. v. Chavira, 9 F.3d 888, 890 n. 1 (10th Cir. 1993). The government has the burden of proving a valid consent. See U.S. v. McSwain, 29 F.3d 558, 562 (10th Cir. 1994) (involving consent to search).
The Tenth Circuit has addressed consensual encounters or detentions which may occur following a traffic stop.
A traffic stop may become a consensual encounter, requiring no reasonable suspicion, if the officer returns the license and registration and asks questions without further constraining the driver by an overbearing show of authority. . . . "A consensual encounter is the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement officer." Whether an encounter can be deemed consensual depends on "whether the police conduct would have conveyed to a reasonable person that he or she was not free to decline the officer's requests or otherwise terminate the encounter." . . . Therefore, an unlawful detention occurs only when the driver has an "objective reason to believe he or she is not free to end the conversation with the officer and proceed on his or her own way."
U.S. v. West, 219 F.3d 1171, 1176-77 (10th Cir. 2000) quoting, U.S. v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996).
Officer Schneider testified that, after Ms. Brubaker refused to consent to a search of the car, he asked if she would consent to a dog sniff. He stated that after she asked what the dog would be sniffing for and she was told "narcotics," she assented. Ms. Brubaker testified that after she refused to consent to Officer Schneider searching the car, she said nothing in response to his request for the dog sniff and then followed Officer Schneider's directive to stand in front of the car while he retrieved the dog to do the sniff. Ms. Brubaker stated that she did not respond because she believed it would be futile to deny the request.
We find Officer Schneider to be the more credible witness on this point. There was no reason for Ms. Brubaker to believe that it would be futile to oppose a dog sniff, since it was not futile to oppose the officer searching the car. In addition, while the audio is missing from the tape of the traffic stop, it appears from the video that Schneider and Brubaker had a fair amount of discussion about his request to search and to conduct a dog sniff. Brubaker did not appear intimidated, bullied or silent regarding the topic of their conversation. Nor did she attempt to deny or revoke consent to conduct the dog sniff while she was standing in front of the car either before or while the dog sniff was being done. After careful review of the matter, we find that the government has proven that Ms. Brubaker consented to continued detention while a dog sniff was performed.
Defendant's reference to U.S. v. McSwain, 29 F.3d 558 (10th Cir. 1994) is not compelling to the court. In McSwain, the court found that a consent to search was tainted by the unlawful detention of the vehicle's driver. In this instance, the vehicle's driver was not unlawfully detained. Rather, she voluntarily consented to her detention to answer questions and to permit a dog sniff to be performed.
Defendant's final argument is that the pat down search of defendant was illegal. We reject this contention. The Tenth Circuit has recently stated:
Police officers may take reasonable steps necessary to protect their personal safety. United States v. Melendez-Garcia, 28 F.3d 1046, 1051 (10th Cir. 1994). An officer may pat-down a suspect if the facts available to the officer would "warrant a man of reasonable caution to believe that a frisk would be necessary to protect himself." United States v. McRae, 81 F.3d 1528, 1536 (10th Cir. 1996). The purpose of the limited pat-down search is not to discover evidence of a crime, "but to allow the officer to pursue his investigation without fear of violence." Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). We consider the "totality of the circumstances" when evaluating the validity of a pat-down. Id.U.S. v. Manjarrez, 348 F.3d 881, 886-87 (10th Cir. 2003). In Manjarrez, the Tenth Circuit held that it was legal for a police officer to frisk the driver of a vehicle before performing an unassisted search of the driver's car. In the instant case, Officer Schneider was not only unassisted, he was dealing with more than one person and had evidence that there were pistols in the car he was searching. He also had probable cause to believe that the car contained narcotics, although this was later determined to be incorrect. We find that the government has established that it was a reasonable precaution under these circumstances to pat down defendant.
Defendant further asserts that it was unreasonable for Officer Schneider to reach into defendant's pants to remove the gun because he did not know the bulge was a gun when he felt it. Officer Schneider thought it could be a gun when he felt the bulge. It was not necessary that he know positively that it was a gun for him to remove the object from defendant's pants. He had reasonable grounds to suspect that defendant was carrying something which could endanger him. This provided adequate grounds to remove the object from defendant's pocket. SeePennsylvania v. Mimms, 434 U.S. 106, 112 (1977).
The case relied upon by defendant, Minnesota v. Dickerson, 508 U.S. 366 (1993), is distinguishable because it concerns an object which the police officer did not believe could be a weapon and the incriminating nature of which was not apparent.
The motion to suppress shall be denied.
IT IS SO ORDERED.