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United States District Court, D. KansasFeb 15, 2001
Case No. 00-40057-DES (D. Kan. Feb. 15, 2001)

Case No. 00-40057-DES

February 15, 2001


This matter is before the court on defendant's Motion to Suppress (Doc. 19). Defendant seeks suppression of various evidence gathered by law enforcement officers and statements made by defendant. On February 8, 2000, the court held a hearing on this matter. After consideration of the evidence presented at the hearing and the papers submitted by the parties, the court is now prepared to rule on this motion. For the following reasons, defendant's motion is denied.


Defendant seeks suppression of evidence seized as a result of two independent encounters with law enforcement officers. Defendant alleges constitutional deprivations demand suppression.

1. First Encounter

On October 4, 1999, at approximately 2:30 a.m., Topeka Police Officer Christopher Bowers was on routine patrol near the 1700 block of S.E. 29th Street in Topeka, Kansas. Officer Bowers observed a 1988 rust colored Chevrolet Caprice straddling the lane marker and weaving within its own lane. At that point, Officer Bowers activated his emergency lights and attempted to stop the vehicle. He noticed there were two occupants in the car at the time. The driver was slow to react to his emergency equipment and drove nearly two blocks before stopping. Officer Bowers also noticed the driver of the vehicle was moving around inside the vehicle in a manner as if he was either attempting to retrieve or remove something from his waistband. Officer Bowers requested back-up assistance. Eventually three other officers arrived and all four officers then initiated a "high-risk" extraction of the occupants. At that time, the driver of the vehicle was identified as defendant, Arthur Williams, Jr. After the occupants of the vehicle were out of the car, Officer Bowers looked into the interior of the vehicle with his flashlight. Officer Bowers testified that from his vantage point, outside the vehicle, he recognized a 9mm "Glock" handgun protruding from under the driver's seat. He collected the handgun, clearing the round from the chamber, and went back to his patrol car.

Officer Bowers testified that he and the other three officers approached the vehicle with their service weapons drawn and ordered, in turn, the occupants out of the vehicle. The driver was co-operative but was handcuffed for officer safety.

As he talked with defendant, Officer Bowers noticed the odor of alcohol on defendant's breath. Defendant's eyes were watery and glassy and his speech was mumbled and slurred. Additionally, Officer Bowers testified defendant had difficulty walking. Due to these observations and defendant's weaving while driving, defendant was placed under arrest for driving under the influence of alcohol or drugs.

Defendant was transported to the Law Enforcement Center where he was administered a breath alcohol test. That test provided a reading of .115. This was above the legal limit of .08 for blood alcohol concentration.

Defendant seeks suppression of the handgun seized by Officer Bowers.

2. Second Encounter

On December 12, 1999, at approximately 11:42 a.m., Officer Gerald Kent Biggs was on routine patrol in the area of S.W. 21st Street and Westwood Drive in Topeka, Kansas. He was traveling west on S.W. 21st Street in an unmarked patrol vehicle. As he was traveling past Westwood Drive, he observed several vehicles parked out on the street and believed there may have been some type of party going on in the area. Considering this to be unusual, Officer Biggs decided to turn around and investigate the area. As he slowed down and began to make a U-turn, a vehicle that was eastbound on 21st Street began to slow down quickly and come to a stop in the inside lane of the eastbound lanes of traffic. The vehicle came to a complete stop just to the east of Westwood Drive. As Officer Biggs made the U-turn, he slowed down and checked his emergency lights to make sure none of them had been activated accidentally. They were all turned off. As Officer Biggs proceeded back eastbound, he went slowly. As he continued east in the inside lane, the other vehicle, also in the inside eastbound lane, then began to proceed slowly and made a lane change out into the right hand lane. The vehicle's signal was activated. The vehicle swerved over into the outside lane, nearly hitting the curb. It then pulled back out in the center of the lane and proceeded eastbound slowly, eventually picking up to normal speed. Officer Biggs had continued eastbound and began following the vehicle. Once it reached 21st and Randolph Streets, a distance of roughly four to five blocks, the vehicle pulled into a convenience store and parked in one of the stalls in front of the store. Officer Biggs pulled in behind the vehicle and activated his emergency lights.

Officer Biggs testified that the vehicle, while not bearing any official decals, did possess internal emergency lights mounted on the front dashboard and the rear shelf. Additionally, the vehicle possessed a forward looking spotlight.

Officer Biggs approached the vehicle on the driver side and made contact with a black male subject in the driver seat. Officer Biggs requested his driver's license. The license identified the driver as defendant, Arthur Williams, Jr. As Officer Biggs was speaking with defendant through the vehicle's window, he detected the smell of burnt marijuana. Additionally, defendant's eyes were allegedly bloodshot and glassy, and Officer Biggs detected the smell of alcohol. At that time, he requested that defendant step from the vehicle and proceed to the rear of the vehicle. Defendant was patted down. Thereafter, Officer Biggs requested a canine unit to the scene. At approximately 11:45 p.m., Officer McKinley and his canine partner arrived. Officer Biggs and defendant then proceeded to the rear of the patrol vehicle while the canine unit conducted a sweep of the vehicle. During this time, defendant did admit to Officer Biggs that he had recently visited a bar and had consumed alcohol. Officer McKinley returned and indicated that the canine unit had "alerted" on the interior of the vehicle. Officer Biggs continued his discussion with defendant and explained to him the procedures involved in a DUI arrest. Officer Biggs subsequently placed defendant under arrest for driving under the influence of alcohol or drugs. Defendant was searched, handcuffed, and placed in the back seat of the patrol vehicle.

Officer McKinley informed Officer Biggs that he observed what appeared to be marijuana residue in the front seat of defendant's vehicle and certain ash in the ashtray, which did not appear to be from a tobacco cigarette. Officer Biggs searched the interior of the vehicle.

Upon searching the trunk, Officer Biggs observed a revolver. Officer Biggs then read defendant his Miranda rights and began to question defendant concerning the firearm. Officer Biggs subsequently asked defendant what he would like done with his vehicle. Defendant responded he would like the vehicle left at the convenience store. Thereupon, Officer Biggs secured the vehicle and received permission to leave the vehicle on the private property. Defendant seeks suppression of the firearm and incriminating responses given concerning the firearm.


1. First Encounter

Officer Bowers' decision to stop defendant's vehicle and detain defendant constitutes a seizure within the meaning of the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 653 (1979). Therefore, the stop is "subject to the constitutional imperative that it not be `unreasonable' under the circumstances." Whren v. United States, 517 U.S. 806, 810 (1996). Traffic stops are reasonable under the Fourth Amendment if the officer (1) has probable cause to believe a traffic violation has occurred, see, e.g., Whren, 517 U.S. at 810, or (2) has a "reasonable articulable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction." United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999) (internal quotation marks and citations omitted). The court, therefore, must determine if Officer Bowers had probable cause to stop defendant, or, in the alternative, whether Officer Bowers had an articulable suspicion that defendant had violated some traffic or equipment regulation. See United States v. Botero-Ospina Finally, the court will not, in its determination of the constitutionality of a traffic stop, consider the subjective motivations of the officer involved. See Whren, 517 U.S. at 813. Instead, the court will consider only the question of probable cause or reasonable suspicion. See id.

In his papers filed in support of this motion, defendant alleges Officer Bowers initiated the traffic stop because defendant and his companion were African-American. However, under cross-examination, Officer Bowers testified that defendant's race did not influence his decision to stop defendant's vehicle. Defendant offered no additional evidence lending any credibility to his racial pretext argument. Because the court finds the traffic stop was justified, the court finds this argument lacking in merit.

The government argues Officer Bowers stopped defendant because he witnessed a traffic violation, specifically defendant's swerving inside and outside of his lane of traffic. Such driving may be a violation of Kansas law. The pertinent statute states:

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.

Kan. Stat. Ann. § 8-1522. The government contends that Officer Bowers observed sufficient weaving to establish probable cause that defendant had violated Kansas law.

Defendant argues the statutory language does not allow strict enforcement of the above statute. The Tenth Circuit has held, "the use of the phrase `as nearly as practicable' in the statute precludes such absolute standards, and requires fact-specific inquiry to access whether an officer has probable cause to believe a violation has occurred." Ozbirn, 189 F.3d at 1198. Probable cause is not established by an officer merely observing someone drive outside the marked lane. See id.

In support, defendant relies on United States v. Gregory, 79 F.3d 973 (10th Cir. 1996). In Gregory, while interpreting a substantially similar Utah statute, the Tenth Circuit held that an officer did not have probable cause when he observed the defendant's vehicle weave once into an emergency lane. See id. at 978. Defendant contends that Gregory compels the court to find Officer Bowers lacked probable cause. However, the facts in Gregory are distinguishable. In Gregory, the defendant was driving a U-Haul truck on winding mountainous roads, during windy driving conditions. See id. The facts of this case indicate defendant was driving a passenger car on a straight, unobstructed road with no adverse weather, while traveling under forty miles an hour. A deviation from the lane seems more likely to generate probable cause under these normal and relatively safe driving conditions. In an unpublished opinion, which involved a motorist driving a sedan on a straight section of interstate with little wind, the Tenth Circuit held that a single swerve over the line was sufficient to generate probable cause. See United States v. Dunn, 133 F.3d 933 (10th Cir. 1998) (unpublished) (considering Kan. Stat. Ann. § 8-1522). In Dunn, the circuit court made clear that Gregory did not establish a bright-line rule, and the court emphasized the differences between driving conditions in distinguishing Gregory. See id. In light of the easy driving conditions encountered by defendant, his swerving over and straddling the lane marker, even if it occurred only once, was sufficient for Officer Bowers to have probable cause to believe defendant had violated Kansas law. See Ozbirn, 189 F.3d at 1198 (holding officer had probable cause when defendant swerved out of lane twice on a sunny, windless day while traveling up a slight grade).

In the alternative, the government contends the traffic stop was supported by Officer Bowers' reasonable suspicion defendant was driving while impaired. Driving a vehicle under the influence of alcohol is a violation of Kansas law. Officer Bowers testified that he originally was concerned the driver may have been impaired. Considering the facts already presented and in light of the early morning hour, the court finds Officer Bowers had sufficient reasonable suspicion that the defendant may have been driving while impaired. See id. at 1199 (finding reasonable suspicion of impaired driving when defendant swerved twice out of lane). See also United States v. Lee, 73 F.3d 1034, 1038 (10th Cir. 1996) (straddling center line supported reasonable suspicion the driver was sleepy or intoxicated). Cf. Gregory, 79 F.3d at 978 (finding no reasonable suspicion of impaired driving even though driver drifted out of lane because officer testified he had no intention of conducting a DUI investigation).

As for the first stop, defendant presents no further argument attacking the validity of the stop or seizure of the firearm. Therefore, because the stop was justified either by probable cause or reasonable suspicion, the seizure of the firearm was legal and the suppression motion should be denied.

2. Second Encounter

As a preliminary matter, the government alleges defendant was not "stopped" by Officer Biggs. In other words, the initial encounter between defendant and Officer Biggs was voluntary and need not be supported by probable cause or reasonable suspicion. In advancing this argument, the government relies on the fact that defendant voluntarily pulled into the convenience store and parked.

Whether an encounter between a law enforcement officer and a citizen is voluntary "depends on whether a reasonable person under the circumstances would believe [he] was not free to leave and/or disregard the official's request for information." United States v. Werking, 915 F.2d 1404, 1408 (10th Cir. 1990). The court finds the critical moment is the point at which Officer Biggs approached defendant's vehicle and initiated a dialogue with defendant. The mere fact that defendant voluntarily pulled into the convenience store does not automatically transform this encounter into a voluntary exchange between a citizen and an officer. Hence, when Officer Biggs approached and requested defendant's driver's license, would a reasonable person have felt free to disregard the request and leave?

The government directs the court to United States v. Klinginsmith, 25 F.3d 1507 (10th Cir. 1994). In Klinginsmith, the defendant's vehicle (in which he was a passenger) was followed by an officer into a gasoline station. The driver parked the vehicle near a diesel pump, and the officer parked his patrol car several feet behind the vehicle. It appears the officer never activated his emergency lights. The driver exited his vehicle and approached the officer. The officer immediately sought permission to ask the driver some questions. The driver consented and the officer began asking several questions. The officer also approached the defendant and asked for his permission to ask some questions. See id. at 1509. The circuit court agreed with the district court when it held "that the preliminary questioning concerning driver's license, car registration, where they were coming from, and where they were going, was a consensual encounter . . . ." Id. at 1509-10.

While at first blush Klinginsmith appears similar to the present case, several small, but hardly insignificant, differences distinguish these scenarios. First, Officer Biggs did activate his emergency lights when he parked behind defendant. An officer's emergency lights are universally recognized by citizens as a commanding show of authority. Second, Officer Biggs approached defendant's vehicle. Their physical relation to one another certainly had the appearance of a traditional traffic stop. Third, Officer Biggs did not seek defendant's permission to ask defendant some questions or see his driver's license. It appears Officer Biggs immediately asked defendant to produce his license. Fourth, while the defendant in Klinginsmith was parked next to fuel pumps with an apparent means of egress, this defendant parked nose first into a parking slip. With Officer Biggs' patrol vehicle behind him, defendant had no physical means of leaving. In light of these distinctions, Klinginsmith is not controlling. The situation in this case appears simply too close in reality to an actual stop. It is highly doubtful a reasonable person would disregard an officer's request when faced with this scenario. Therefore, because this encounter was a detention and not a voluntary encounter, the court must now consider, applying the same standards as above, whether it was supported by probable cause or reasonable suspicion.

The government claims if this was a stop, then it was a legal investigative stop supported by reasonable suspicion. Once again, the government relies on the officer's reasonable suspicion defendant was driving while impaired. The facts indicate defendant came to a complete stop in the middle lane of a four-lane roadway. At that point, defendant then made a somewhat erratic lane change to the outside lane. Such a dramatic response, i.e., coming to a complete stop in the middle of a roadway, to a patrol vehicle not displaying its emergency lights seems to be sufficient to raise a reasonable suspicion that the driver was impaired. Although no authoritative case law could be found on this issue, the Tenth Circuit has ruled seemingly less severe driving deviations supported reasonable suspicion. See, e.g., United States v. Ozbirn, 189 F.3d 1194, 1199 (10th Cir. 1999) (weaving across lane supported reasonable suspicion); United States v. Botero-Ospina, 71 F.3d 783, 788 (10th Cir. 1995) (en banc) (driving slow and weaving supported reasonable suspicion); United States v. Christian, 43 F.3d 527, 530 (10th Cir. 1994) (driving slow while "slumped" at wheel supported reasonable suspicion). Therefore, the initial stop was justified by Officer Biggs' reasonable suspicion that defendant was driving while impaired.

The defendant next attacks the validity of Officer Biggs' search of his vehicle. It is well established that the "automobile exception" permits officers to conduct warrantless searches of automobiles if supported by probable cause. See Carroll v. United States, 267 U.S. 132 (1925). Defendant does not contest the use of the canine unit on his vehicle. See United States v. Morales-Zamora, 914 F.2d 200, 203 (10th Cir. 1990) (holding no individualized reasonable suspicion of drug-related crime is required when a dog sniff is employed during a lawful detention of a vehicle). Additionally, defendant does not dispute that Officer Biggs had probable cause to search the vehicle once the canine unit had "alerted." See id. at 205 ("probable cause to search was supplied when the dog alerted to the vehicles"); United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989) (holding once a dog "alerts" on a vehicle, officers have probable cause to search the vehicle under the automobile exception). Defendant's only argument is that because the dog only "alerted" on the interior of his vehicle, Officer Biggs' search should not have been extended to the vehicle's trunk.

Supreme Court precedent makes clear that once probable cause is established to search a vehicle, that search may, related to the object sought, extend to all parts of the vehicle and all containers therein. See United States v. Ross, 456 U.S. 798, 825 (1982) ("If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search."). However, the Tenth Circuit has bifurcated a car for the purposes of a probable cause determination. For example, in United States v. Nielsen, 9 F.3d 1487 (10th Cir. 1993), the court held that an officer who smelled burnt marijuana inside a vehicle did not have probable cause, based solely on the smell, to search the vehicle's trunk. In essence, the circuit court created a limitation on an officer's vehicular search even though the search was conditionally supported by probable cause. However, this particular limiting rule does not apply if corroborating evidence of contraband is found in the passenger compartment. Once an officer "smell[s] marijuana in the passenger compartment and finds corroborating evidence of contraband," United States v. Parker, 72 F.3d 1444, 1450 (10th Cir. 1995), he then has probable cause to search the entire vehicle. See id. (citing Ross, 456 U.S. at 825; Loucks, 806 F.2d at 210-11).

In Nielsen, the Tenth Circuit was faced with a consensual search of the passenger compartment, which produced no contraband. See 9 F.3d at 1491. Of course, when an officer detects the smell of narcotics in the passenger compartment, he/she then has probable cause to search the passenger compartment. See United States v. Loucks, 806 F.2d 208, 209-10 n. 1 (10th Cir. 1986).

In the present case, Officer Biggs testified to smelling burnt marijuana emanating from defendant's vehicle. At that point, independent of the canine "alert," Officer Biggs had probable cause to search the passenger compartment. Upon finding the marijuana residue, which Officer Biggs testified consisted of leafy vegetation, and the suspicious ash, Officer Biggs had probable cause to search the vehicle's trunk.

Additionally, even if this were a case where no corroborating evidence was found in the passenger compartment, Officer Biggs may still have had probable cause to search the trunk. See Nielsen, 9 F.3d at 1491 ("If this were a case of an alert by a trained drug sniffing dog with a good record, we would not require corroboration to establish probable cause. The dog would have no reason to make a false alert."). The limitation in Nielsen is premised on the notion of human error and possible overzealous law enforcement practices. Defendant has not offered, nor does the court know of, any reason why this limitation need be applied in the context of a canine "alert." In any event, because Officer Biggs had a positive "alert" by a canine unit combined with his own detection of burnt marijuana coupled with corroborating evidence of contraband, he had ample probable cause to search the entire vehicle, including the trunk. See Parker, 72 F.3d at 1450. See also Klinginsmith, 25 F.3d at 1510 (opining that "when the dog `alerted,' there was probable cause to arrest [defendants] and to search the vehicle without a warrant under the automobile exception . . .") (emphasis added) (dog alerted on outside quarter-panel). Therefore, because the initial stop was justified and the subsequent search supported by probable cause, the court finds suppression inappropriate as to the seized firearm.

"But for a human sniffer, an officer with an incentive to find evidence of illegal activities and to justify his actions when he had searched without consent, we believe constitutional rights are endangered if limitations are not imposed." Nielsen, 9 F.3d at 1491.

No evidence attacking the record or competence of the canine unit in question was presented.

As for the statements made in regards to the firearm, defendant makes no argument attacking the validity of his waiver of his constitutional rights. Officer Biggs testified that defendant acknowledged his rights and voluntarily waived those rights. The court sees no justification for suppressing said statements. The motion will also be denied on this issue.


In sum, the court finds both stops were justified and the seizure of evidence and elicitation of statements lawful. Hence, defendant's motion is denied on all issues.

IT IS THEREFORE BY THIS COURT ORDERED that the defendant's Motion to Suppress (Doc. 19) is denied.