Opinion
Case No. 02-40134-01/02-RDR
August 1, 2003
MEMORANDUM AND ORDER
Defendants are charged with possession with intent to distribute approximately 6.5 kilograms of cocaine in violation of 18 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. This case is now before the court upon the motion to suppress filed by defendant Carter. Defendant Fambro has been permitted to join in this motion. The court has conducted an evidentiary hearing upon the motion. After due consideration, the court shall grant the motion based upon the following findings of fact and conclusions of law.
Junction City, Kansas Police Officer James Oehm was on patrol on September 14, 2002. Officer Oehm has considerable experience and training in conducting drug interdiction activities. He has participated in numerous sizable drug seizures. As of September 2002 he was a certified drug dog handler with the dog used in this case. This case involves two separate traffic stops. The first stop was of a gold van. The second stop was of a blue or teal van. Defendants, who were traveling in the blue van, challenge the second stop.
At approximately 12:50 p.m., Officer Oehm stopped a gold van traveling on I-70 because the van drifted over the center line. This was a home football date for Kansas State University, and Officer Oehm was concerned that the driver of the van might be impaired. The driver of the gold van was a man named Chris Ross. He had proper papers to operate the vehicle. Ross was from Dayton, Ohio. The van had been rented in Las Vegas the day before. Ross said it was a round trip rental.
Officer Oehm felt it was suspicious that the van had been driven non-stop from Las Vegas to Junction City. He considered it suspicious that the two male passengers in the van avoided eye contact with him. He also learned that one of the passengers had an arrest for a drug violation and that Ross had an arrest in 1982 for trafficking cocaine. Officer Oehm also considered it suspicious that the person listed as renting the van was not in the van and that the van was to be returned to Las Vegas even though the men inside were from Ohio.
Officer Oehm had his drug dog "Rico" make a run around the van. According to Officer Oehm, the dog "alerted" to the presence of drugs in the van.
An "alert," Officer Oehm stated, is an untrained reaction by the dog to the presence of drugs which the dog's handler has the experience to detect. An "alert" could be a change in the dog's position or his pattern of breathing, according to Officer Oehm. An "indication" is a trained reaction by the dog to the presence of drugs. The "indication" may consist of biting or barking or scratching at the source of the drug odor. Officer Oehm testified that in the interests of protecting property he attempts to look for a dog's "alert" and, in effect, to preempt an "indication."
Officer Oehm searched the gold van for drugs but failed to find any. So, he released the gold van and its occupants. Officer Oehm, however, thought the gold van might be an escort vehicle. He had noticed a teal or blue-colored van with an Ohio tag drive by when he was conducting the stop of the gold van. He called to enlist the aid of other officers in locating the second van. Although the stop of the gold van took 25 to 30 minutes, the second van was spotted not far away.
An officer named Godfrey spotted the second van off of I-70. He was able to read the Ohio tags. Officer Oehm asked Godfrey to run the tags. The dispatcher reported that the owner of the vehicle lived in Dayton, Ohio. At approximately 1:40 p.m., the second van returned to I-70 and drove past Officer Oehm. Officer Oehm recognized the second van and decided to stop the van for violating K.S.A. 8-133. This statute provides in part:
Every license plate shall at all times be . . . in a place and position to be clearly visible, and shall be maintained free from foreign materials and in a condition to be clearly legible.
Officer Oehm observed that, while he was able to read the rear license plate, a bracket around the edges of the rear license plate obscured the top half of the letters spelling O-H-I-O. This is the factual basis for stopping the second van. The second van also had a front license plate which did not have a bracket and was completely visible.
A traffic stop violates the constitutional rights of the persons being stopped if it is "`unreasonable under the circumstances.'" U.S. v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999) quoting, Whren v. United States, 517 U.S. 806, 810 (1996). A traffic stop is reasonable "if the officer has either (1) probable cause to believe a traffic violation has occurred . . . or (2) a reasonable articulable suspicion that `this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.'" Ozbirn, 189 F.3d at 1197, quoting U.S. v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995).
In State v. Hayes, 660 P.2d 1387 (Kan.App. 1983), the court examined the provisions of K.S.A. 8-133. There, a traffic stop was made because the state name "Indiana" was not visible on a license plate, although the nickname "The Hoosier State" was readable. The court held that the traffic stop was proper because the provisions of K.S.A. 8-133 were being violated. The court stated:
While this statute does not specifically state that the state name must be visible when a license plate is displayed, it does state that the tag must be "legible." We read this to mean that all of the tag must be legible, including the state name, which may be the most important information on the tag.
In later cases, courts in this District have found traffic stops for violations of K.S.A. 8-133 to be constitutional. U.S. v. Unrau, 2003 WL 21667166 (D.Kan. 2003) (stop of pickup truck with a filthy license plate and a ball hitch which obscured the officer's vision of the fourth number on the plate); U.S. v. Castro-Holguin, 2003 WL 2006813 (D.Kan. 2003) (tag not immediately visible through a dark tinted cover over the license plate); U.S. v. Poke, 2002 WL 1334862 (D.Kan. 2002) (temporary registration tag taped to rear window obscured by "very dark" window tinting).
"Legible" is commonly defined as "capable of being read or deciphered." WEBSTER'S NEW COLLEGIATE DICTIONARY 656 (7th ed. 1975). "Visible" is commonly defined as "capable of being seen." WEBSTER'S NEW COLLEGIATE DICTIONARY 1308 (7th ed. 1975). "Clearly" is commonly considered to mean "plainly," "easily" or "free from doubt." See WEBSTER'S NEW COLLEGIATE DICTIONARY 207 (7th ed. 1975). To reiterate, the rear tag on the second van had the top half of the letters "O-H-I-O" covered by a bracket. Officer Oehm did not testify that the state name on the rear tag was not plainly capable of being read or seen or that he had difficulty reading or seeing everything on the license plate. The court has studied a photograph of the rear tag. Exhibit 400. In the court's opinion, that tag is plainly and easily capable of being read and seen. The fact that Officer Godfrey and Officer Oehm were able to describe and identify the van while it was moving suggests that the rear tag was not difficult to read, although it is not clear from the testimony whether they were viewing the front or the rear tag.
The court finds that there was no probable cause or reasonable suspicion that the second van was in violation of K.S.A. 8-311. This is not an instance, unlike other cases construing the statute, where all or part of the tag was obscured in a manner which prevented a person from reading the tag or made it difficult for someone to read the tag.
Accordingly, the court finds that the stop of defendants' vehicle was constitutionally unreasonable and shall direct that the evidence discovered following the stop be suppressed. The other issues raised in the pending motions in this matter are made moot as a consequence of granting the motion to suppress. In conclusion, the motion to suppress (Doc. No. 27) is granted.
IT IS SO ORDERED.