Opinion
Case No. 04-40036-01-SAC.
June 22, 2004
MEMORANDUM AND ORDER
This case comes before the court on defendant's motion to suppress search of his person (Dk. 21). Defendant was indicted for possessing a firearm while being a user of controlled substances, pursuant to 18 U.S.C. § 922(g)(3).
Defendant's motion to suppress the search of his person challenges the reasonable suspicion to justify his seizure and detention, as well as the reasonable suspicion that he was armed and presently dangerous. Having conducted an evidentiary hearing, heard the arguments of counsel, and reviewed the evidence and applicable law, the court is ready to rule.
FACTS
On November 5, 2003, at approximately 4:40 p.m., Topeka Police Department officers Hilt and Berg were on bicycle patrol near Lincoln and Huntoon streets in Topeka, Kansas. This location is within what the officers knew to be the highest violent crime area in town, where open air drug deals are very common. Officer Hilt was very familiar with the area, as he had patrolled it for over ten years. They were patrolling near a liquor store whose owner had complained to them the previous day, as well as at other times, about what he believed to be lots of open air drug activity in his parking lot. The owner had stated that individuals who did not do business in his store would walk up to vehicles in his parking lot, converse with the driver, and make hand gestures during these transactions.
As the officers approached the liquor store on their bicycles, they observed two black males standing near a vehicle, parked in front of the liquor store with its engine running. The individuals did not appear to be entering or exiting the vehicle, but were leaning into the open passenger door of the vehicle, talking to the driver while standing in the space between the open door and the vehicle. The suspects, later determined to be defendant Ransom and Gwendell DeClerk, were engaging actions resembling those the owner had recently and repeatedly complained about. The vehicle obstructed the driveway to the store and the sidewalk, impeding vehicular and pedestrian traffic in violation of a city ordinance. Accordingly, the officers decided to make contact with the individuals.
When the officers were close to defendant on their bicycles, defendant raised his head, saw them, then looked from side to side, causing the officers to believe he was contemplating flight. Defendant then put his hands in the front pockets of his bulky sweatshirt and moved his hands around, quickly and furtively. The officers arrived at the rear bumper of the vehicle a few seconds later, ordered defendant and his companion to put their hands up, dismounted and blocked the suspects' escape route. Neither subject complied with the command Instead, both subjects continued to move their hands around inside the pockets of their sweatshirts.
Officer Hilt then grabbed the two subjects by their shoulders and again ordered them to put their hands up. Defendant complied and raised his hands, but DeClerk did not. Instead, Officer Hilt saw DeClerk discard a plastic baggy, identical to those commonly used for packaging narcotics, inside the vehicle with his right hand Officer Hilt passed defendant to Officer Berg, and was then able to secure DeClerk's hands and handcuff him. Officer Hilt retrieved the plastic baggie and determined it contained illegal substances.
While Officer Hilt dealt with DeClerk, Officer Berg patted down defendant, whom he believed was acting nervously, and felt a solid bulge on the side of his waistband Believing this object was a gun, the officer immediately handcuffed defendant and asked if he had anything on him that was going to get him in trouble. Defendant replied "yes," and Officer Berg asked if he had a gun in his waistband Defendant said "yes," and the officer removed a revolver from the waistband of defendant's pants. Officer Berg learned of the plastic baggie after he had handcuffed defendant, and Officer Hilt learned of defendant's gun after he had secured DeClerk.
MOTION TO SUPPRESS (Dk. 21 24)
Defendant contends that the officers lacked reasonable suspicion to justify his initial seizure and detention. Defendant additionally argues that even if there was reasonable suspicion to make the initial stop, the officer lacked a reasonable belief that he might be armed and dangerous and therefore should not have conducted the protective frisk.
General Law — initial stop
An officer making an investigative detention or a Terry stop must possess articulate reasonable suspicion that the defendant is involved in criminal activity. United States v. Carhee, 27 F.3d 1493, 1496 and n. 2 (10th Cir. 1994). Reasonable suspicion is one that would "warrant a man of reasonable caution in the belief that [a stop] was appropriate." Terry v. Ohio, 392 U.S. 1, 22 (1968) (quotation and citation omitted). Police offics cannot rely upon an "unparticularized suspicion or hunch." Brown v. Texas, 443 U.S. 47, 52 n. 2 (1979); United States v. Fernandez, 18 F.3d 874, 878 (10th Cir. 1994). "While the necessary level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence, the Fourth Amendment requires some minimal level of objective justification." United States v. Gutierrez-Daniez, 131 F.3d 939, 942 (10th Cir. 1997) (quotation and citation omitted), cert. denied, 523 U.S. 1035 (1998).
The court considers both the quantity and quality of the evidence when evaluating whether there is reasonable suspicion. The court looks at the factors enumerated at the suppression hearing, "both individually and in the aggregate, and determine[s] whether, under the totality of the circumstances, those factors give rise to a reasonable suspicion of criminal activity." United States v. Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998) (citation omitted). The court "judge[s] the officer's conduct in light of common sense and ordinary human experience." United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997) (citation omitted). "This approach is intended to avoid unrealistic second-guessing of police officers' decisions and to accord appropriate deference to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions." Gutierrez-Daniez, 131 F.3d at 941 (quotation omitted).
Among the many factors to be considered when examining reasonable suspicion are furtive gestures, United States v. Ridley, 162 F.3d 1175, 1998 WL 778381, *3 (10th Cir. 1998) (Table) ("Although we do not believe a "furtive" movement, standing alone, supports a Terry search, we think it is a factor to consider when examining reasonable suspicion"); 2) presence in a high crime area, Illinois v. Wardlow, 528 U.S. 119 (2000) ("An individual's presence in a "high crime area," standing alone, is not enough to support a reasonable, particularized suspicion of criminal activity, but a location's characteristics are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation); and 3) nervousness, United States v. Johnson, 364 F.3d 1185, 1192 (10th Cir. 2004) ("nervousness, even if it may be a normal reaction, is still among the pertinent factors a reasonable law enforcement officer would analyze in investigating possible crimes, and should not be completely disregarded," finding district court erred in not including nervous behavior in the totality of the circumstances in evaluating initial Terry stop.)
The circumstances are examined at the time the defendant is seized. United States v. Harris, 313 F.3d 1228, 1235 (10th Cir. 2002), cert. denied, 537 U.S. 1244 (2003).
"[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 439 (1991).
Petersen v. Farnsworth, ___ F.3d ___ (10th Cir. June 15, 2004). "[A] seizure requires either the use of physical force by the police officer or submission by the individual to the police officer's assertion of authority." Harris, 313 F.3d at 1234 (finding defendant who ignored officer's request for identification and continued walking was not seized until the officer implemented physical force by removing defendant's hands from his pockets and escorting him to the police car), citing Bella v. Chamberlain, 24 F.3d 1251, 1255 (10th Cir. 1994), and California v. Hodari D., 499 U.S. 621, 626 (1991).
General law — protective search
The Tenth Circuit recently reviewed the law regarding protective searches for weapons, stating:
The standard for determining whether a protective search for weapons in the absence of probable cause to arrest or search is reasonable under the Fourth Amendment has been established since the Supreme Court's landmark decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the Supreme Court concluded that an officer may conduct a "reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual." Id. at 27. In Ybarra v. Illinois, 444 U.S. 85, 92-93, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the Supreme Court reaffirmed this holding by stating that in the absence of probable cause, a protective search of a person is justified under the Fourth Amendment only if the officer has a "reasonable belief that [the defendant] was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons." See also United States v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996).United States v. Gorman, 66 Fed.Appx. 801, 803, 2003 WL 21186231, *2 (10th Cir. 2003). An officer may take reasonable precautions to protect his safety during an investigative detention. See United States v. Shareef, 100 F.3d 1491 (10th Cir. 1996).
Factors to be examined include, but are not limited to, the following: 1) refusal to comply with an order to remove one's hands from his pockets; United States v. Harris, 313 F.3d 1228, 1236 (10th Cir. 2002); 2) nervousness, Harris, 313 F.3d at 1236; and 3) the suspect's involvement in a crime such as "drug dealing, kidnapping, or prostitution" which is "typically associated with some sort of weapon, often guns." Johnson, 364 F.3d at 1194-95.
Analysis
The court finds that the officers had reasonable and articulable suspicion that defendant was involved in criminal activity. The totality of the circumstances include the defendant's presence not only in a high crime area but also in the precise location about which officers had received complaints of drug dealings as recently as the day before. Defendant was standing in a position near a vehicle in a manner consistent with reported prior drug deals in that location. Defendant made furtive hand and eye movements upon seeing the police approach, and refused to comply with the officer's initial order to put his hands up.
Even if the court were to find that defendant was seized at the moment the officer first ordered "hands up," the court would find reasonable suspicion based upon the factors set forth above other than defendant's non-compliance with that order.
The court additionally finds that "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." See Terry, 392 U.S. at 27. Officers Hilt and Berg testified that they had safety concerns because of multiple reasons: 1) they were in a violent crime area; 2) they were at the very location where two homicides had occurred during recent years; 3) they had no patrol car or other cover; 4) defendants were wearing bulky sweatshirts that could conceal a weapon, but no coats despite the nearly 20 degrees below zero wind chill temperature; 5) defendant's hand motions were at the waistband level where weapons are commonly kept and were not those a person would ordinarily do under similar circumstances, but resembled those they had been trained to recognize as a possible attempt to retrieve a handgun; 6) they knew drugs and guns go "hand in hand" and defendants appeared to be caught red-handed in a drug deal; and 7) the suspects did not comply with the order to raise their hands yet made no attempt to flee. The court fully credits the uncontradicted testimony of these officers. No basis for suppression appears.
IT IS THEREFORE ORDERED that defendant's motion to suppress search of his person (Dk. 21) is denied.