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United States v. Ewing

United States District Court, Tenth Circuit

August 13, 2013




This matter comes before the Court on Defendant Robert Benjamin Ewing’s Motion to Suppress Evidence (Doc. 19). The parties have fully briefed the motion and the Court held an evidentiary hearing on July 17, 2013. The Court has thoroughly considered the parties’ briefs and the evidence presented at the hearing, and is now prepared to rule. For the reasons stated below, Defendant’s motion is denied.

I. Factual Background

On the morning of September 24, 2012, Topeka Police Officer Aaron Jones and Sergeant Andrew Beightel were investigating a homicide that occurred overnight at the Topeka Cemetery in Topeka, Kansas. As part of the investigation, Officer Jones and Sgt. Beightel were canvassing the neighborhood around where the body was found, conducting “knock-and-talks, ” where an officer goes from house to house, asking individuals if they know the victim or witnessed anything in relation to the investigation. Officer Jones and Sgt. Beightel were riding in a marked police car which Officer Jones was driving. While canvassing, Officer Jones and Sgt. Beightel noticed a black Chevrolet Impala pass by. Officer Jones observed that the driver was a white male with curly hair, talking on a cell phone and looking around as he passed. Less than one hour later, Officer Jones noticed the Impala pass by again while he sat in his police vehicle, waiting on Sgt. Beightel to conduct a knock-and-talk. Officer Jones testified that the same driver looked at him and gave him an “odd, wide-eyed look.”

When Sgt. Beightel returned to the patrol car, the officers discussed the Impala and agreed it looked suspicious; Officer Jones decided to run the tag through the National Crime Information Center (“NCIC”) . While they waited for the tag check, Officer Jones and Sgt. Beightel followed the Impala. The NCIC search returned a result of “no record, ” which Officer Jones testified usually meant that the tag was expired. Officer Jones activated the emergency lights of his vehicle and pulled the Impala over to the right side of the street based on the tag violation.

Officer Jones approached the driver’s side of the Impala and Sgt. Beightel approached the passenger’s side for safety purposes. Officer Jones and Sgt. Beightel identified the driver as Defendant Robert Ewing. Defendant had no identification and was the only person in the vehicle. Officer Jones told Defendant why he stopped him, and noticed that Defendant had his body turned completely to the left with one arm out the window and an elbow on the steering wheel. Officer Jones believed this posture was intended to shield his view into the vehicle. Sgt. Beightel noticed a clear open bottle containing a beverage sitting in a cup holder. Based on his training and experience, he believed the “long-necked, glass bottle” was an alcoholic beverage. Sgt. Beightel gestured to Officer Jones over the top of the car to remove Defendant from the vehicle. Officer Jones asked Defendant to get out of the vehicle and had him walk towards the rear of the Impala, in front of the patrol car, and stand near the passenger side of the trunk.

After removing Defendant from the vehicle, Sgt. Beightel told Officer Jones about the open container he saw inside the vehicle. Sgt. Beightel remained near Defendant at the rear of the Impala while Officer Jones searched the passenger area. Officer Jones testified that he was searching for other open containers or evidence that would indicate Defendant was driving under the influence (“DUI”), because in his experience, DUI’s are typical when open containers are found.

The open container was located next to the center console of the vehicle. Officer Jones opened the center console where he found a digital scale with white residue on it. He stated he opened the center console because there might have been another open container within the console as it was within Defendant’s reach when he was in the vehicle. Based upon his training and experience, Officer Jones believed that the scale was used in narcotic transactions and that the white residue was cocaine. Officer Jones continued to search the vehicle, where he found another digital scale in the glove box.

After searching the passenger area, Officer Jones walked to the rear of the vehicle and opened the trunk. Officer Jones testified that he was looking for evidence relating to the open container, to a DUI infraction, or to drug-related activity. Inside the trunk, Officer Jones noticed the wooden stock of a rifle sticking out of the end of a blanket. Officer Jones confirmed it was a rifle by flipping over the blanket. Officer Jones notified Sgt. Beightel, who secured the Defendant in handcuffs for safety purposes. The rifle was a .22 caliber rifle with an extended magazine and a sawed-off barrel. Once Defendant was secured, Sgt. Beightel determined the rifle was loaded with a round in the chamber and several rounds in the magazine.

Officer Jones read Defendant his Miranda rights and Defendant waived his rights and agreed to speak to the officers. Defendant told the officers that he previously saw the gun in the Impala but did not know it was currently there and denied that the gun was his. Defendant stated he had borrowed the car from “Brandon.” An insurance card issued to “Brandon Peyton” was later found in the car. Defendant agreed to give a DNA sample; he told Officer Jones that his DNA would be found on the rifle but only because he had handled the rifle a couple of weeks before. Officers also checked the Impala’s Vehicle Identification Number (“VIN”), which did not return a record.

II. Discussion

Defendant moves to suppress evidence of the firearm, arguing that Officer Jones lacked probable cause to search the Impala’s trunk. Defendant contends that the search was not permissible incident to a traffic citation, and that a search incident to arrest was not permissible because he was removed from the immediate vicinity of the vehicle after the open container was discovered. Defendant points to the Kansas Open Container statute. While that law prohibits open containers in vehicles, it provides an exception to open containers in the locked trunk of a vehicle.[1]

The Government responds that Defendant lacks standing to contest the search of the vehicle. Moreover, the search of the passenger area was justified under either the vehicle exception, or as a search incident to arrest, which led to the discovery of the scales that formed the basis of probable cause to search the trunk under the vehicle exception. Finally, the Government maintains that the rifle would have been inevitably discovered during an ...

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