MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS
JULIE A. ROBINSON, District Judge.
This matter is before the Court on Defendant's Motion to Suppress (Doc. 28) evidence derived from a search of Defendant Shawn Turner's person and the vehicle in which he had been a passenger. On September 4, 2013, the Court held an evidentiary hearing on the motion to suppress. Defendant filed a post-hearing brief on September 27, 2013, and the Government responded on October 3, 2013, at which time the matter went under advisement. Having reviewed the evidence and arguments presented by the parties, the Court is now prepared to rule. The Court will suppress the marijuana and the firearm discovered by these officers because the Government has failed to meet its burden of showing that the searches were lawful.
Based on the testimony and the videotape evidence submitted at the suppression hearing,  the Court finds the following facts by a preponderance of the evidence. On March 15, 2013, Topeka Police Bike Unit officers-Officer Lance Green, Corporal Jayme Green, and Officer Joseph Ralston-approached a red Pontiac sedan that was illegally parked in a fire lane at a busy convenience store parking lot at Sixth and Carnahan in Topeka, Kansas. All three officers were armed and in uniform. Defendant Shawn Turner was in the process of exiting the driver's side of the Pontiac, but started to get back into the vehicle and reach for the floorboard after he noticed the officers. As the officers approached, Defendant was seated in the driver's seat with the door open and his feet sticking out. He then exited the vehicle and shut the door behind him.
Officer Green asked Defendant for identification and Defendant was cooperative. He gave Officer Green his Kansas identification, which he retrieved from a stack of credit cards in his pocket. He did not have a driver's license. At this point, the officers asked Defendant to move to the rear of the vehicle with them and discussed with Defendant his travel plans. Officer Ralston looked inside the vehicle through the windows. Both front door windows were closed, but both back door windows were open.
Defendant told Officer Green that his girlfriend, Maria Richard, had driven the vehicle and parked in the fire lane, and that she was inside the store buying motor oil. Richard then walked out of the convenience store with a bottle of oil, and confirmed that the Pontiac was her car and that she had been driving. Richard testified that she shared the vehicle with Defendant, that he had some of his possessions in the car, and that he sometimes put his own money toward gas and repairs for the vehicle. She testified that the Pontiac was their primary form of transportation and that he drove the vehicle with her permission.
Defendant stood behind the vehicle with Corporal Green and Officer Ralston while Officer Green spoke to Richard on the passenger side of the vehicle about the fire lane violation. Richard looked through her purse for her ID. At this point, Defendant and Richard spent several minutes talking to the officers and they all appeared to be waiting for something. Officer Green ran both Richard's and Defendant's identifications through dispatch for "wants and warrants, " although he cannot recall exactly how far into the encounter he did this. And he could not recall if he checked for Richard's record at the same time as Defendant's. Officer Green admitted that he initially did not suspect Richard or Defendant of any criminal activity and that they were being held for the sole purpose of a wants and warrants check. Officer Green then asked Richard for her insurance information, so she then opened the passenger side door to retrieve documents. That door remained open for the rest of the encounter. Officer Green walked around to the driver's side of the vehicle and leaned his head in through the open window on the back door, remaining there for at least a full minute.
Defendant spoke with Corporal Green and Officer Ralston behind the vehicle while Officer Green spoke to Richard. Defendant was cooperative and the officers testified that he was not threatening and his behavior raised no concerns. Defendant was extremely talkative, but comfortable. Defendant appeared relaxed, at one point calling out "C.J.!" to an acquaintance walking into the convenience store, and "TGIF!" Defendant held in his hands what appeared to the officers to be a Black and Mild cigar, and eventually emptied its contents into a plastic bag in front of them in a very calm manner. Officer Ralston described Defendant's actions as methodical and deliberate. The officers knew from their training and experience that marijuana users sometimes empty and refill a cigar such as this one with marijuana. Defendant put the empty cigar back into his right front pocket. Officer Ralston noticed a white string with a knot hanging out of Defendant's left front pocket.
Defendant repeatedly adjusted his pant legs-his pants were baggy-and put his hands in his pockets several times. Officer Ralston told Defendant to keep his hands out of his pockets; Defendant said "alright" and advised he was looking for his lighter. Officer Ralston asked if he had "anything" on him. Defendant replied, "no man, " and patted his right front pocket. Officer Ralston said, "I'm going to pat you down. That way you can go into your pockets." Officer Ralston was primarily concerned with Defendant's right front pocket because it was facing away from him.
Officer Ralston instructed Defendant to turn around with his back toward the officer and place his hands behind his back; Defendant complied. Officer Ralston was wearing gloves during the pat down. He first patted down Defendant's right front pocket and, without asking, pulled out the contents: a cigar, a phone, and a lighter. He placed the lighter in Defendant's hands and returned the other items to Defendant's pocket. At this point, Officer Ralston testified that he was no longer worried that Defendant possessed a weapon, but he continued to pat down Defendant's back pockets, then his left front pocket. On the exterior pat down of the left front pocket, Officer Ralston asked "What is this right here?" He stated on the video that it felt like there was a baggie and asked if something was in it. Officer Ralston testified that he felt two "semi-soft packages, " which he believed contained marijuana based on his training experience. Defendant told Officer Ralston to pull it out. He first retrieved a stack of credit cards and a packet of kool-aid, then a small drawstring canvas bag. Within seconds, the officers handcuffed Defendant and Richard. Defendant asked if Richard was under arrest too. The officers emptied all of Defendant's pockets and one of them stated that if they could not find anything more, they were going to give Defendant a ticket and "kick him loose."
While Officer Ralston continued to empty Defendant's pockets, Corporal Green opened the driver's side front door and leaned inside the vehicle at approximately the 9:14 mark. Officer Green moved to the passenger side and leaned his entire body inside the front passenger area through that open door. They instructed Defendant and Richard not to talk. They did not obtain consent to search the vehicle. The officers spent the next eleven minutes searching the vehicle, including the trunk. At the 12:51 mark, Corporal Green can be seen on his knees looking inside the front driver's side of the vehicle.
While Officer Green and Corporal Green searched, Officer Ralston eventually directed Defendant and Richard to stand to the side and rear of the vehicle and engaged them in conversation. Defendant continued to exhibit a talkative and relaxed demeanor with Officer Ralston during the vehicle search. He talked about "smoking weed" on the highway and in the privacy of one's own home. He discussed the harm of driving while under the influence of alcohol versus marijuana. He joked with the officers, making fun of their shoes.
Dispatch returned an active but non-extraditable Missouri warrant for Defendant. Officer Green testified that they would normally release a person with a non-extraditable warrant. Officer Green could not recall whether the records check came back before or after the pat down. Officer Ralston testified that Officer Green told him about the outstanding warrant after he handcuffed Defendant. The video does not make clear exactly when the records check was returned. However, it appears that they were waited for something other than the vehicle search between the time they discovered the marijuana the time they informed Defendant he was being taken in for being a felon in possession of a firearm, a period of approximately twenty minutes. At about the 16:55 mark, Officer Green asked Defendant and Richard if they had ever been convicted of a felony. At the end of the thirty minute encounter, Officer Green informed Defendant he had a felony and could not own a gun "for a period of time." The officers told Defendant and Richard that they were being transported to talk to a detective about Defendant's criminal history.
Officer Green did not return Defendant's ID at any point during the encounter. Corporal Green testified that Defendant was not free to leave the scene of the encounter from the time the officers first came into contact with him. Indeed, Defendant was surrounded by three officers throughout the encounter. Officer Green testified that he had no reason to place Defendant under arrest until they discovered the marijuana in his pocket and that they never had a reason to arrest Richard.
Topeka Police Officer Jake Cobler testified that Defendant made unsolicited incriminating statements to him while being transported to the Shawnee County Jail. He admitted to having a prior felony conviction and asked when he could have his gun back. Special Agent Kirk Steward testified that he interviewed Defendant at the Topeka Police Department and that he waived his Miranda rights before making incriminating statements.
A. The Patdown ...