United States District Court, D. Kansas
MEMORANDUM & ORDER
JOHN W. LUNGSTRUM, District Judge.
Defendant Willie Lee Pittman was driving a vehicle on Interstate 35 in Olathe, Kansas when an officer with the Olathe Police Department initiated a traffic stop of the vehicle for following another vehicle too closely. After the officer discovered cocaine in the vehicle that Mr. Pittman was driving, Mr. Pittman was charged with conspiracy to possess with the intent to distribute and to distribute 500 grams or more of cocaine. Mr. Pittman has now filed a motion to suppress (doc. 14) in which he challenges both the initial stop and the scope and length of the subsequent detention as violating the Fourth Amendment. The court held an evidentiary hearing on the motion on January 29, 2014. At the hearing, the officer who initiated the stop testified and the video and audio recordings of the traffic stop were admitted into evidence and played for the court. After thoroughly considering the evidence presented at the hearing, including the court's own repeated review of the video and audio recordings, the court denies the motion.
On July 27, 2013 at approximately 6:53p.m., Officer Nicholas Stein was parked in the center median of Interstate 35 watching northbound traffic for the purpose of highway criminal interdiction. Officer Stein has been a police officer with the Olathe Police Department for approximately eight years and he presently works in the canine unit as an interdiction officer. Officer Stein has served as an interdiction officer for three or four years and he has received specialized training in that regard. Prior to serving as an interdiction officer, Officer Stein was a narcotics investigator for two years.
While Officer Stein was watching northbound traffic, he observed a Gold-colored Yukon SUV travel past his patrol car. Officer Stein noticed that the vehicle had Texas license plates which, through his training and experience, he recognized as a source state for illegal narcotics. Officer Stein put his patrol car into gear and moved into traffic on the Interstate. Shortly thereafter, Officer Stein activated the dash cam of his patrol car and monitored the Yukon, waiting for the driver of the Yukon to commit a traffic violation and enable Officer Stein to initiate a traffic stop. Officer Stein testified that he soon observed that the driver of the Yukon came "within less than one car length" of the vehicle traveling directly in front of the Yukon, a silver Cadillac. Officer Stein initiated a traffic stop based on a violation of a city ordinance that prohibits a driver from following another vehicle more closely than is reasonable and prudent under the circumstances.
Officer Stein exited his patrol car, turned on his audio recording device and then approached the Yukon vehicle from the passenger side to avoid standing too close to traffic on the Interstate. Officer Stein identified himself to the driver of the vehicle and, as it turned out, to the vehicle's sole passenger, a woman in the front seat. Officer Stein explained why he had initiated the traffic stop and requested license and insurance information from the driver, Willie Lee Pittman. Officer Stein also asked Mr. Pittman whether he was the owner of the Yukon. Mr. Pittman replied that the car belonged to his girlfriend. When Officer Stein asked whether the woman in the passenger seat was Mr. Pittman's girlfriend, Mr. Pittman laughed and responded that she was not his girlfriend. While he was waiting for Mr. Pittman to obtain his license and current insurance information, Officer Stein observed an "overwhelming" odor of air freshener coming from the inside of the vehicle. He also noticed "at least three cell phones that were near the center console." Officer Stein testified that, in his training and experience as an interdiction officer, air freshener is routinely used to attempt to mask the odor of certain narcotics and the presence of multiple cell phones is another common indicator of drug trafficking.
At that point, Officer Stein asked Mr. Pittman to step outside the vehicle. Officer Stein testified that he made the request so that he could obtain additional information from Mr. Pittman concerning the citation and so that he could ask questions to Mr. Pittman outside the presence of the passenger in case Mr. Pittman and the passenger offered conflicting details about the nature of their relationship and their trip. Officer Stein then engaged Mr. Pittman in conversation near the front passenger door of Officer Stein's patrol car and he continued to gather information pertinent to issuing a citation. Officer Stein first asked Mr. Pittman whether he understood why Officer Stein had initiated the stop and if that made sense to him. Mr. Pittman replied "Yes, sir, it did make sense." Officer Stein then asked Mr. Pittman whether he felt like he "was maybe a little too close" to the Cadillac and Mr. Pittman can be heard on the audio recording replying "I do."
Looking at Mr. Pittman's driver's license, Officer Stein then asked Mr. Pittman about the location of his city of residence and Mr. Pittman indicated that it was "right next" to McAllen, Texas. Officer Stein next asked Mr. Pittman about his travel plans, and he indicated that he was going to visit his grandmother. When Officer Stein inquired about where Mr. Pittman's grandmother lived, he responded immediately with a full, exact address that, to Officer Stein, seemed rehearsed. Officer Stein then asked Mr. Pittman about the passenger in his car, and Officer Stein testified that he perceived a delay or hesitation before Mr. Pittman responded, "Samantha." Mr. Pittman told Officer Stein that he had known Samantha for two to three years. When Officer Stein then asked how long Mr. Pittman was planning to stay in town, Mr. Pittman replied that he had to go see his grandmother because his brother had injured his knee at work in an accident and then he needed to check on him so that they were going to spend a few days.
Officer Stein then left Mr. Pittman at the patrol car while he again approached the Yukon for the purpose of verifying that the VIN number of the vehicle matched the VIN number of the insurance card and for the additional purpose of communicating with the passenger in the vehicle. After checking the VIN number, Officer Stein asked Samantha to exit the vehicle and then inquired about her travel plans and her relationship with Mr. Pittman. Samantha told Officer Stein that they were traveling to Kansas City so that Mr. Pittman could visit his daughter and his grandmother and that she and Mr. Pittman had known each other for about two months. At that point, Officer Stein asked Samantha to step back toward his patrol car. By that time, other officers had arrived at the scene. Officer Stein then asked Mr. Pittman to sit in the back of another patrol car and explained that he was going to run his drug-detection dog around the Yukon to see whether the dog would alert to any odors. Following the dog's positive alert, Mr. Pittman and Samantha were detained, the vehicle was searched and Officer Stein uncovered cocaine in the vehicle. From the time that Officer Stein approached the passenger window of the Yukon at the outset of the stop until the time when the dog alerted on the vehicle, approximately 17 minutes passed.
The Fourth Amendment protects "persons, houses, papers, and effects  against unreasonable searches and seizures." United States v. Cash, 733 F.3d 1264, 1273 (10th Cir. 2013) (quoting U.S. Const. amend. IV). A traffic stop is a "seizure" for purposes of the Fourth Amendment and such stops are analyzed under the principles developed for investigative detentions in Terry v. Ohio, 392 U.S. 1 (1968). Id. The evaluation of the reasonableness of a traffic stop is a two-part inquiry. Id. First, the court determines whether the officer's action was justified at its inception. Id. Second, the court determines whether the stop was reasonably related in scope to the circumstances which justified the interference in the first place. Id. Mr. Pittman, in his motion, challenges the legality of the initial stop and the duration of the stop.
Under Tenth Circuit law, an initial traffic stop is valid under the Fourth Amendment if it is based on an observed traffic violation. Id. (citing Swanson v. Town of Mountain View, Colorado, 577 F.3d 1196, 1201 (10th Cir. 2009)). Officer Stein testified that he observed the Yukon come within less than one car length of the Cadillac immediately in front of it and that he initiated the stop because Mr. Pittman was following the Cadillac too closely. The particular ordinance at issue reads as follows:
The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the ...