United States District Court, D. Kansas
MEMORANDUM AND ORDER
MONTI L. BELOT, District Judge.
This case comes before the court on defendant Tyler Sims' motion to suppress. (Doc. 49). The motion has been fully briefed and is ripe for decision. (Doc. 56). The court held an evidentiary hearing on April 14, 2014. Sims' motion is granted in part and denied in part for the reasons herein.
Wichita Police Detective Eddie Padron was involved in an undercover operation in October 2013. Padron learned that Angel Lopez, a co-defendant, was selling methamphetamine and Padron set up a buy with Lopez. After the first buy in early October, officers followed Lopez to 4200 East Harry. At that location, officers observed Lopez meet with an unknown individual. Officers believed that Lopez purchased the methamphetamine from the unknown individual prior to selling the drugs to Padron. The unknown individual was later identified as co-defendant Raul Marquez-Ramirez (Marquez). Officers determined that Marquez lived at 4202 East Wilma. Officers began surveillance on the Wilma house.
Padron conducted three additional buys from Lopez. Prior to each buy, Lopez was observed meeting with Marquez. During the undercover operation, the officers did not observe Lopez or Marquez meet with Sims nor did they observe a GMC Yukon at the Wilma house.
The fourth and final buy occurred on October 15, 2013 at 4:54 p.m. After the buy, officers arrested both Lopez and Marquez. Several officers than proceeded to the Wilma house in order to do a "knock and talk." Padron believed that the Wilma house contained methamphetamine. The Wilma house is a duplex and located on a gravel drive directly north of Wilma Street, which runs east to west. The gravel drive is circular and there are other duplexes on that circular drive or cul-de-sac.
Padron, Cowley County deputy Allen, and detective Gary Knowles approached the front door of the Wilma house. Padron was in street clothes and Knowles was wearing a shirt with the word "police" on the back. Detectives Weber, Maben, Miller and Lieutenant Bannister were also at the house and in street clothes. Maben positioned himself in the front of the house and Weber and Miller were in their vehicles on Wilma Street.
Padron knocked on the door and it was answered by co-defendant Emma Velo. Velo stated that she did not live at the house. While talking to Velo, Padron observed a gun holster in the house. Padron was concerned for the safety of the officers and asked Velo to leave the house. Padron and Knowles did a protective sweep inside the house. Allen remained outside with Velo during the sweep.
At some point, either prior to the sweep or during the sweep, a GMC Yukon Denali drove into the gravel drive and up to the front of the house. An unknown male was the driver and there were no other occupants. The driver, Sims, had a surprised look on his face when he saw all of the officers at the house. Sims then backed up the Yukon and positioned it south, directly back towards Wilma Street. Maben approached the Yukon and it stopped. Maben asked Sims if he could ask him some questions. Sims asked Maben if he was a police officer. Sims appeared to be nervous and was looking around his Yukon and outside. Weber and Miller approached the Yukon from Wilma Street.
Maben asked Sims to get out of the Yukon. Sims got out. Maben testified that he wanted Sims out of the Yukon because Maben was concerned for the safety of Weber and Miller who were on the gravel drive in front of the Yukon. Maben then patted Sims down because he thought Sims was acting suspicious and believed him to be engaged in criminal activity. Maben then asked Sims if he could check his pockets. Sims consented. Maben discovered a wad of cash in one of Sims' pockets. Sims stated that he had just come from the bank.
Weber asked Sims his name and then identified himself. Weber recognized Sims from a civil investigation which occurred in January 2013. The investigation concerned a threat and Sims was the alleged victim. Weber then questioned Sims about his reasons for being in the area. Sims stated that he had pulled in the drive to turn around because he had made a wrong turn. Sims denied knowing any individuals at the house. Weber than approached Velo and asked her if she knew Sims. Velo stated that she had seen Sims on four occasions but did not identify the location or times of the encounters. Weber returned to Sims and asked for permission to search the Yukon. Sims did not give his consent. Padron called detective Bryan Martin to come to the house and perform a drug dog snif around the Yukon. Padron told Martin that Sims was being detained after a traffic stop.
Martin arrived with his drug dog, Kilo, and Martin instructed Kilo to run around the Yukon. Kilo detected drug odor and alerted. Martin left the scene and the remaining officers proceeded to search the Yukon. Presumably, Sims was taken into custody. Padron obtained a search warrant for the house and it was executed after 9 p.m. that evening.
On October 23, 2013, Sims was indicted on a single count of conspiracy to distribute methamphetamine. (Doc. 15). Sims moves to suppress all evidence found on his person, in the Yukon, his identity and the drugs ledgers found in the home which identify him on the ...