(D.C. No. 6:13-CR-10004-MLB-1) (D. Kansas)
Before McHUGH, McKAY and BALDOCK, Circuit Judges.
ORDER AND JUDGMENT [*]
Carolyn B. McHugh Circuit Judge
Defendant-appellant Troy Bong appeals from his conviction on one count of being a felon in possession of a handgun in violation of 18 U.S.C. §§ 922(g), 924(e). Mr. Bong challenges the denial of his pretrial motion to suppress evidence allegedly obtained in violation of his Fourth Amendment rights and the admission of certain testimony at his subsequent trial. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
On December 22, 2012, Officers Thatcher and Springob of the Wichita Police Department were parked outside a house that was the subject of a drug investigation.The officers observed a car leave the target house and followed the vehicle. The driver of the vehicle failed to activate the car's turn signal 100 feet before an intersection. Based on this traffic violation, the officers initiated a traffic stop. Officer Springob approached the driver's side of the car, while Officer Thatcher approached the passenger side. A woman, later identified as Mr. Bong's wife, was driving the car. Mr. Bong was in the front passenger seat.
Officer Thatcher used his flashlight to look into the passenger side of the vehicle as he approached. Officer Thatcher testified Mr. Bong refused to make eye contact, instead staring straight ahead. Officer Thatcher thought Mr. Bong looked familiar, prompting him to ask for Mr. Bong's identification. Mr. Bong opened the passenger door to hand Officer Thatcher his identification. As Mr. Bong opened the door, Officer Thatcher noticed a cigarette pack between the passenger seat and the door. Officer Thatcher found this suspicious because in his experience people attempting to hide illegal substances often drop them between the seat and door.
After examining Mr. Bong's identification, Officer Thatcher recalled he had previously arrested Mr. Bong on drug, firearms, and parole violation charges. Officer Thatcher asked Mr. Bong if he was still on parole, but Mr. Bong refused to respond. According to Officer Thatcher, Mr. Bong began to exhibit signs of nervousness—heavy breathing, sweating, and refusal to acknowledge the officer. Because Officer Thatcher's prior arrest of Mr. Bong had involved a firearm, the officer became concerned for his and Officer Springob's safety. Officer Thatcher then asked Mr. Bong to exit the vehicle. Mr. Bong initially refused to respond, but he eventually exited the vehicle after Officer Thatcher repeated his order several times.
When Mr. Bong stepped out of the vehicle, Officer Thatcher noticed he was standing so that the right side of his body was turned away. Officer Thatcher also observed a knife clipped into one of the front pockets of Mr. Bong's jacket. Officer Thatcher removed the knife from Mr. Bong's pocket and told him to put his hands on top of the car. He then informed Mr. Bong that he was going to perform a patdown for weapons. According to Officer Thatcher, Mr. Bong hesitated, but eventually put his hands on the top of the car.
Officer Thatcher reached up to place his hands on top of Mr. Bong's hands on the car roof. As he did so, Mr. Bong attempted to back away from the car and evade Officer Thatcher. Because he feared Mr. Bong might have a weapon, Officer Thatcher attempted to maintain control of Mr. Bong's hands. The two struggled briefly, at which point Officer Thatcher tried to throw Mr. Bong to the ground while keeping control of his hands. Both men fell to the ground, still struggling. As Mr. Bong attempted to rise, Officer Thatcher kicked him approximately three times in the abdomen in an attempt to knock him back down. At that point, Officer Thatcher observed a black object resembling a firearm fall to the ground. He immediately yelled "gun, gun!" Aplt. Appx. at 93.
In response to Officer Thatcher's shout, Officer Springob entered the fray and knocked Mr. Bong to the ground. The officers were able to subdue Mr. Bong and place him in handcuffs. After the officers restrained Mr. Bong, they found a firearm on the ground beneath him.
Mr. Bong moved to suppress the evidence obtained during the traffic stop and his arrest, arguing it was obtained in violation of his Fourth Amendment rights. Though he acknowledged the officers had reasonable suspicion to initiate an investigative traffic stop on the basis of the observed traffic violation, Mr. Bong argued the scope of the detention following the traffic stop and the force used by the officers was unreasonable, ultimately transforming the contact into an arrest without probable cause. The district court expressed concern about the level of force used by the officers, but it ultimately concluded Officer Thatcher's actions were justified under the circumstances. The court therefore denied Mr. Bong's motion to suppress.
The case proceeded to trial, during which the Government presented evidence establishing essentially the same facts as in the pretrial suppression hearing. The Government advanced the theory that Mr. Bong dropped the gun during the scuffle with the officers and, by virtue of his status as a felon, was guilty of being a felon in possession of a firearm. Mr. Bong's defense was that another man, Jeremy Fisher, had dropped the gun where it was found and the traffic stop and subsequent scuffle only coincidentally occurred at the same location Mr. Fisher had dropped the gun.
Ms. Bong testified for the defense, stating that although Mr. Fisher was with the Bongs when they traveled to the house under surveillance by the officers, he was nervous about entering. They therefore agreed to drop Mr. Fisher off near the house and to pick him up at a nearby Quik Trip after leaving the house. Mr. Fisher also testified. He claimed the gun was his, but he dropped it and "took off" when he saw the police officers initiate the traffic stop of the Bongs. Aplt. ...