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United States v. Gaines

United States District Court, D. Kansas

April 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DESMOND S. GAINES, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Desmond Gaines' Motion to Suppress Evidence (Doc. 46). Defendant contends that evidence seized by law enforcement from an encounter on August 24, 2015 was seized in violation of his Fourth Amendment rights. The Government has responded (Doc. 50), and an evidentiary hearing was held on March 8, 2017. The Court has reviewed the evidence and arguments adduced at the hearing and is now prepared to rule. As explained more fully below, Defendant's motion is denied.

         I. Factual Background

         Based on the testimony and evidence admitted at the hearing on this motion, the Court finds as follows. On August 24, 2015, Officer Carl Rowland and Officer Shenee Davis, who were both patrol officers with the Kansas City, Kansas Police Department, were dispatched to the Wilhelmina Gill Center, at 645 Nebraska Ave. Kansas City, Kansas, following an anonymous 911 call.[1] The unidentified caller stated there was a “light-skinned” man in all red clothing selling “wet, ” which is otherwise known as phencyclidine (“PCP”). The caller stated that the man was in the parking lot of the Wilhelmina Gill Center sitting in a white car, but he did not know the type of car that the man was driving. The caller stated that he was located at the Wilhelmina Gill Center when he was observing the man.

         During his testimony, Officer Rowland testified that he was familiar with the Wilhelmina Gill Center and the surrounding area. Officer Rowland testified that he had responded to several drug-related calls at the Wilhelmina Gill Center. In fact, police dispatch records showed that between March and August 2015, officers had been dispatched to the Wilhelmina Gill Center eight times for reported narcotics sales or for medical calls involving reactions to PCP or other substances.[2] Officer Rowland further testified that based on his experience, he was familiar with the strong, overpowering chemical odor of PCP and with behavior resulting from ingestion of PCP.

         Officer Mark Wilcox, a patrol officer for the Kansas City, Kansas Police Department, was working on August 24, 2015 as an off-duty security guard at the Frank Williams Outreach Center, which is directly across the street from the Wilhelmina Gill Center. Officer Wilcox testified that he wears his uniform at the Frank Williams Outreach Center, including his police radio. Prior to the call being dispatched, Officer Wilcox was patrolling the parking lot of the Frank Williams Outreach Center. He noticed a man in all red clothing wiping down his car, a white Cadillac, in the Wilhelmina Gill Center parking lot. Not long after this observation, Officer Wilcox heard the dispatched call that a man wearing all red was selling drugs. As Officer Rowland and Officer Davis arrived on scene, Officer Wilcox radioed about his observation of the man wearing all red entering the white Cadillac. Officer Wilcox did not at any time observe this man conducting a drug transaction.

         Officer Rowland, who was uniformed and driving a marked police cruiser, pulled into the Wilhelmina Gill Center parking lot from the west.[3] Officer Davis, who was also uniformed, followed directly behind him in the marked police cruiser that she was driving. Officer Rowland also observed the man (subsequently identified as Desmond Gaines, the “Defendant”) entering the white Cadillac and observed that Defendant matched the description of light skinned and wearing all red (red hat, red shirt, red pants, and red shoes). Officer Rowland pulled up behind the driver side of the white car, and Officer Davis pulled up alongside Officer Rowland's cruiser, also to the rear of the white car. Both officers activated the emergency lights on their cruisers because their vehicles were both blocking a lane of traffic in the parking lot. While the two police cruisers blocked the white car from the rear, the white car was not blocked in the front or on the right side and Defendant, who was the driver, could have drove forward without obstacle.

         As Officer Rowland approached the driver side of the white car, Defendant, who was sitting in the driver's seat with the door closed, exited the white car and quickly closed the door behind him. Meanwhile, Officer Davis exited her cruiser and approached the rear of the white car. Officer Rowland began to speak to Defendant, who asked Officer Rowland what he was doing; Officer Rowland replied that there was a 911 call about a man matching his description selling drugs. Defendant denied that he was engaged in drug sales.

         Officer Rowland asked Defendant for identification; Defendant responded that his identification was in the car trunk.[4] At this point, Defendant reopened the driver side door and pulled the trunk release. As Defendant began to walk toward the trunk, he began to close the driver side door behind him, but Defendant then caught the door with his hand and the door remained open. Defendant positioned himself between the car and the open driver side door. Meanwhile, Officer Davis began to walk toward the rear part of the car, and then to the passenger side.

         Officer Rowland testified that as soon as Defendant reopened the driver's side door, Rowland smelled a strong chemical odor that based on his training and experience he believed was the odor of PCP. Officer Rowland further testified that once the trunk was ajar, the odor of PCP became stronger. From his position next to the driver side door, Officer Rowland also observed a bottle of alcohol on the center console underneath a walkie talkie radio. Officer Rowland told Defendant that he was going to detain him for having an open container of alcohol within his reach in the car.[5] Photographs taken at the time of the stop depict a bottle of alcohol on the center console with the lid intact on the bottle. Officer Rowland testified that although he also decided to detain Defendant in part because of the strong odor of PCP, he did not tell Defendant this at that time, because he did not want to tip Defendant off that he suspected PCP was present.

         Once Officer Rowland displayed his handcuffs, he observed Defendant becoming agitated and fidgety. Officer Rowland reached for Defendant's left hand to place him in handcuffs. Defendant pulled away from Officer Rowland and reached into the car through the open driver side door. Defendant removed the keys from the ignition, grabbed a black zippered pouch from the driver side floorboard area, turned and shoved Officer Rowland, and fled on foot. Officers Rowland and Davis chased Defendant on foot.

         Defendant fled towards the intersection of Sixth Street and State Street, then ran down an alley between a parking lot and building south of the Wilhelmina Gill Center. When his path of flight was obstructed by a fence, Defendant stopped running and threw the black zippered pouch onto the roof of the building located at 612 State Avenue. Officer Rowland observed Defendant throw the zippered pouch on to the building. Officer Rowland testified that Defendant then turned around in an aggressive stance. Officer Rowland drew his firearm because he was unsure if Defendant was armed. Officer Davis was behind Officer Rowland providing cover. After Officer Rowland commanded Defendant to get on the ground, Defendant complied, but as Officer Rowland holstered his firearm and attempted to handcuff him, Defendant resisted. Officer Davis then deployed her Taser for three cycles at which point Defendant was placed in handcuffs.

         Meanwhile, while Officer Rowland and Officer Davis chased Defendant on foot, Officer Wilcox, who had watched the encounter, walked from the Frank Williams Outreach Center to Defendant's unattended car in the Wilhelmina Gill Center parking lot. The driver side door and the trunk were both still open when Officer Wilcox approached. As he stood outside the car, Officer Wilcox could see inside the car through the open driver side door. Officer Wilcox observed a handgun on the floorboard of the car, a fact that Officer Wilcox relayed to other officers via radio.

         Meanwhile, Officer Rowland obtained a ladder and climbed on top of the building at 612 State Ave. There he recovered the black zipper pouch and its contents: a clear container of PCP, fourteen bags of marijuana, sixty-five bags of crack cocaine, one package of More brand cigarettes, [6] and $641.51 in currency. Inside the car, police recovered a large amount of crack cocaine and some powder cocaine from the center console. Police also recovered the firearm visible on the floorboard of the driver seat, as well as three walkie talkie radios, and a cellular telephone.

         Following Defendant's arrest, Officer Rowland learned that Defendant had an outstanding warrant for his arrest. Officer Rowland testified that under normal practice when he takes someone's identification, he immediately runs a records check for outstanding warrants. But, given Defendant's flight, Officer Rowland was not able to immediately run a records check. Officer Rowland testified that if Defendant had not fled, he would have run a records check and presumably found the outstanding arrest warrant.

         II. Discussion

         Defendant argues that the evidence seized from the car and from the roof of 612 State Ave. was illegally seized in violation of the Fourth Amendment and should be suppressed. More specifically, Defendant argues the anonymous 911 call did not justify the officers' investigative stop, and that there was no intervening circumstance that purged the taint of the Fourth Amendment violation.

         The Court disagrees. This was an initially a consensual encounter for the officers did not detain Defendant, who was in or near his car and who had the ability to leave. The encounter quickly evolved into an investigatory detention, based on the officer's reasonable suspicion of an open container violation and reasonable suspicion that there was PCP present in the car. The investigatory detention was quickly interrupted by Defendant's flight and attempted discard of the zippered pouch, which provided further justification for an investigatory detention. But, even if the initial encounter was an investigatory stop not based upon reasonable suspicion, the attenuation doctrine applies because Officer Rowland would have found Defendant's outstanding arrest warrant upon running Defendant's identification through the system.

         A. ...


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