United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
Cornelius A. Hartz has filed a Motion to Suppress (Doc. 16).
Mr. Hartz's motion asserts that law enforcement officers
unlawfully detained him without reasonable suspicion of any
criminal activity, thus violating his right against
unreasonable seizures under the Fourth Amendment. As a
consequence, Mr. Hartz argues that the court must suppress
evidence about a firearm that law enforcement discovered
during the allegedly unlawful detention as well as statements
Mr. Hartz made to law enforcement officers.
government has responded to Mr. Hartz's motion (Doc. 22).
And, the court conducted an evidentiary hearing on December
4, 2017. After carefully considering the evidence and the
parties' submissions, the court denies Mr. Hartz's
April 5, 2017, around 3:00 p.m., Topeka Police Department
(“TPD”) Officers Justin Long and James Schneider
were patrolling on their bicycles in Topeka, Kansas. Both
officers were wearing TPD uniforms and riding bicycles
bearing TPD markings. After the officers turned down an
alley, they saw two men traveling southbound, some 30 feet
ahead of them in the alley. One man-later identified as Allen
Benson-was walking a bike down the left side of the alley.
The other man-later identified as defendant Cornelius A.
Hartz-was on the right side of the alley, straddling a bike.
Mr. Hartz was seated on the bike with his left foot on the
left pedal and his right foot on the ground. The
officers' body-camera recording shows that the two men
were only a few feet apart from each other and moving
together at the same speed down the alley.
City of Topeka has adopted Standard Traffic Ordinance
(“STO”) § 68. Topeka Municipal Code §
10.15.010. Subsection (b) of this ordinance provides:
“Where a sidewalk is not available, any pedestrian
walking along and upon a highway shall walk only on a
shoulder, as far as practicable from the edge of the
roadway.” Subsection (c) of the ordinance provides:
“Where neither a sidewalk nor a shoulder is available,
any pedestrian walking along and upon a highway shall walk as
near as practicable to an outside edge of the roadway, and,
if on a two-way roadway, shall walk only on the left side of
the roadway.” The term “highway” includes
alleys. See STO Art. 1 (defining “alley” as:
“A street or highway intended to provide access to the
rear or side of lots or buildings in urban districts and not
intended for the purpose of through vehicular
traffic”). Officers Long and Schneider both testified
that they knew, based on their training, that Mr. Hartz was
committing a traffic violation because he was walking his
bicycle on the right side of the alley. But, the officers did
not stop Mr. Hartz for this reason.
as the officers approached the two men, they saw Mr. Benson
brandish a handgun and point it at the ground. Officer Long
testified that Mr. Benson spoke in an elevated voice and
hopped around. Officer Schneider drew his firearm, and both
officers ordered Mr. Benson to drop the gun. Mr. Benson
refused. Instead, he mounted his bicycle and rode off down
the alley. Officer Schneider followed Mr. Benson.
Long told Mr. Hartz to stop and get on the ground. He also
told him that he was not under arrest and not in trouble.
Officer Long testified that, when he stopped Mr. Hartz, he
was not sure what Mr. Hartz and Mr. Benson were doing or what
they were going to do, but he suspected they had engaged in
some sort of criminal activity. Indeed, Officer Long recited
under oath in a charging affidavit that he had detained Mr.
Hartz “[n]ot knowing what criminal activity the two
[men] had or were going to commit[.]” Exhibit B at 1.
stopping Mr. Hartz, Officer Long saw that he was carrying a
kitchen knife in his pocket. It was a butcher-style knife.
Officer Long estimated that its blade was about eight inches
long. Officer Long testified that a person lawfully may carry
a knife like the one Mr. Hartz had on his person in Topeka,
Long also testified that he was frightened. He was worried
that Mr. Hartz was armed with a gun since his apparent
companion-Mr. Benson-had brandished a firearm in front of the
officers. He also observed that Mr. Hartz appeared nervous
and hesitant to follow his commands. Officer Long told Mr.
Hartz to put his hands on the back of his head and not move.
He then placed handcuffs on Mr. Hartz. Officer Long testified
that he did this for safety reasons and because he wanted to
gain control of the situation.
Officer Long placed Mr. Hartz in handcuffs, Mr. Hartz told
him that he had something else on him. Officer Long
understood this statement to mean that Mr. Hartz was carrying
a weapon or some other contraband. Officer Long asked Mr.
Hartz what he had on him. Mr. Hartz responded that he had a
gun. And, he told Officer Long that he was not allowed to
have a gun because he is a convicted felon. Mr. Hartz advised
that the gun was in the rear waistband of his pants.
Long removed the gun from Mr. Hartz's waistband. It was a
.22 caliber revolver, and it was not loaded. Officer Long
then placed Mr. Hartz in custody for illegally possessing a
firearm. Officer Long never cited Mr. Hartz for a traffic
violation, although he testified that he believes that he
could have issued such a citation to him.
on these facts, the government has charged Mr. Hartz with
violating 18 U.S.C. § 922(g)(1), for unlawfully
possessing a .22 caliber revolver after being convicted of a
crime punishable by imprisonment for a term exceeding one
year. Doc. 1.