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United States v. Richardson

United States District Court, D. Kansas

December 28, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK A. RICHARDSON (01), Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge.

         On April 7, 2017, Topeka Police Department Officers William Davenport and David Ibarra stopped Mark A. Richardson on suspicion that the van driven by Mr. Richardson was displaying an illegal license plate. After Officer Ibarra saw a firearm next to Mr. Richardson, the officers asked Mr. Richardson to step out of the van. Mr. Richardson did not comply immediately and the officers arrested him for interfering with a law enforcement officer. Officer Ibarra searched Mr. Richardson's person and found a small bag purportedly containing methamphetamine. Officer Davenport secured the firearm that Officer Ibarra had spotted; he also recovered a second firearm located next to the driver's seat.

         Mr. Richardson previously was convicted of four felonies: Criminal Possession of a Firearm, Criminal Damage to Property, Aggravated Assault with a Deadly Weapon, and Unlawful Discharge of a Firearm. Doc. 1 at 1. These convictions prohibited him from possessing a firearm. Based on evidence that officers had discovered pistols in Mr. Richardson's van, the grand jury indicted Mr. Richardson on one count of possession of a firearm in violation 18 U.S.C. §§ 922(g) and 924(a)(2). Id. at 2. On October 2, 2017, Mr. Richardson moved to suppress the methamphetamine and the firearms that the officers had seized during the April 7 traffic stop. Doc. 16. The court held an evidentiary hearing on October 24, 2017. On November 21, the court asked the parties to supplement their briefing to address whether the plain view doctrine applied to the issues joined by Mr. Richardson's motion. The court has considered the parties' briefings and evidence, and now is prepared to rule. For reasons explained in this Order, the court denies Mr. Richardson's Motion to Suppress (Doc. 16).

         I. Factual Background[1]

         On April 7, 2017, around 6:00 p.m., Topeka Police Department Officers Ibarra and Davenport stopped a van driven by defendant Mark A. Richardson. The officers initiated the stop because the license plate on the van did not match the registration for that plate. The plate was registered to a Chevrolet Trailblazer but Mr. Richardson was driving a GMC Safari. Officer Davenport activated the squad car lights and briefly activated his siren. Ex. 1 (Davenport #6 at:30; Ibarra #2 at:56).[2] Mr. Richardson did not stop immediately; instead, he turned onto another street. Davenport #6 at:22. Officer Davenport again activated his siren and this time Mr. Richardson stopped. Id. at:42 to:44. Officer Ibarra saw Mr. Richardson moving around in the van and he testified that he believed Mr. Richardson was attempting to remove items from his person.

         ORDER

         Officer Ibarra left his vehicle and walked to the passenger side of Mr. Richardson's van. Officer Davenport remained in the squad car and ordered Mr. Richardson to put his hands outside the van. Ibarra #2 at 1:17; Davenport #6 at:56. Mr. Richardson complied after Officer Davenport asked a second time. Davenport #6 at 1:06. Officer Davenport then approached Mr. Richardson's van on the driver's side. Id.

         Officer Davenport explained to Mr. Richardson that they had stopped him because the license plate was not registered to the van. Id. at 1:20. Mr. Richardson acknowledged as much, but explained that he had just changed cars and had not yet transferred the registration for the license plate. Id. at 1:22 to 1:35. Officer Davenport asked for the title to the van and Mr. Richardson's identification. Id. at 1:47, 1:52. Mr. Richardson provided Officer Davenport with the title but could not produce his driver's license. Id. at 1:52 to 2:07.

         Meanwhile, Officer Ibarra saw a black and silver handgun located next to Mr. Richardson inside the van. Ibarra #2 at 2:27. He alerted Officer Davenport about the gun. Id. at 2:36; Davenport #6 at 2:07. Officer Davenport ordered Mr. Richardson out of the vehicle. Davenport #6 at 2:10. Mr. Richardson started to unbuckle his seatbelt, id. at 2:13, but stopped when Officer Davenport returned the title papers inside the van. Id. at 2:16. Then, Mr. Richardson began jiggling the gear shifter and grabbed the steering wheel. Id. at 2:18 to 2:23. In response, Officer Davenport ordered Mr. Richardson to put the van in park. Id. at 2:21. Mr. Richardson failed to oblige, so Officer Davenport grabbed the shifter, put the van into park, and removed the keys from the van's ignition. Id. at 2:23 to 2:25. Officers Davenport and Ibarra ordered Mr. Richardson to get out of the van several times, but Mr. Richardson remained in the van, asking the officers what was going on. Id. at 2:26 to 2:45; Ibarra #2 at 2:58 to 3:17. Officer Davenport grabbed Mr. Richardson's wrist and manually assisted him out of the van. Davenport #6 at 2:45.

         The officers placed handcuffs on Mr. Richardson and took him to their patrol car. Id. at 2:46 to 3:20. Officer Ibarra explained to Mr. Richardson that he had seen a firearm in the van on the right side of the driver's seat. Ibarra #2 at 3:53. Then, Officer Ibarra searched Mr. Richardson's person while Officer Davenport secured the firearm. Meanwhile, Officer Davenport found a second firearm in the van located next to the first one he had spotted. He also found a hatchet in the van. Davenport #6 at 4:06 to 5:13. After Officer Davenport returned to the squad car with the firearms and the hatchet, Officer Ibarra found a small clear baggy on Mr. Richardson's person. It contained a white crystalline substance. Ibarra #2 at 6:30. It purportedly was methamphetamine.

         The officers ran an Interstate Identification Index (“Triple I”)[3] check on Mr. Richardson to determine if he had a felony conviction that would disqualify him from possessing a firearm. The Triple I initially reported that Mr. Richardson had no felonies. Davenport #6 at 11:02. But when back-up officers arrived and re-ran the Triple I, the officers discovered Mr. Richardson had prior felony convictions. Davenport #6 at 20:35.

         On May 3, 2017, a grand jury returned an indictment charging Mr. Richardson with one count of unlawfully possessing a firearm and ammunition after being convicted of a felony. Mr. Richardson's motion challenges the officer's search of his person and his vehicle.

         II. Analysis

         The Fourth Amendment[4] forbids unreasonable searches and seizures. Bailey v. United States, 568 U.S. 186, 192 (2013). “ʻ[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment- subject only to a few specifically established and well-delineated exceptions.'” Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). If the defendant challenges the reasonableness of a search or seizure, the government bears the burden to prove the reasonableness of that search or seizure by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 (1974); United States v. Zubia-Melendez, 263 F.3d 1155, 1160 (10th Cir. 2001). If the court determines the search or seizure violated the Constitution and the law enforcement activity was not objectively reasonable, the court, with a few exceptions, must suppress the fruits and instrumentalities of the search or seizure. United States v. Christy, 739 F.3d 534, 540 (10th Cir. 2014).

         Mr. Richardson argues that law enforcement officers unlawfully seized two guns and a small bag purportedly containing methamphetamine in violation of the Fourth Amendment. He asserts that the court should grant his Motion to Suppress for three reasons. First, the officers had no reasonable suspicion to conduct a Terry stop. Next, the officers performed an illegal search of Mr. Richardson's person. And last, the officers performed an illegal search of Mr. Richardson's van. The court addresses these arguments, in turn, below.

         A. Authority to Detain Mr. Richardson

         Mr. Richardson first argues that the officers had no basis to handcuff him because the officers merely were performing a Terry stop. The government responds that the officers handcuffed Mr. Richardson because they had probable cause to arrest him.

         Police officers may detain a person temporarily without probable cause if they develop reasonable articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30 (1968). A seizure must be “justified at its inception” and “reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 20. “ʻ[T]he use of firearms, handcuffs, and other forceful techniques generally exceed the scope of an investigative detention and enter the realm of an arrest.'” United States v. White, 584 F.3d 935, 952 (10th Cir. 2009) (quoting Cortez v. McCauley, 478 F.3d 1108, 1115-16 (10th Cir. 2007)).

         Here, Officers Davenport and Ibarra placed handcuffs on Mr. Richardson and thus their investigative detention unquestionably entered the arrest realm. But the officers lawfully could arrest Mr. Richardson if they had probable cause to believe that he committed a crime. Id. An officer has probable cause to arrest someone when a reasonable officer believes a person has committed or is committing an offense. Mocek v. City of Albuquerque, 813 F.3d 912, 925 (10th Cir. 2015) (quoting York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)). Whether an officer subjectively believed “probable cause existed for detaining a criminal suspect is not dispositive.” Id. (citing United States v. Davis, 197 F.3d 1048, 1051 (10th Cir. 1999)).

         The government argues the officers had probable cause to arrest Mr. Richardson on four distinct offenses: (1) illegal display of a license plate, in violation of Kan. Stat. Ann. § 8-142; (2) failure to possess a driver's license when driving, a violation of Kan. Stat. Ann. § 8-244; (3) resisting or opposing an officer while the officer is performing his official duty, Kan. Stat. Ann. § 21-5904; and (4) failure to comply with police officer's orders, in violation of Topeka Mun. Code § 9.35.010.[5] The court addresses most of these alleged offenses, in the following sections, 1-3.

         1. Illegal Display of a License Plate

         Operating a vehicle without an accurate license plate is a misdemeanor offense under Kansas law. Kan. Stat. Ann. §§ 8-142, -149. Mr. Richardson admitted to Officer Davenport that the license plate on his van was registered to another vehicle. But Kansas law provides an exception to § 8-142 when the owner transfers ownership of a vehicle. When such a transfer occurs, the original owner can keep the license plate and register another vehicle under that license plate number. Id. ยง 8-135(a). The transferring owner legally can continue using ...


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