United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge.
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
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.
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). 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.
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.
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.
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
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.
officers ran an Interstate Identification Index
(“Triple I”) 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.
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.
Fourth Amendment 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).
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.
Authority to Detain Mr. Richardson
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.
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
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)).
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. The court addresses most of these alleged
offenses, in the following sections, 1-3.
Illegal Display of a License Plate
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. § 8-135(a). The transferring owner legally
can continue using ...