United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Alan Frank Hutcherson's
motion to suppress. Hutcherson argues that the Court must
suppress all evidence obtained following the traffic stop of
his vehicle, as well as the substance of statements he made
while in custody. The Government maintains that the search
was constitutional under the circumstances of the case. The
Court concludes that the stop and search of Defendant's
vehicle on February 9, 2017, were constitutionally
permissible, and finds that his statement made later that day
was voluntary. Accordingly, the Court denies Hutcherson's
motion to suppress. (Doc. 26).
evidence at the hearing establishes that on the day of the
stop Emporia Police Department Narcotics Detective Dominick
Vortherms was driving south on Industrial Drive. Accompanied
by two Homeland Security Special Agents, John Connors and
Oscar Rodriguez, the officers were trying to locate a
witness, a Mr. Hernandez, in southwest Emporia as part of an
ongoing heroin investigation.
was driving a white Crown Victoria with no markings on the
sides and no overhead emergency lights. The vehicle does have
a badge with the car number on the front, and has a lightbar
on the interior. The vehicle has a dispatch radio, but no
Vortherms stopped at the intersection of Industrial Drive and
West 6th Avenue, he saw a purple Caprice facing him across
the intersection. The driver, who eventually proved to be
Defendant, waved at Vortherms, who returned the wave. As the
driver turned right onto 6th Avenue, Vortherms saw the seat
belt buckle hanging on the door post next to the driver.
had seen that the Caprice had come from one of the streets
where Hernandez lived. Vortherms had not seen Hernandez
personally, and thought the driver of the Caprice might be
decided to stop the driver of the Caprice for failure to use
a seat belt. He turned left behind Defendant and activated
his emergency lights and siren.
to Vortherms, the Caprice did not stop immediately, but
continued eastbound on 6th Avenue, which does not have a
shoulder. Vortherms then activated a manual horn inside his
vehicle. As he followed the Caprice, Vortherms saw Defendant
ducking down towards the front passenger floorboard, as well
as reaching back into the middle of the rear passenger area.
estimates that the Defendant drove 200 to 250 feet, for
“around a minute.” Vortherms notified dispatch of
the stop and asked for other available units to help on an
the Caprice stopped, Vortherms and the other officers,
concerned by the driver's gestures, approached with
weapons drawn and shouted for the Defendant to show them his
hands. The Defendant continued to duck out of sight.
the officers were a few feet away from the Caprice,
approaching the vehicle from the right rear, the Defendant
placed his hands in the air, and stepped out. The Defendant
has his keys and several credit cards in his hand. Vortherms
patted the Defendant down and found nothing.
asked why the Defendant hadn't pulled over immediately,
and Hutcherson said he was looking for his registration.
Vortherms asked for and received Hutcherson's drivers
license. Vortherms told Hutcherson he was not wearing his
seat belt, and asked if he was on probation, parole, or
diversion, and Hutcherson responded he was on parole.
Vortherms asked for insurance information, Hutcherson
indicated the Caprice was not his car. Vortherms asked if
Hutcherson could retrieve insurance information from the car,
and followed him to the passenger side. Hutcherson opened the
glove box and produced an insurance card which had expired in
decided to place Hutcherson under arrest. He testified that,
although he has discretion to simply issue a citation, his
normal practice is to arrest a non-owner driver who cannot
provide proof of insurance.
asked if the officers could search the car. Hutcherson
refused, saying the car did not belong to him. Vortherms
testified when he asked who the car belonged to, Hutcherson
responded that it was his girlfriend, Tenisha Grey. Vortherms
had previously known a Tenisha Grey who had some past
involvement in narcotics in Lyon County, Kansas. Vortherms
also testified that Hutcherson told him the car belonged to
his grandfather, but this is uncertain. Vortherms later
testified that Hutcherson might have told him the car
belonged to his girlfriend's grandfather.
then told Hutcherson that he was under arrest for the
seatbelt violation, and was placed in another police vehicle
which had arrived at the scene. Vortherms called for a canine
unit to sweep the Caprice.
point shortly after his arrival, another officer at the scene
told Vortherms that dispatch reported the Caprice had been
registered approximately two weeks earlier, and the
registration showed that insurance was then in effect.
Vortherms decided to impound the Caprice and called dispatch
to arrange for a tow.
Jason Gifford, a certified canine officer with his dog Diego,
was in the vicinity when he heard Vortherms' call for
assistance. Gifford arrived approximately eight minutes after
the call. After he walked around the vehicle to ensure there
were no hazards to his dog, he led Diego by the leash around
the vehicle. On two occasions, when passing by the car's
door, Diego deviated the search pattern to try and enter the
car. Gifford testified that this was an alert that there was
an odor of narcotics inside the vehicle. When Gifford checked
the interior of the car to see if there were hazards to the
dog if it entered, Gifford himself smelled an odor of
marijuana coming from the car. From the dog's behavior
and his own senses, Gifford testified he knew there were
drugs in the car or had recently been in it.
reported his findings, and the officers then began searching
the vehicle. On the front passenger floorboard, they found a
Wal-Mart bag with 9 mm bullets, marijuana, and a digital
scale. They found another digital scale with white powder in
the glove box. And in the center console of the rear
passenger seat they found a Taurus pistol.
read Hutcherson his Miranda rights. Hutcherson
invoked his rights and indicated he did not want to speak. A
deputy drove Hutcherson to the Lyon County jail.
officers then conducted an inventory search of the vehicle
prior to its impoundment.
the same day, Hutcherson indicated to staff at the jail that
he wanted to talk about his case. Jail officers notified
Vortherms, who again spoke with Hutcherson and repeated the
Miranda warnings. Hutcherson told Vortherms he wanted to
cooperate, and began speaking about his case, other local
drug dealers, and about the heroin-trafficking investigation.
When Vortherms asked about the Taurus pistol, Hutcherson made
motion to suppress, the Defendant argues that evidence
obtained from the stop was illegal, noting that although he
was stopped for a seatbelt violation, Vortherms did not ask
any questions about seat belt usage. He further argues that
any probable cause the police had to arrest him for failure
to have proof of insurance was invalid once the officers
learned that proof of insurance had been presented at the
time the car was registered. Defendant stresses that under
K.S.A. 40-3104(e), subsequent proof of insurance is an
effective defense to any prosecution for failure to present
proof of insurance.
law provides that “[a]ny person operating a motor
vehicle upon a highway ... shall display, upon demand,
evidence of financial security to a law enforcement
officer.”The statute places the burden of providing
proof of insurance on the driver, and failing to provide such
proof is a class B misdemeanor. If the driver cannot produce
proof of insurance, the officer “shall issue” at
least a citation,  but the statute also contemplates the
arrest of a driver. Subsection (e) relied on by Defendant,
precludes a criminal conviction if the driver can produce
“within 10 days of the date of arrest or of issuance of
the citation” proof of insurance “which was valid
at the time of arrest or of issuance or of issuances of the
citation.” Ultimately, however, the Defendant's
motion does not turn on whether Det.
could lawfully arrest him for failing to provide proof of
insurance. The evidence establishes that the officers at the
scene had a reasonable suspicion of criminal activity, which
permitted the relatively brief expansion of the traffic stop
to permit the deployment of the canine unit. This reasonable
suspicion, which was based on Defendant's conduct at the
scene, was not altered by the radio report indicating that
the car's registration included insurance information.
Once the dog positively indicated to the presence of
narcotics in the car, there was probable cause to arrest
Hutcherson for narcotics, and for impoundment and inventory
of the vehicle.
Defendant acknowledges the Supreme Court's observation in
Peters v. New York, 392 U.S. 40 (1968) that
“deliberately furtive actions and flight at the
approach of strangers or law officers are strong indicia of
mens rea.” However, he also cites United
States v. Humphrey, 409 F.2d 1055 (10th Cir. 1969) for
the proposition that ...