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United States v. Hutcherson

United States District Court, D. Kansas

January 17, 2018

United States of America, Plaintiff,
v.
Alan Frank Hutcherson, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         This 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).

         I. Factual Background

         The 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.

         Vortherms 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 computer equipment.

         When 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.

         Vortherms 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 Hernandez.

         Vortherms 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.

         According 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.

         Vortherms 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 expedited basis.

         After 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.

         When 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.

         He then 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.

         When 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 2015.

         Vortherms 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.

         Vortherms 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.[1]

         Vortherms 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.

         At some 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.

         Deputy 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.

         Gifford 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.

         Vortherms 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.

         The officers then conducted an inventory search of the vehicle prior to its impoundment.

         Later 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 no response.

         II. Discussion

         In his 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.

         Kansas 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.”[2]The statute places the burden of providing proof of insurance on the driver, and failing to provide such proof is a class B misdemeanor.[3] If the driver cannot produce proof of insurance, the officer “shall issue” at least a citation, [4] 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.

         Vortherms 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.

         The 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 ...


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