United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER, UNITED STATES DISTRICT JUDGE.
Torrey Vashon Banks moves to suppress the evidence found in a
vehicle he was driving. Doc. 23. The Court held an
evidentiary hearing on January 11, 2019, and received
evidence, including the testimony of the arresting officer
and the video recording from the officer's dash camera.
Because Mr. Banks fails to establish a Fourth Amendment
violation, the Court denies his motion.
April 6, 2018, Mr. Banks was driving a gold Cadillac
westbound on Interstate 70 through Wabaunsee County, Kansas.
Kansas Highway Patrol Trooper Adam Simone, parked in the
median, observed the Cadillac traveling in the left lane
alongside a pickup truck towing a trailer in the right lane.
Trooper Simone saw the Cadillac move into the right lane
behind the truck. The trooper subsequently initiated a
traffic stop on the Cadillac for following the truck too
Banks was driving and Tyrone Sanders, the owner of the
Cadillac, was in the passenger seat. Trooper Simone requested
their driver's licenses, insurance, and registration.
When he ran a warrants and criminal history check, he learned
that the men had felony criminal histories ranging from
homicide to burglary to drug charges. He also learned that
Mr. Banks had a prior conviction for felon in possession of a
firearm. Trooper Simone issued a warning ticket for following
too closely in violation of K.S.A. § 8-1532(a) and asked
for consent to search the car. Mr. Banks refused the request.
Trooper Simone then told them he was going to hold them for a
canine unit to arrive. Just over one minute later, Kansas
Highway Patrol Trooper Olson arrived with the drug-detection
dog. The dog alerted. When the troopers searched the trunk,
they found a black plastic trash bag containing a loaded
semi-automatic handgun, clothing, and paystubs with Mr.
Banks's name on them. Mr. Banks acknowledged the clothes
were his but denied knowledge of the handgun. Mr. Banks is
charged with being a felon in possession of a firearm. He
moves to suppress the handgun, claiming it was obtained in
violation of his Fourth Amendment rights.
Fourth Amendment protects people from unreasonable searches
and seizures of their persons and their property. U.S. Const.
amend. IV. Evidence obtained in violation of these rights is
subject to suppression under the exclusionary rule. Wong
Sun v. United States, 371 U.S. 471, 484 (1963).
Banks does not make a direct challenge to the search of Mr.
Sanders's car and has not produced any evidence that he
owns the car or has a property or possessory interest in it
or in the firearm found in the trunk. See Rakas v.
Illinois, 439 U.S. 128, 134, 149 (1978) (holding that a
“passenger qua passenger” is not
entitled to suppression of the evidence based on a claim that
the search violated the owner's Fourth Amendment rights);
United States v. Jefferson, 925 F.2d 1242, 1249
(10th Cir. 1991) (applying Rakas to both the
passenger and the non-owner driver). Because Mr. Banks does
not make this challenge and because there is no evidence that
he had a possessory or property interest in the area searched
or an interest in the property seized, the Court finds that
Mr. Banks lacks direct standing to challenge the vehicle
Mr. Banks is not directly challenging the vehicle search, he
is asserting a Fourth Amendment challenge based on the
seizure of his person. A passenger or non-owner driver of a
car may bring a derivative challenge to “‘the
lawfulness of his own detention and seek to suppress the
evidence found as the fruit of [his] illegal
detention.'” United States v. DeLuca, 269
F.3d 1128, 1132 (10th Cir. 2001) (quoting United States
v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000)).
To prevail on this “derivative evidence” theory,
a defendant must show both (1) “that the detention did
violate his Fourth Amendment rights, ” and (2) “a
factual nexus between the illegality and the challenged
evidence.” Nava-Ramirez, 210 F.3d at 1131
(citations omitted); DeLuca, 269 F.3d at 1132.
Banks attempts to satisfy the DeLuca/Nava-Ramirez
test by claiming that he was unlawfully seized during the
traffic stop, both at its inception and after Trooper Simone
returned his documents, and that a factual nexus exists
between each illegal detention and the challenged evidence.
The Court addresses each argument in turn.