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United States v. Banks

United States District Court, D. Kansas

January 25, 2019




         Defendant 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.

         I. BACKGROUND

         On 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 closely.

         Mr. 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.

         II. STANDARD

         The 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).

         III. ANALYSIS

         A. Direct Challenge

         Mr. 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 search.

         B. Derivative Challenge

         Although 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.

         Mr. 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.

         1. ...

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