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United States v. Silcott

United States District Court, D. Kansas

March 27, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JACOB E. SILCOTT, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE.

         This matter comes before the court on Defendant's motion to suppress evidence. (Doc. 17.) The motion is fully briefed. (Docs. 20, 21, 22.) The court held an evidentiary hearing on March 18, 2019, and took the motion under advisement. The court is now prepared to rule. For the reasons set forth herein, the motion is DENIED.

         I. Facts

         The court finds the following facts from the evidence presented at the hearing. Sgt. Maurice Mitchell of the Wichita Police Department (WPD) was on duty in the early morning hours of May 27, 2018. Mitchell was on patrol in a marked police car near the intersection of 21st and Ridge Road at about 3:30 a.m. Minutes before, police received notice of an alarm going off at a business named Crescent Oil near 21st and West streets, a couple of miles east of Mitchell's location. Mitchell heard a radio dispatch stating that officers at the business reported it was a “good alarm, ” meaning it was valid. The officers reported a possible entry into the business and that there were yellow tow straps in the parking lot. Mitchell was familiar with some recent burglaries to small businesses in which burglars had used yellow tow straps to forcibly extract automated teller machines (ATMs) from the businesses. Mitchell was aware that in at least one of the prior burglaries, a pickup truck was used to haul away an ATM.

         Within a few minutes of receiving this information, Mitchell was southbound on Ridge Road, stopped at the traffic light at 21st street, when he saw a pickup truck travel through the intersection heading west on 21st street. As it passed by, he noticed objects partially sticking up above the side wall and tailgate of the pickup bed. He could not tell what the parts were, but he suspected they might be parts from an ATM. Mitchell radioed that he saw a pickup with some debris in it and was going to follow it. He requested that an officer assist him. Mitchell turned west on 21st street and followed the pickup at a distance, staying back because he was waiting for another officer to arrive and because he could not blend into traffic, as the pickup was the only other car on the street at that late hour. The pickup turned left (south) on Tyler Road (about one mile west of Ridge Road), and Mitchell followed it southbound on Tyler. Sgt. Cory of the WPD reported via radio that he was approaching Mitchell from behind. Mitchell advised Cory that he was going to stop the pickup because he suspected it was involved in the burglary. Mitchell activated his overheard emergency lights near the 800 block of north Tyler. The truck pulled over to the curb and stopped. There was nothing unusual about the way the pickup stopped. Mitchell testified he suspected the truck of involvement in the apparent burglary because of the debris sticking out of the pickup bed, which he thought might be parts of an ATM, although at that point he could not tell what the parts were.

         Mitchell stayed in his car for a brief time after the pickup stopped, as he entered the truck's license plate number into his computer and spoke with the police dispatcher. Sgt. Cory pulled in behind Mitchell with his emergency lights flashing. Approximately one minute after the initial stop, Mitchell opened his door and started to put his foot on the ground, at which time the pickup truck suddenly took off at a high rate of speed. Mitchell closed his door and pursued the truck. At some point the truck left the roadway, drove through a residential yard, over some railroad ties, crossed the street, went down in a ditch and crashed into a wrought iron fence. Mitchell got out of his car and was yelling verbal commands as he approached the truck. The truck was centered over a ditch and Mitchell could see and hear the driver, a white male, attempting to restart the truck, which had stalled out. Mitchell approached and opened the driver's door, at which point the driver immediately jumped out. Mitchell fell in the ditch as the driver - later identified as Defendant - went running past him. As Mitchell got up, he noticed a handgun on the floor of the truck cab by the driver's open door.

         Officers photographed and seized the handgun by the driver's door. A subsequent search of the truck disclosed a sawed-off shotgun on the back seat. The objects in the bed of the pickup were found to be auto parts, including a large piece of plastic molding and what appears to be the folded seat of a car with an attached headrest. Defendant was apprehended some time after the above-described incident, although the evidence did not show when or how that occurred.

         II. Discussion

         Defendant contends the stop of the pickup truck constituted a seizure under the Fourth Amendment and that it was unlawful because it was not supported by reasonable suspicion. He further contends the firearms found in the truck were the product of the unlawful seizure, such that they must be suppressed as “fruit of the poisonous tree.”[1] Doc. 17. In response, the government argues Defendant was not seized within the meaning of the Fourth Amendment because he fled without submitting to the officer's show of authority. It further contends Defendant abandoned the vehicle after it crashed, such that he had no reasonable expectation of privacy in its contents when the officers searched it. Doc. 21. At the conclusion of the evidentiary hearing, the government additionally asserted the evidence showed that the officer had reasonable suspicion to stop the pickup truck.

         A. Fourth Amendment seizures.

         The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. The defendant bears the burden of proving whether and when the Fourth Amendment was implicated. If the defendant meets his burden of showing a warrantless seizure, the burden then shifts to the government to show that the seizure was reasonable. See United States v. Shrum, 908 F.3d 1219, 1229 (10th Cir. 2018).

         The existence of a seizure is a question of law. In determining whether a seizure occurred, the court first applies an objective test to consider whether a reasonable person would have felt free to leave or terminate the encounter with the officer. United States v. Gaines, F.3d, 2019 WL 1120405, *2 (10th Cir. Mar. 12, 2019). Under the so-called Mendenhall test, a seizure can occur only if a reasonable person would not have felt free to leave or terminate the encounter. California v. Hodari D., 499 U.S. 621, 627-28 (1991) (citing United States v. Mendenhall, 446 U.S. 544, 554 (1980)). When a defendant claims that a seizure resulted from an officer's show of authority, the Mendenhall test asks objectively whether the officer's words and actions would have conveyed to a reasonable person that he was being ordered to restrict his movement. Id. But that only states a necessary, rather than a sufficient, condition for a seizure effected through a show of authority. Id. at 628. A person is not seized within the meaning of the Fourth Amendment until he yields to the officer's show of authority or the officer applies physical force. See Id. (youth who fled an approaching officer was not seized until officer tackled him.); Gaines, 2019 WL 1120405, *2 (“Even if a reasonable person would not have felt free to leave, a seizure would occur only if the suspect yielded to a police officer's show of authority.”)

         Thus, “[w]hen an officer does not apply physical force to restrain a subject, a Fourth Amendment seizure occurs only if (a) the officer shows his authority; and (b) the citizen ‘submit[s] to the assertion of authority.'” United States v. Salazar, 609 F.3d 1059, 1064 (10th Cir. 2010) (citing Hodari D., 499 U.S. at 626)). The use of police car emergency flashing lights to make a traffic stop, as was done here, can constitute a show of authority. See Brendlin v. California, 551 U.S. 249 (2007) (all occupants of a car were seized by officer's “successful display of authority” in using flashing lights to make traffic stop). See also Gaines, 2019 WL 1120405, at *2, n.4 (citing 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 9.4(a), at 598-99 (5th ed. 2012) (stating that the “use of flashing lights as a show of authority ... will likely convert the event into a Fourth Amendment seizure”)). The court finds that a reasonable person in Defendant's position would not have felt free to leave or to disregard the officer's flashing lights. The officer thus made a show of authority. The remaining disputed question is whether Defendant submitted to the show of authority such that a seizure occurred.

         The Tenth Circuit has addressed the “submission to authority” component on numerous occasions, including most recently in Gaines, supra. In Gaines, a man was sitting in his vehicle when two marked police cars stopped directly behind him with their roof lights flashing. One uniformed officer gestured for the man to get out. The man got out and responded to the officers' questions. When the officers asked for identification, the man opened the trunk of his car to retrieve it, but he then turned and fled on foot. The Tenth Circuit concluded that by the time the man fled he “had already yielded to the show of authority.” Id., 2019 WL 1120405, at *4. The Gaines majority cited a case from another circuit holding that a man had submitted to authority by responding to an officer's questions, and also cited United States v. Morgan,936 F.2d 1561 (10th Cir. 1991). In Morgan, a police car with its lights flashing followed a vehicle for several blocks until the car pulled into a driveway and stopped. A man then got out of the passenger side of the car. A uniformed officer approached and told the man to “hold ...


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