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United States v. Brock

United States District Court, D. Kansas

May 29, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KEVIN C. BROCK, JR., Defendant.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER, UNITED STATES DISTRICT JUDGE.

         Defendant Kevin C. Brock, Jr., charged with possession with the intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1), moves to suppress the evidence seized during the August 13, 2018 traffic stop of a vehicle he was driving. Doc. 17. Mr. Brock contests the validity of the traffic stop, which he contends violated his Fourth Amendment rights because- among other reasons-it was not justified at its inception. Doc. 18. Because the Court finds that law enforcement did not have reasonable suspicion to believe that Mr. Brock had violated any traffic regulation warranting the stop, the Court grants Mr. Brock's motion and suppresses the evidence.

         I.BACKGROUND[1]

         At approximately 7:30 or 7:45 a.m. on the morning of August 13, 2018, Special Agent Justin Olberding of the Drug Enforcement Agency (“DEA”) called Topeka Police Department (“TPD”) Officer Kimberly Hanika with information regarding an unknown individual allegedly in possession of illegal narcotics. Specifically, Agent Olberding informed Officer Hanika that the individual was driving a dark-colored Dodge Durango with a lawn mower strapped to the top and was in possession of a large amount of methamphetamine. Agent Olberding further reported that the individual was located in an area of Topeka known as “Little Russia.” Upon receiving this information, Officer Hanika reached out to Trooper Brian Clark of the Kansas Highway Patrol (“KHP”). Officer Hanika requested that Trooper Clark-who is a canine handler assigned to the police service unit-bring his dog, Police Service Dog Chase, to the Little Russia area to conduct a dog sniff.[2]

         Officer Hanika proceeded to drive to Little Russia and, at about 8:00 a.m., while sitting in her patrol car, observed a dark purple Durango with a lawn mower strapped to the top-matching the description of the vehicle provided by Agent Olberding-pull into a parking spot directly in front of Porubsky's Restaurant.[3] Officer Hanika watched as an individual-later identified as Mr. Brock-exited the Durango and stood near the vehicle on his phone. Although Mr. Brock had exited the vehicle, Officer Hanika could tell the vehicle was still on because she could hear the vehicle's exhaust running. Suspecting Mr. Brock of violating Topeka Municipal Code § 10.20.125(a), which renders it illegal for an individual to leave a vehicle running while “unattended, ” Officer Hanika exited her patrol car and called Mr. Brock over. At the time she called him over, Mr. Brock was still standing near his vehicle.[4]

         Making contact with Mr. Brock, Officer Hanika informed him that he was violating a city ordinance. Mr. Brock explained that he had exited his vehicle so that he could purchase a drink from the soda machine outside Porubsky's. Officer Hanika estimates the machine was located approximately five feet away from where Mr. Brock's vehicle was parked. Officer Hanika then asked Mr. Brock to provide his driver's license. Mr. Brock replied that his driver's license was “restricted” or “suspended” and instead provided Officer Hanika with a credit card. He also told Officer Hanika that the tags on the Durango were not registered to the vehicle.[5] Officer Hanika patted Mr. Brock down; no weapons or drugs were found on his person.

         Officer Hanika proceeded to call dispatch to run Mr. Brock's name and date of birth through the system. Dispatch confirmed that Mr. Brock's driver's license was suspended. While she was on the phone with dispatch, Officer Hanika sent a message to Trooper Clark to inform him that she had stopped a vehicle matching the description provided by Agent Olberding. Officer Hanika allowed Mr. Brock to sit in the vehicle (which had since been turned off at her instruction) while she was speaking with dispatch. Officer Hanika did not handcuff or restrain Mr. Brock. Officer Hanika also allowed Mr. Brock to get a soda from the vending machine. During her testimony, Officer Hanika described Mr. Brock as “chatty” during their encounter. She further testified that Mr. Brock did not say anything or behave in such a way as to indicate he was under the influence of any drugs. Mr. Brock was not combative and did not try to prevent Officer Hanika (or, once he arrived, Trooper Clark) from approaching the vehicle or getting near the vehicle. Indeed, Officer Hanika testified that the only reason she suspected Mr. Brock was in possession of drugs was the information provided by Agent Olberding. After speaking with dispatch, Officer Hanika told Mr. Brock that she was going to start writing his citations.

         Approximately 15 minutes after Officer Hanika initiated the traffic stop, Trooper Clark arrived on the scene with his dog. Trooper Clark made contact with Officer Hanika, who was standing with Mr. Brock. Officer Hanika asked Trooper Clark to run his dog around Mr. Brock's vehicle and then returned to her patrol car to begin writing Mr. Brock's citations. Trooper Clark approached the Durango to conduct the dog sniff. After the dog alerted to the presence of drugs, Trooper Clark searched the vehicle and discovered a crystal-like substance that he recognized as methamphetamine. Based on the evidence collected during the traffic stop and search of Mr. Brock's vehicle, a grand jury indicted Mr. Brock on December 12, 2018, for possession with the intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). Doc. 1. Mr. Brock subsequently moved to suppress. Doc. 17.[6]

         II.STANDARD

         The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV; see also Mapp v. Ohio, 367 U.S. 643, 655-56 (1961) (incorporating the Fourth Amendment's protections against the states through the Fourteenth Amendment). Evidence obtained in violation of these rights is subject to suppression under the “exclusionary rule.” Wong Sun v. United States, 371 U.S. 471, 484-85 (1963).

         III.ANALYSIS

         A. Constitutionality of the Traffic Stop

         Mr. Brock moves to suppress the evidence found in his vehicle during the August 13, 2018 traffic stop. Because a traffic stop is a seizure under the Fourth Amendment, it must be reasonable. United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000). The reasonableness of a traffic stop is analyzed under the framework set forth in Terry v. Ohio, 392 U.S. 1 (1968). Id. Under Terry, “a traffic stop is reasonable if it is (1) ‘justified at its inception' and (2) ‘reasonably related in scope to the circumstances which justified the interference in the first place.'” United States v. Karam, 496 F.3d 1157, 1161 (10th Cir. 2007) (internal citations omitted). Here, the Court's analysis focuses on the first part of the inquiry: the legal justification for the stop.

         With respect to this first part, a stop is justified at its inception if it is based on an observed traffic violation or the officer has reasonable suspicion that the motorist violated an applicable traffic regulation. United States v. Cunningham, 630 Fed.Appx. 873, 876 (10th Cir. 2015). The Supreme Court defines reasonable suspicion as “a particularized and objective basis for suspecting the particular person stopped of criminal activity” under a “totality of the circumstances.” United States v. Cortez, 449 U.S. 411, 417-18 (1981). The government bears the burden of proving reasonableness. United States v. Pettit, 785 F.3d 1374, 1379 (10th Cir. 2015). However, this is not an “onerous standard” and, indeed, requires “considerably less” than a preponderance of the evidence and “obviously less” than probable cause. Id. (quoting United States v. Kitchell, 653 F.3d 1206, 1219 (10th Cir. 2011); see also United States v. Esquivel-Rios, 725 F.3d 1231, 1236 (10th Cir. 2013)). “As long as an officer has ‘a particularized and objective basis for suspecting an individual may be involved in criminal activity, he may initiate an investigatory detention even if it is more likely than not that the individual is not involved in any illegality.'” Id. at 1379-80 (quoting United States v. Johnson, 364 F.3d 1185, 1194 (10th Cir. 2004)).

         Particularly pertinent for purposes of this motion is the “newly minted” principle that reasonable suspicion can rest on a mistake of law. Heien v. North Carolina, 135 S.Ct. 530, 536 (2014); see also Cunningham, 630 Fed.Appx. at 874; United States v. Perez-Madrigal, 2017 WL 2225221, at *3 (D. Kan. 2017). This mirrors the longstanding principle that an officer's reasonable mistake of fact does not render a seizure-particularly a traffic stop-unconstitutional. Cunningham, 630 Fed.Appx. at 874. Although traditionally drawing the line at mistakes of fact, holding that an officer's mistake of law, even if reasonable, cannot excuse an improper stop, the Tenth Circuit recently changed course in light of the Supreme Court's holding in Heien v. North Carolina. Id. The mistake-of-law doctrine is subject to the following ground rules: (1) the analysis is objective, and therefore the officer's subjective understanding of the law is irrelevant; (2) the doctrine is not as forgiving as the doctrine of qualified immunity; and (3) the officer's mistake of law may be reasonable if the law is ambiguous-i.e., if reasonable minds could differ on the interpretation-and has never been construed by the relevant courts. Perez-Madrigal, 2017 WL 2225221, at *3 (citing Cunningham, 630 Fed.Appx. at 876-77).

         In this case, Officer Hanika testified during the hearing on this motion that she stopped Mr. Brock because she suspected him of violating Topeka Municipal Code § 10.20.125(a) (“Unattended motor vehicle-Ignition-Key and brakes”) because he left his vehicle running while ...


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