United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER, UNITED STATES DISTRICT JUDGE.
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.
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.
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. 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
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. Officer Hanika patted Mr. Brock down;
no weapons or drugs were found on his person.
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.
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.
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).
Constitutionality of the Traffic Stop
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.
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)).
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).
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 ...