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United States v. Cowan

United States District Court, D. Kansas

November 12, 2019




         Defendant has been charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). This matter comes before the Court on defendant's motion to suppress evidence obtained upon his arrest (Doc. # 22). On October 11, 2019, the Court conducted a hearing on the motion, at which it received evidence and heard additional argument. The parties also submitted post-hearing briefs, which the Court has considered. For the reasons set forth below, the Court grants the motion, and all such evidence shall be suppressed. In short, this is a case in which an officer acted on a hunch that proved incorrect, but which led to the discovery of incriminating evidence of another crime; but the officer did not have a legal basis to act on his hunch as he did.[1]

         I. Facts

         Officer Jason Oyler of the Topeka Police Department was the only witness at the hearing, and the timeline of relevant events comes from his testimony and the record of the information that was relayed to Officer Oyler by dispatch during the events. These facts are essentially undisputed.

         On February 3, 2019, at approximately 2:51 p.m., Officer Oyler was told that a robbery had occurred five minutes before at 904 SW Lincoln in Topeka, Kansas. Over the next 13 minutes, Officer Oyler received the following information about the robbery and its perpetrator. The perpetrator had used a gun and took a cell phone and wallet from the victim. The perpetrator was a black male, with a medium build, five-feet-ten or just under six-feet tall. He sounded as if his age was in the late teens or early twenties. He wore a black hoodie (hooded sweatshirt) and possibly wore black pants. He was last seen leaving the area of the robbery westbound on foot, toward the intersection of Lincoln and 9th Street.

         At 3:04 p.m., approximately 18 minutes after the robbery, Officer Oyler saw defendant riding a bicycle. Officer Oyler was in uniform and driving a marked police vehicle, and he was in the process of setting up a perimeter several blocks wide around the scene of the robbery. Officer Oyler was driving northbound on Fillmore, north of 8th Street and approaching 7th Street, and he saw defendant ride eastbound on 9th Street and turn south onto Fillmore's eastern sidewalk. That intersection of Fillmore and 7th, where Officer Oyler first saw defendant, was two blocks north and three blocks east of the perpetrator's last reported location; Officer Oyler testified that it would be about a nine-minute walk between the two locations. After the turn onto Fillmore, defendant passed Officer Oyler's vehicle, and Officer Oyler was able to observe defendant. Office Oyler observed that defendant was a black male, who appeared to be between five-feet-ten and six feet tall; and defendant wore a dark gray hoodie, dark gray sweatpants, and gloves. No. one else in the area was close to a match for the perpetrator as described, and no other officer had reported contact with a suspect, and Officer Oyler decided based on his appearance that defendant was a possible suspect for the robbery. Officer Oyler testified that although he had been given a description of a person wearing a black hoodie and possibly black pants, defendant's dark gray hoodie and pants were close enough, as it would not be unusual in his experience for a victim to describe dark gray clothing as black. Neither the clothing nor any pictures thereof were introduced into evidence, however, and thus the Court was unable to judge the degree to which the color of defendant's clothes could have been mistaken for black.

         After passing defendant and deciding that he was a suspect, Officer Oyler executed a u-turn and began to follow defendant. The officer turned on his emergency lights and chirped his siren to indicate to defendant that he should stop. Defendant looked back, which afforded Officer Oyler a look at defendant's face. Defendant then pedaled away faster, and Officer Oyler continued his pursuit in his vehicle. Defendant rode westbound down an alley between 7th and 8th Streets, then southbound down another alley, then westbound on 8th Street on the sidewalk. When defendant attempted to turn north onto Clay, he lost control, and the bicycle slid out from under him. Officer Oyler was still following within 50 feet behind defendant, with his lights still activated and still occasionally chirping his siren.

         After defendant crashed on the bicycle, Officer Oyler got out of his vehicle and ran toward defendant, making eye contact. Defendant ran west across Clay and up an embankment to the sidewalk. Defendant put both hands in front of him toward his waistband, and Officer Oyler believed that defendant was going for a firearm. After a brief moment, however, defendant start to fall forward, and a cell phone fell out from in front of defendant. Officer Oyler ran up and dropped his weight on defendant; he was pinning defendant's arms and giving commands when other officers arrived and helped Officer Oyler place defendant in handcuffs (within seconds of defendant's having been subdued). Once defendant was in cuffs and was being stood up, defendant informed officers (unsolicited) that he had a pistol, which officers then found on his person. Officers also found a case with a pipe and a substance that field-tested positive for methamphetamine. Defendant was in custody within approximately two minutes of the time when Officer Oyler first observed him and began his pursuit.

         Officer Oyler testified that he had the opportunity to look at defendant's face multiple times during the encounter before he subdued defendant, and he did not testify that defendant's hood was up or that he was unable to observe defendant's face for some other reason. He further testified that he simply did not consider defendant's age, despite the description of the perpetrator as a person in his late teens or early twenties, in deciding that defendant matched the description given and was a suspect for the robbery; rather, he relied solely on defendant's height, weight, and clothing. Officer Oyler conceded that defendant looked the same at the hearing as he did on the day of the arrest. He further conceded that defendant, who was 47 years old at the time of the arrest, is balding and does not look like a man in his early twenties.

         The Topeka Police Department's written policy requires an officer to activate his body camera during all law enforcement-related encounters, including traffic stops, arrests, pursuits, and adversarial encounters with the public, and including while operating a vehicle with lights and siren activated. Officer Oyler conceded that his pursuit and arrest of defendant fell within the scope of the policy's requirement for activation of his body cam. The only exception in the policy is for times in which activation would be unsafe, impossible, or impractical. Despite this policy, Officer Oyler conceded that he failed to activate his body cam at any time during his encounter with defendant before the arrest. He testified that as he was driving with one hand in pursuit while activating the lights and siren with the other, he had no time to activate the camera by tapping on the button on his uniform, and that he was focused instead on defendant; and that he exited his vehicle as fast as he could once defendant crashed the bicycle. Officer Oyler also did not document his failure to activate the body cam in the manner required by the policy.

         II. Analysis

         Defendant seeks to suppress evidence obtained as a result of a seizure in violation of the Fourth Amendment. See Wong Sun v. United States, 371 U.S. 471, 485 (1963) (exclusionary rule). The Government does not dispute that if defendant was unlawfully seized, the evidence obtained upon his arrest should be excluded. Accordingly, the Court considers only whether defendant was seized in violation of the Fourth Amendment.

         In his initial motion, defendant argued that Officer Oyler lacked the requisite reasonable suspicion to conduct an investigative (Terry) stop when he was pursuing defendant. As defendant's counsel conceded at the hearing, however, an officer seizes a person for purposes of the Fourth Amendment only if he restrains the movement of the person by physical force or if the person submits to the assertion of the officer's authority. See United States v. Martin, 613 F.3d 1295, 1300 (10th Cir. 2010) (citing California v. Hodari D., 499 U.S. 621, 626 (1991)). In this case, defendant did not stop for the officer, and Officer Oyler did not physically restrain him until defendant fell after running up the embankment. Thus, no seizure took place until that restraint.

         When Officer Oyler did restrain him, defendant was handcuffed within moments. The Government does not dispute that by that time defendant effectively had been arrested. See Cortez v. McCauley, 478 F.3d 1108, 1115-16 (10th Cir. 2007) (use of handcuffs and other forceful techniques exceeds the scope of an investigative detention and enters the realm of an arrest). An arrest must be supported by probable cause, which is a more demanding standard than the reasonable suspicion required to support an ...

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