United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE
who is charged with possession of a firearm by a prohibited
person, moves to suppress a firearm and other evidence found
during the traffic stop of the vehicle he was driving and
statements he made during the stop. Doc. 29. He argues law
enforcement illegally searched his vehicle, making the
firearm and statements poisonous fruit of a Fourth Amendment
violation. Alternatively, he argues that his statements were
the product of un-Mirandized, custodial
interrogation in violation of the Fifth Amendment.
Id. The Court finds that law enforcement did not
violate Defendant's Fourth Amendment rights. But the
Court agrees with Defendant that la w enforcement violated
his Fifth Amendment rights by asking at the scene about the
vehicle's contents. The Court therefore suppresses
Defendant's responses to these questions and denies the
rest of the motion.
September 13, 2017, at approximately 2:30 a.m., Sergeant
Brett Butell and Deputy Dalton Atzenweiler of the Shawnee
County Sheriff's Office were on patrol when they saw a
red Toyota Celica missing its rear bumper coming from the
direction of a strip club. They followed it and observed it
driving twenty miles per hour over the posted speed limit. It
also braked throughout curves in a manner consistent with
impaired driving. The officers activated their emergency
lights, and Defendant pulled over to the side of NE Highway
officers approached the vehicle and spoke with Defendant.
Defendant said he was going to pick up his boss in Perry
before heading to Colorado for a construction job. Sgt.
Butell asked if he owned the vehicle. Defendant said yes and
explained that he had just bought the vehicle and was waiting
for the title to arrive. Sgt. Butell then asked for
Defendant's license, registration, and insurance.
Defendant said he did not have identification. Defendant had
slurred speech, glazed eyes, and was sweaty. He was also very
fidgety and erratic while searching for the vehicle
information, which he never produced. While searching, he
admitted the vehicle was not his. When Sgt. Butell noted the
discrepancy, Defendant replied that he had just bought the
vehicle. But he did not know the name of the seller.
Defendant eventually produced a Kansas corrections inmate
identification, identifying him as John Kissell. Defendant
admitted that he was on parole and stated that he was going
to meet with his parole officer to get a travel pass before
leaving the state. He gave the first name of his parole
officer and the county where he was on parole. During the
conversation, Sgt. Butell saw only a small backpack and purse
in the vehicle.
Butell returned to his cruiser and ran Defendant's name.
He learned that Defendant was on state parole for aggravated
battery, that his parole officer's name and county did
not match the name or county that Defendant had just given,
that Defendant's license was suspended with four previous
convictions of driving while suspended, and that the vehicle
Defendant was driving was registered to Luis Enrique Acosta.
The vehicle was not reported stolen. Sgt. Butell returned to
the vehicle and verified that the vehicle identification
number (“VIN”) matched the license plate. While
he verified the VIN, Defendant was speaking on the phone and
stated that he needed to contact the seller to bring the
registration. Sgt. Butell asked Defendant to hand him his
keys and then placed them on top of the vehicle. A
“one-hitter” pipe, commonly used to smoke
marijuana, was attached to the keys and appeared to have been
used. Sgt. Butell then consulted with Lieutenant Sam Leone,
who had arrived at the scene, and told him that he did not
smell alcohol but “I think he probably has some drugs
on him. That's just a feeling.” He did not mention
Butell decided to arrest Defendant for driving while
suspended. He had Defendant step out of the vehicle and asked
if he had any “guns, knives, or bazookas” on his
person. Defendant said no. Sgt. Butell patted him down,
removed two pocket knives, and handcuffed him. He did not
read Defendant his Miranda rights. Sgt. Butell left
Defendant with Dep. Atzenweiler and Lt. Leone at the rear of
the vehicle, opened the driver's side door, and asked:
“Is there anything in the vehicle I should know
about?” Defendant replied that his friend's pistol,
from whom he had picked up the vehicle that night, was by the
front seat. Sgt. Butell responded, “His pistol, huh. I
thought you said you just bought it from him?”
Defendant responded that he bought the vehicle that night,
which he admitted did not make much sense, to which Sgt.
Butell agreed. Dep. Atzenweiler separately asked Defendant
about the vehicle's contents, and Defendant replied that
there was marijuana, a weapon, and something in the backpack.
Butell found the firearm between the driver's seat and
center console and a large sum of money in a clip on the
floorboard. He searched the backpack and found marijuana,
scales, and other drug paraphernalia. He did not find any
vehicle papers. He then had the vehicle towed, without
on the evidence collected, a grand jury indicted Defendant on
January 10, 2018, for possession of a firearm by a prohibited
person in violation of 18 U.S.C. §§ 922(g) and
924(a)(2). Doc. 1. Defendant subsequently moved to suppress
the evidence found in the vehicle and his responses to
questions at the scene about the vehicle's contents.
briefing requires the Court to resolve three issues: (1)
whether Defendant has standing to challenge the search; (2)
whether the automobile exception applies to the warrantless
search of the passenger compartment of the vehicle; and (3)
whether the public safety exception permitted law
enforcement's un-Mirandized questions at the
scene about the vehicle's contents. The Court addresses
each issue below.
initial matter, the government argues that Defendant lacks
standing to assert a Fourth Amendment challenge to the search
of the vehicle because he did not own it. Fourth Amendment
rights cannot be asserted vicariously. Rakas v.
Illinois, 439 U.S. 128, 133-34 (1978). Thus, Defendant
must demonstrate he had a “legitimate possessory
interest in or a lawful control over the car.”
United States v. Valdez Hocker, 333 F.3d 1206, 1209
(10th Cir. 2003) (alteration omitted) (quoting United
States v. Allen, 235 F.3d 482, 489 (10th Cir. 2000)).
the Court finds that Defendant has demonstrated a legitimate
possessory interest in or lawful control over the vehicle.
Defendant did not assert ownership over the items seized or
testify to an expectation of privacy. But he contends he had
purchased the vehicle from Mr. Acosta at the time of the
vehicle stop. To support this contention, Defendant offered
the affidavit of Mr. Acosta. In the affidavit, Mr. Acosta
states that he was the registered owner of the vehicle and
that he sold it to Defendant for approximately $1, 000 in
September 2017. In response to the affidavit, the government
called ATF Special Agent Kyle Lovelady. He testified that he
interviewed Mr. Acosta, and Mr. Acosta admitted that he could
not provide a specific date of sale or any extrinsic evidence
showing that he sold the vehicle to Defendant. Mr. Acosta
also confirmed during the interview that he subsequently