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United States v. Kissell

United States District Court, D. Kansas

December 3, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN STEPHEN KISSELL, Defendant.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER UNITED STATES DISTRICT JUDGE

         Defendant, 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.

         I. BACKGROUND[1]

         On 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 24.

         The 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.

         Sgt. 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 the pipe.

         Sgt. 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.[2] 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.

         Sgt. 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 impounding it.

         Based 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.

         II.ANALYSIS

         The 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.

         A. Standing

         As an 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.[3] 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)).

         Here, 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 retrieved ...


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