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United States v. Kendall

United States District Court, D. Colorado

February 11, 2019



          William J. Martínez United States District Judge

         The Government charges Defendant Aaron Michael Kendall (“Kendall” or “Defendant”) with distribution of a controlled substance, 21 U.S.C. § 841(a)(1); possession of a firearm as a felon, 18 U.S.C. § 922(g)(1); and possession of a firearm during and in furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A). (ECF No. 1.) Kendall filed a Motion to Suppress (“the Motion”) arguing that the firearm and drugs in question were discovered as part of an unconstitutional inventory search. The Court held an Evidentiary Hearing on November 6, 2018, and a Supplemental Evidentiary Hearing on January 31, 2019. For the reasons explained below, the Court denies the Motion.

         I. BACKGROUND

         A. Traffic Stop of Kendall

         On January 31, 2017, around 7:04 p.m., Officer Rezac of the Wheat Ridge, Colorado Police Department (“WRPD”) observed a Honda with a malfunctioning tail light near West 44th Avenue and North Wadsworth Boulevard. (ECF Nos. 33; 37.) Officer Rezac turned on his emergency lights to stop the vehicle. The vehicle slowed to approximately 10 miles per hour but continued westbound on 44th Avenue, passing several parking lots and other opportunities to pull over the vehicle. Office Rezac reported seeing Kendall lean back and forth toward the passenger seat and waive his left hand outside the vehicle. (Evidentiary Hr'g Tr. at 9:49, Nov. 6, 2018 (“Nov. Tr.”).) Officer Rezac called dispatch for additional information about the vehicle, and was informed that the license plate was registered to an Acura. (Id. at 9:48.) Officer Rezac suspected that the vehicle had been stolen and called for backup.

         Officers Cotten and Levan, both of WRPD, joined Officer Rezac in their own patrol cars. When Kendall eventually stopped the vehicle on the 4300 block of Carr Street, they performed a felony stop. (Id. at 9:50; Supplemental Evidentiary Hr'g Tr. at 13:51, Jan. 31, 2019 (“Jan. Tr.”).) At this point, Officer Levan activated his body camera. (ECF No. 62 (“Body Cam.”).)[1] The officers ordered Kendall out of the vehicle and placed him in temporary custody in the backseat of Officer Rezac's patrol car. (Jan. Tr. at 13:51.) Officer Rezac read Kendall his Miranda rights from a WRPD-issued card, and Kendall waived them. (ECF No. 37 at 2; Nov. Tr. at 9:51.)

         The officers learned Kendall's identity and determined that he did not have a current, valid driver's license. (Nov. Tr. at 9:52.) The officers checked the vehicle identification number with dispatch and determined that the vehicle had not been reported stolen. Kendall told Officer Rezac that he was in the process of buying the car from a friend, Carol Mathews, who was the registered owner of the vehicle. He also told the officers that he did not have insurance on the car, but later claimed that his wife had it. He did not, however, produce any evidence of insurance. The officers called Matthews twice, once from Officer Rezac's phone and once from Kendall's phone (with Kendall's consent). They did not reach Matthews. (Id. at 9:55.) Officers also called Kendall's wife to confirm whether the vehicle was insured, but did not reach her. (Id. at 9:52-53.)

         In deciding whether to tow a vehicle, Officer Rezac generally takes into account “the condition of the vehicle, where it [was] parked, if there [was] anyone responsible that can come collect the vehicle, if the vehicle is insured, if it has a valid driver, [and] if it [was] even able to be operable at all.” (Id. at 9:41.) In this circumstance, Officer Rezac decided to impound the car in part because having an uninsured vehicle on the roads, particularly with a driver without a valid license, endangered public safety and no alternative driver could be contacted. (Id. at 9:53-54.). Officer Rezac then called and asked his sergeant for permission to tow the vehicle, and the sergeant advised that he could do so. (Id. at 9:56.) At that time, Kendall was in custody for driving with an expired license, was unable to show proof of insurance, and the registered owner could not be contacted. (Id. at 9:52-53.)

         While Officer Rezac was in the process of writing a traffic summons charging Kendall with Driving a Vehicle with a Defective Tail Lamp, Driving a Vehicle Without a Valid Driver's License, and Failure to Display Evidence of Insurance, Officer Cotten started an inventory search of the vehicle. (ECF No. 33 at 1; ECF No. 37 at 4.) Office Cotten found a counterfeit $20 bill and informed Officers Rezac and Levan. (Body Cam. at 32:25.) At that point, Officer Rezac placed Kendall under arrest. (Id. at 34:20.) Officer Rezac then transported Kendall to the WRPD on suspicion of a felony forgery offense. (Id. at 9:57, 11:11.)

         After the inventory search (detailed below), Matthews returned the phone call while the vehicle was being loaded onto the tow truck (but prior to it being towed). (ECF No. 37 at 4.) She confirmed that the vehicle was not stolen, that she had recently sold the vehicle to Kendall, and that she still possessed the title because Kendall had not yet paid in full for the car. (Id.) Officer Cotten told Matthews that the vehicle was being towed to Connolly's Towing, Inc., a local tow shop and impound yard. (Id.) The Government states that there is no indication that Matthews attempted to stop the towing, nor did she offer to come to the scene to retrieve the vehicle. (Id.)

         B. Inventory Search of the Vehicle

          1. Drugs Under the Center Console

         As part of the inventory search, Officer Cotten searched the center console for valuables. During that search, he located a small clear plastic bag containing a white crystal substance (consistent with methamphetamine) and two clear plastic bags containing a black substance (consistent with heroin).[2] (Id. at 3.) The bags of drugs were located beneath the center console. (ECF No. 42 at 1.) Kendall contends that the discovery of the drugs in the center console was only possible after the officer removed a panel at the bottom of the console “designed to give a person access to the inner workings of the car” and that the area where the drugs were found was “not designed for storage.” (Id.)

         Officer Cotten testified that when he initially opened the console, he removed a CD, phone, and napkins. (Jan. Tr. at 13:53-54.) After doing so, he noticed that the bottom of the console was “ajar” and not affixed. (Id. at 13:44; Nov. Tr. at 10:45, 11:21-22.) He noticed a “small plastic bag, ” sticking out from beneath the panel at the bottom of the console. (Nov. Tr. at 10:46; Jan. Tr. at 13:45, 13:53-54.) Officer Cotten stated that he used “no force at all” to remove the bottom panel because it was “essentially just removing the lining that is sitting right on top of it.” (Jan. Tr. at 13:45.) He did not have to pry up the bottom or use any tool to access the compartment. (Id.)

         After Officer Cotten discovered the drugs, Officer Lovan looked in the compartment and used his body camera to videotape himself raising the bottom panel. (Id. at 13:25.) Consistent with Officer Cotten's testimony, it appears in the video that Officers Cotten or Lovan applied only minimal, fingertip force to gently raise the bottom of the center console. (Body Cam. at 38:08-39, 40:31-52.) From the camera footage, the front portion of the center console is ajar and, when lifted, the drugs are clearly visible.

         Shortly thereafter, Officer Lovan's shift ended and another officer arrived to assist Officer Cotten with the remainder of the inventory search. At this time, Officer Lovan stopped his body camera. (Id. at 42:50-57.)

         2. Gun Behind the Panel Below the Glove Compartment

         Almost immediately after finding the counterfeit $20 bill that led to Kendall's arrest, Officer Cotten also found a belly holster, a type of firearm holster typically used for the concealed carry of a firearm or by law enforcement, on the front passenger seat. (Jan. Tr. at 13:55-56; Body Cam. at 32:41.) There was no firearm in the holster, leading the officers to suspect that a firearm was stowed somewhere in the vehicle and prompting them to search places where a firearm could be stored. (Jan. Tr. at 13:31, 13:56.) It also caused the officers to be concerned for public and officer safety to have a weapon stowed somewhere in an unattended vehicle slated to be towed. (Id. at 13:31-32, 13:57.)

         While Officer Cotten was searching underneath the passenger seat during the inventory search to find items of value, he turned his head to the right and looked at the underside of the panel below the glove compartment. (Id. at 13:41.) He noticed that the panel below the glove compartment was not flush with the other paneling, was hanging down slightly, and appeared to have been tampered with. (Id. at 13:42; Nov. Tr. at 10:50.) Because he had found the empty gun holster on the passenger seat, Officer Cotten suspected that the firearm could be in the vicinity of the passenger seat. (Nov. Tr. at 10:51.)

         Officer Cotten testified that he “tugged” the bottom of the loose portion of the panel below the glove compartment, which revealed the butt of a handgun. (Id. at 10:52.) He clarified that the amount of force used to reveal the handgun was “slight pulling” and “not prying.” (Id. at 10:53.) Officer Cotten stated that he recognized the item as the butt of a handgun “almost immediately.” (Id.) Thereafter, he “pulled slightly harder” on the panel below the glove compartment to retrieve the weapon. (Id.) Officer Cotten located a Sig Sauer P226 9mm handgun with an extended magazine clip. (ECF No. 37 at 4.) He subsequently learned that the firearm had been reported stolen. (Id.)

         Officer Lovan left before Office Cotten discovered the firearm. However, Officer Lovan's body camera captured several angles of the panel below the glove compartment from outside the car. From that angle, nothing appeared to be amiss. (Jan. Tr. at 13:41.) Indeed, Officer Lovan testified that he did not notice anything from outside the vehicle or upon reviewing the video, although he also noted that the car windows were dirty and difficult to see through. (Id. at 13:32-33.) Nor did Officer Lovan notice whether the panel below the glove compartment was loose when he looked inside the vehicle at the center console. (Id. at 13:37.)

         3. Other Items in Backpack and Vehicle

         Officer Cotten also searched a black backpack sitting on the passenger seat. Inside, he found a black box with two empty syringes, empty plastic bags, a small bag containing red and white pills, a small plastic container with yellow pills, and other drug paraphernalia. (ECF No. 33 at 2; ECF No. 37 at 4.) The officers also found a number of smartphones in the vehicle. By checking the serial number, the officers discovered that one of the smartphones had been reported stolen. (ECF No.37 at 3.)

         C. WRPD Inventory Search Policy

         WRPD maintains a policy (the “Policy”) on towed, abandoned, and impounded vehicles. (ECF No. 37-2.) The purpose of the Policy is “to safeguard the vehicle and its contents, to facilitate public safety, or to lawfully seize the vehicle and its contents for evidentiary purposes.” (Id. § 9.45.01.) The Policy defines a disabled motor vehicle as “a motor vehicle which is temporarily inoperable, either attended or unattended, upon a public right-of-way.” (Id. § 9.45.02.) It does not further define “temporarily inoperable.” As relevant here, the Policy states the following with respect to towing:

A. A vehicle may be towed under the following circumstances:
1. The driver, and sole occupant, of a vehicle is arrested, injured, or otherwise incapacitated.
2. A disabled vehicle constitutes a hazard. . . .
4. The condition of a vehicle or the manner in which it is equipped precludes safe operation on a public roadway.
. . .
6. The vehicle is uninsured.

(Id. ยง 9.45.03.) The Policy also ...

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