This post examines an opinion from the U.S. District Court for the District of Kansas: U.S. v.
Cooks, 2016 WL 6948065 (2016). The District Court Judge begins by
explaining that
Defendant Gary Cooks was pulled over
for driving with a suspended license. The traffic stop gave rise to a
protective sweep that uncovered a pill bottle. And that pill bottle led to a
search of the entire vehicle that uncovered a firearm in the trunk. As a
result, Cooks is now charged with possessing a firearm as a convicted felon in
violation of 18 U.S. Code § 922(g)(1).
Cooks moves to suppress all evidence obtained from the search of his car.
U.S. v. Cooks, supra.
The opinion, as opinions usually do, goes on to explain how
and why the case arose:
On or about April 1, 2016, Officer
Jared Henry of the Wichita Police Department responded to a reported aggravated
assault. The victim claimed an individual had leaned out of a tan Chevy Impala
and pointed a gun at her. The victim provided the Impala's tag number, and
Officer Henry learned that the tag was registered to a tan Chevy Impala
belonging to Gary Cooks. The victim's description matched Cooks, although she
failed to pick him out from a photo lineup. Officer Henry checked Cooks' Facebook profile, and found that
on March 25, Cooks had posted a video of what appeared to be him brandishing a
firearm. Officer Henry also learned that Cooks was a convicted felon with a suspended
driver's license.
On April 7, Officer Henry observed
Cooks leaving his residence in the tan Impala. Shortly thereafter, Officer
Henry pulled Cooks over for driving with a suspended license. Upon initial
contact, Officer Henry confirmed Cooks' identity and asked him to step out of
the vehicle. Officer Henry then patted Cooks down for weapons. Finding none,
Officer Henry directed Cooks to sit on the curb under supervision of another
officer that had arrived on scene. Officer Henry then proceeded to conduct a
protective sweep of the immediate vicinity of the area Cooks was occupying in
the car. Although Officer Henry knew that Cooks' license was suspended, he
testified that he did not intend on placing Cooks under arrest at the time he
conducted the protective sweep.
While conducting the protective sweep,
Officer Henry opened the middle console—located in the armrest between the
driver and passenger seat—and found a prescription pill bottle with
approximately 20 pills inside of it. The label had been ripped off of the
bottle. At this point, Officer Henry asked Cooks about the pills. Cooks stated
that they were Lortabs that had been prescribed to him following a
dental procedure. Cooks claimed that he had the procedure 60 days earlier, and
had refilled the prescription for Lortabs 30 days ago. Officer Henry
asked if Cooks had a label, or some document to verify that he had
the Lortabs pursuant to a valid prescription. Cooks stated that he did not
have anything on him or in the car to immediately verify the prescription, but
he offered to show Officer Henry his dental work and medical insurance
information in an attempt to assuage any suspicions. Cooks claimed that
whenever he got a new prescription, he would put the pills in the same old pill
bottle that had the label ripped off. Officer Henry did not follow up on any of
Cooks' explanations.
U.S. v. Cooks, supra.
The opinion then explains that
Officer Henry found Cooks' answers
suspicious. He believed that Cooks did not have a valid prescription for
the Lortabs, and at that moment, felt he had probable cause to arrest
Cooks for possession of narcotics. Officer Henry also believed he had probable
cause to search the rest of the car for additional narcotics. He conducted a
search of the entire vehicle and discovered a handgun and a jar of marijuana
inside of a bag in the trunk. At that point, Cooks was placed under arrest.
U.S. v. Cooks, supra.
The court goes on to note that “Cooks now moves to suppress
the evidence from the car, arguing that the protective sweep was improper and
the search of the trunk was not supported by probable cause.” U.S. v. Cooks, supra.
The District Court Judge began his analysis of the issues in
the case by explaining that
[t]he Fourth Amendment protects the `right
of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.’ `The Fourth Amendment
generally requires police to secure a warrant before conducting a search.’ But
there are exceptions to the warrant requirement. Officer Henry did not acquire
a warrant to search Cooks' vehicle, and thus, the Court must consider whether
any exceptions to the warrant requirement apply.
There are two searches at issue: (1)
Officer Henry's protective sweep of the vehicle immediately upon pulling Cooks
over; and (2) Officer Henry's more thorough search of the vehicle, including
the trunk. The Court will consider each search in turn.
U.S. v. Cooks, supra.
The judge addressed the issues in this order, so he began
with the propriety of the protective sweep of the vehicle. U.S. v.
Cooks, supra. The opinion begins that analysis as follows:
Cooks argues that under Arizona v. Gant, Officer Henry's protective sweep of the vehicle exceeded the
scope of a search incident to arrest. But this argument conflates two distinct
concepts: the search incident to arrest and the protective sweep.
`A search incident to arrest allows a
search not only of the arrestee, but also of the area within his “immediate
control,” meaning “the area from within which he might gain possession of a
weapon or destructible evidence.”’ The search incident to arrest doctrine
was applied in the context of vehicles in New York v. Belton. In Belton,
the Supreme Court held that when an officer arrests an occupant of a vehicle,
he may search the passenger compartment of that vehicle as a search incident to
arrest. Lower courts applied
the Belton rule inconsistently, but most courts read Belton to
allow an officer to search the vehicle even after he had arrested the occupants
and secured them in a patrol car. In 2009, the Supreme Court decided Arizona
v. Gant, noting that
Belton was being interpreted too broadly to allow officers to conduct
searches that were divorced from the underlying rationale of the search
incident to arrest doctrine. The Court went on to hold that the search of a
vehicle and its passenger compartments incident to arrest is only allowed (1)
when the arrestee is unsecured and within reaching distance of the area to be
searched or (2) when the officer reasonably believes that evidence of the crime
of arrest might be found.
U.S. v. Cooks, supra.
The opinion goes on to explain that
[d]istinct from the search incident to
arrest is the protective sweep. In Terry v. Ohio, the Supreme Court
held that an officer may search a suspect for weapons if he reasonably believes
he is dealing with an armed and dangerous individual. Such a search is
commonly referred to as a `protective search’ or `protective sweep.’ In Michigan v. Long, the Court applied Terry to situations in
which an officer has conducted a traffic stop. Thus, an officer may conduct a
protective sweep of a vehicle if he reasonably believes that the suspect poses
a danger. The purpose of the protective sweep is officer safety, and it is `limited
to those areas in which a weapon may be placed or hidden.’ The protective sweep
may encompass the glove compartment and any other area that could contain a
weapon and to which the suspect could later gain access.
Notably, the protective sweep is not
subject to the limits placed on a search incident to arrest. A protective sweep
usually occurs before a suspect is placed under arrest, and in some cases when
a protective sweep is performed, the suspect might not be arrested at all. “In
the no-arrest case, the possibility of access to weapons in the vehicle always
exists, since the driver or passenger will be allowed to return to the vehicle
when the interrogation is complete. And therefore, unlike a search incident to
arrest, a protective sweep of a vehicle may be conducted even when the suspect
is not in reaching distance of the area at the time of the search.
U.S. v. Cooks, supra.
The judge then began his analysis of the propriety of the
protective sweep, explaining that
[w]hen Officer Henry conducted his
protective sweep of Cooks' vehicle, Cooks was not under arrest. At that point,
Cooks was only stopped for driving on a suspended license—and Officer Henry
testified that he did intend to arrest Cooks for that offense. Had Officer
Henry not found Cooks' Lortabs, the encounter might have ended with Cooks
returning to his vehicle. Therefore, the facts in this case are much more akin
to Michigan v. Long than Arizona v. Gant, and the
limitations on searches incident to arrest do not apply.
In other words, Officer Henry's initial
search was a protective sweep and not a search incident to arrest. Officer
Henry was authorized to conduct a protective sweep if there was reasonable,
articulable suspicion that Cooks could be armed. It had been reported to
Officer Henry that an individual matching Cooks' appearance had brandished a
handgun from a tan Chevy Impala just a week earlier. And Officer Henry had
viewed a recently uploaded Facebook video of Cooks brandishing what appeared to
be a handgun. Given these facts, Officer Henry was justified in conducting a
protective sweep of Cooks' vehicle. Additionally, the search did not exceed the
scope allowed for under the law. Officer Henry limited the search to areas
within reaching distance that could have contained a weapon. The prescription
pill bottle was located in such an area. And so, Officer Henry uncovered the
prescription pill bottle and Lortabs while conducting a legal search.
Because the pills were discovered
through a lawful protective sweep, the Court will not suppress them as
evidence. The Court now turns to Officer Henry's search of the trunk of Cooks'
vehicle.
U.S. v. Cooks, supra.
The judge began the analysis of the search of the trunk by
explaining that a police officer
may conduct a warrantless search of a
vehicle if he has probable cause to believe contraband will be found inside. In
such circumstances, `the officer may search the entire vehicle, including the
trunk and all containers therein that might contain contraband.’ After
questioning Cooks about the pill bottle, Officer Henry believed that Cooks
possessed the pills illegally.
Officer Henry said he was struck by
several things in his conversation with Cooks. First, that Cooks was unusually
talkative and tried to change the subject when asked about the pills. Officer
Henry testified that, in his experience, such behavior suggested dishonesty.
Second, Officer Henry found it suspicious that there were approximately 20
pills in the bottle for a 60 day-old prescription that had only been refilled
once. Third, when asked to verify the prescription, Cooks presented his
health insurance card, but not an actual label or something to verify that
the Lortabs were lawfully prescribed him. Fourth, Officer Henry found
it unbelievable that Cooks would place legally prescribed pills in an unmarked
prescription pill bottle. Cooks' explanation, Officer Henry testified, was
simply incredible. Accordingly, Officer Henry felt that he had probable cause
to arrest Cooks for possessing the Lortabs illegally and to search
the rest of the vehicle.
U.S. v. Cooks, supra.
The opinion goes on to address the issue of probable cause,
explaining that
Cooks argues that the pill bottle and
his explanations was not enough evidence to provide Officer Henry with probable
cause to search his trunk. At the hearing on his motion to suppress, Cooks'
counsel argued that instead of searching the vehicle at the scene, Officer
Henry `could have had the car impounded. [He] could have gotten a warrant to
try to search it.’ While the Court agrees that Officer Henry certainly could
have tried to get a search warrant, he would have been unsuccessful because
probable cause was lacking.
Probable cause to search is established
where known facts and circumstances would lead a reasonable person to believe
evidence of a crime will be found. There must be a nexus between the
suspected criminal activity and the place to be searched. Probable cause is
measured against an objective standard of reasonableness and cannot be
established `simply by piling hunch upon hunch.’ Rather, the Court must look at
the facts and consider not only those supporting probable cause, but also `those
that militate against it.’
U.S. v. Cooks, supra.
The judge goes on to explain that
[i]n this case, there was insufficient
evidence to establish probable cause for a search of the trunk. In his
testimony, Officer Henry was able to articulate why he was suspicious of Cooks'
answers. And indeed, if the test were reasonable suspicion, the Court would
certainly find that Officer Henry had a reasonable, articulable suspicion of
criminal activity. But `[r]easonable suspicion is a less demanding standard
than probable cause.’ Cooks gave plausible answers to Officer Henry's questions
about the pills. And while Officer Henry's suspicions may have been justified,
the evidence did not rise to the level of probable cause to search the vehicle.
Most conversations between a law enforcement
officer and one suspected of criminal activity in situations such as this, that
give rise to probable cause supporting a more thorough search, arise because
the suspect gives responses that in light of the known facts are illogical or
make no sense. Cooks' responses that he had recently had undergone a dental
procedure, had been prescribed pain pills for that procedure, and had the pain
medication refilled, is not illogical or nonsensical. While it was unusual that
the medication was contained in a bottle with the label removed, Cooks' story
was otherwise coherent and consistent with the known facts at the time.
Moreover, though Cooks could not immediately provide a pill bottle label
showing a prescription for Lortabs issued to him, he did offer to
display the dental work to the officer to prove that he had received recent
treatment, and he did offer to show his health insurance card. Both offers were
implicitly declined.
U.S. v. Cooks, supra.
The opinion concludes by explaining that
[i]n light of all the facts then known
to the officer, it is not illogical, unreasonable or necessarily unbelievable
that Cooks actually had a dental procedure, that he had received a prescription
for pain medication because of that procedure, that perhaps after refilling the
prescription his pain subsided somewhat so that much of his refilled medication
would still remain. Though perhaps unusual, these representations viewed
in total are not so implausible or unbelievable to rise from the level of
reasonable suspicion to that of probable cause. The Court does not believe
that, on this showing alone, a neutral magistrate would have found a sufficient
showing of probable cause to have issued a search warrant. Nor does this Court
find a sufficient showing of probable cause. Thus Officer Henry's warrantless
search was unlawful.
Viewed objectively, the evidence did
not establish a fair probability that contraband would found in the trunk.
Thus, Officer Henry did not have probable cause to search Cooks' trunk, and the
evidence retrieved from that search is suppressed.
U.S. v. Cooks, supra.
The judge therefore held that “[b]ecause Officer Henry
searched the trunk of Cooks' vehicle without probable cause to do so, Cooks'
motion is granted and all evidence recovered from the trunk is suppressed.” U.S. v.
Cooks, supra.
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