United States of America v. $64,895.00 in United States Currency

Filing 34

MEMORANDUM AND ORDER denying 28 Motion to Suppress by claimant Michael Shaw. Signed by District Judge Richard D. Rogers on 11/26/2012. (ms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
vs.

Case No. 10-1434-RDR

$64,895.00 IN CURRENCY

,

Defendant.
______________________________________
MEMORANDUM AND ORDER
This is a forfeiture action which is before the court upon a
motion to suppress filed on behalf of claimant Michael Shaw.

The

court has conducted an evidentiary hearing and shall deny the
motion to suppress because claimant Shaw was legitimately stopped
for a traffic offense and he voluntarily consented to additional
questioning and to a search of his car’s trunk after the traffic
stop was completed.
I.

Factual background
Claimant Shaw was driving an automobile heading west on I-70

in Saline County, Kansas on October 22, 2010.
passenger in the car.
an

experienced

Forrest Jones was a

Kansas Highway Patrol Trooper Scott Walker,

officer

with

drug

interdiction

training,

was

traveling east on I-70 when he observed Shaw’s vehicle pass a large
group of vehicles while in a construction area which was posted as
a no-passing zone.

According to Trooper Walker, Shaw passed a

truck and merged right into a single lane of traffic
causing the truck to brake to avoid a collision.

Trooper Walker

turned his vehicle around and decided to stop Shaw for passing in
a no-passing zone.
Shaw

stopped

his

car

without

incident.

Trooper

approached the vehicle on foot from the passenger side.
Walker asked for driver’s licenses and identification.
not have a driver’s license, but he had an ID card.
driver’s license.

Walker
Trooper

Shaw did

Jones had a

From his questions to Shaw and Jones, Walker

learned that they were traveling from Iowa to Phoenix, Arizona to
attend car races.
father.

The car belonged to the girlfriend of Jones’

It was a 1997 Mercury Grand Marquis.

“lived in” and dirty.

It appeared very

There was a strong odor of air freshener.

Trooper Walker thought he saw three cell phones in the car.
Trooper

Walker

went

back

to

his

vehicle

and

asked

the

dispatcher to check for criminal histories on Shaw and Jones. Both
had assault convictions and Shaw had a 1995 marijuana conviction.
Trooper Walker testified that he “Googled” the car races in Arizona
and learned that they were three weeks away.
He asked Shaw to exit the vehicle and Trooper Walker patted
him down. Shaw was admittedly nervous. Walker testified that Shaw
seemed excessively nervous, particularly after Trooper Walker
explained that he wasn’t going to arrest Shaw for driving without
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a license.

As Shaw was standing immediately behind the trunk of

the Grand Marquis, Trooper Walker returned Shaw’s identification
and gave him a citation.
no-passing zone.

He cautioned Shaw against passing in a

Then, he told Shaw to have a safe trip and said

that Jones would probably have to drive.
Trooper Walker turned and took a couple of steps toward his
car while Shaw started walking toward the passenger-side door where
Jones was seated.

After a few seconds, Trooper Walker turned and

asked if Shaw would mind if Trooper Walker asked him something.
Shaw indicated he had no objection.

Trooper Walker then asked if

Shaw was carrying any illegal drugs or guns in the car.
no.

Shaw said

Trooper Walker also asked if Shaw was carrying any large

amounts of cash.

Shaw answered affirmatively, indicating that he

had about “50 grand” on him because he was interested in buying a
commercial welding rig.

Shaw said the money was in the trunk of

the car in his bag.
Trooper Walker asked Shaw to stand aside and to ask Jones to
hop out of the car.

Shaw appeared to hand Jones his driver’s

license and/or other documents and relayed the request for Jones to
hop out of the car.

Jones exited the car and spoke with Trooper

Walker behind the car while Shaw stood in front of the car.
Trooper Walker questioned Jones about whether there was money in
the car.

Jones’ answers were consistent with Shaw’s answers.
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Jones said the money (he did not know how much) belonged to Shaw
and that Shaw was interested in buying a truck to do pipeline
welding.
Trooper Walker then directed Jones to sit in the ditch and
asked Shaw to return.

At this point, a drug dog in Trooper

Walker’s car apparently exited the car and moved aggressively
toward Jones.
dog to his car.

Trooper Walker called the dog off and returned the
There is no indication that Jones was hurt or that

the dog came very close to Jones.1
After putting the dog back in the car, Trooper Walker returned
his attention to Shaw and asked him again whether there were drugs
in the car and where the cash was.

Shaw denied there were drugs in

the car and said that the cash was in the trunk.

Trooper Walker

then asked Shaw, “you want to open it up and show me?”
“I can, I can.”

Shaw said

Shaw then proceeded to open the trunk of the car.

Shaw said there was about “60 grand” in the bag in the trunk.
said he didn’t have a receipt for the money.

Shaw

Trooper Walker

testified that the money was vacuum-sealed in a sack, which he
thought was unusual. He had seen such packaging in connection with
drug investigations before.

Trooper Walker decided to seize the

1

The interaction between Trooper Walker and Shaw and Jones is recorded and the
court has reviewed the recording which is an exhibit in this matter. But the
actions of the dog were not in the view of the camera. The recording only shows
to a limited extent how Trooper Walker reacted to what the dog was doing, not the
dog itself.

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currency and arranged for Shaw and Jones to travel to Salina for
further questioning.
Throughout the traffic stop, Trooper Walker presented himself
in a calm and unthreatening manner.

His tone of voice did not

suggest that claimant Shaw had to answer additional questions once
he had returned Shaw’s documents to him and given him a traffic
citation.

Trooper Walker was wearing a holstered firearm, but

there was no reference to it or indication that the weapon might be
utilized in any fashion.

Trooper Walker was the only officer at

the scene.
II.

Burden of proof
The court assumes that the claimant’s burden in this matter is

the same as that of a criminal defendant making a motion to
suppress under similar circumstances.
claimant Shaw has the burden of proof.

Therefore, in general,
See U.S. v. Clarkson, 551

F.3d 1196, 1200 (10th Cir. 2009)(the proponent of a motion to
suppress has the burden of proof).

“To successfully suppress

evidence as the fruit of an unlawful detention, a defendant must
first establish that the detention did violate his Fourth Amendment
rights.”

U.S. v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir.)

cert. denied, 531 U.S. 887 (2000).

A defendant also bears the

burden of showing a factual nexus between the illegality and the
challenged evidence.

Id.

If these two showings are made, the
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government must prove that the evidence sought to be suppressed is
not “fruit of the poisonous tree” either by demonstrating the
evidence would have been inevitably discovered, was discovered
through independent means, or was so attenuated from the illegality
as to dissipate the taint of the unlawful conduct.

Id.

If the

government is relying upon consent to justify the lawfulness of a
search, the burden of proving that the consent was freely and
voluntarily given is upon the government.

U.S. v. Soto, 988 F.2d

1548, 1557 (10th Cir. 1993).
III.

Claimant’s arguments for suppression
A.

The initial stop

Claimant’s
threefold.

arguments

for

suppression

this

case

are

First, claimant argues that the initial traffic stop

was not supported by adequate cause.
contention.

in

The court rejects this

Trooper Walker was a credible witness to the court.

We conclude that Trooper Walker observed claimant pass vehicles in
a no-passing zone in violation of K.S.A. 8-1520.

See U.S. v.

Shareef, 100 F.3d 1491, 1500-01 (10th Cir. 1996)(a traffic stop is
justified when officers observe traffic violations).
B.

Freedom to leave at conclusion of traffic stop

Second, claimant Shaw argues that he was illegally detained
without his voluntary consent after Trooper Walker issued the
citation and returned his identification or other documents to
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claimant and Jones.

Claimant contends in support of this argument

that Jones was never informed by Trooper Walker that Jones and
claimant were free to go.

Jones needed to be the driver since he

had the only valid driver’s license.

Therefore, claimant contends

that he was not free to go as long as Jones did not know that Jones
was released to go.
Neither Jones nor claimant testified in this matter.

So, the

court does not have evidence regarding what they were thinking, or
what Jones heard, or what Jones would have done if he had heard
that he was free to go.
The important point here is that claimant Shaw knew that he
was free to go.

Trooper Walker finished the citation and gave it

along with the other paperwork to Shaw.

He told Shaw, “you guys

have a safe trip,” turned away, and walked a couple of steps toward
the patrol car.

This signaled to claimant Shaw that the traffic

stop was concluded and that he was free to go.

See U.S. v. Hunter,

663 F.3d 1136, 1144-45 (10th Cir. 2011); U.S. v. Ledesma, 447 F.3d
1307, 1314 (10th Cir. 2006).
answer

more

questions

from

At that point, Shaw’s decision to
Trooper

Walker

was

voluntary

and

consensual.
If Jones did not hear what Trooper Walker said and believed
that he was still detained, Shaw may not rely upon that to argue
that Shaw’s detention was unlawful.
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Shaw was aware that he was

free to go and he could have informed Jones that they both were
free to go.

Instead, he answered more questions from Trooper

Walker. Since claimant presented no evidence that Jones would have
left in the car with Shaw if Trooper Walker had told Jones directly
that he and Jones were free to go, claimant has not proven that the
evidence

found

as

a

result

of

the

search

was

the

fruit

of

claimant’s illegal detention.

A similar situation occurred in

Nava-Ramirez,

did

where

a

driver

not

succeed

evidence taken during a search of a car.

in

suppressing

In Nava-Ramirez, the

driver he did not present evidence that had he requested permission
to leave from the car’s owner (who was a passenger), or otherwise
attempted to depart the scene, that he would have been able to do
so prior to the search which produced the evidence. See also, U.S.
v. DeLuca, 269 F.3d 1128, 1133 (10th Cir. 2001)(denial of motion to
suppress affirmed because movant failed to show that had he
requested to leave to scene of the traffic stop he would have been
able to do so in the car which was searched).
Claimant argues the case of U.S. v. Guerrero-Espinoza, 462
F.3d

1302

(10th

Cir.

2006).

In

Guerrero-Espinoza,

the

passenger/owner of a vehicle consented to additional detention and
questioning without knowing that the officer had completed the
traffic stop and issued the driver a warning citation.

The

additional detention and questioning led to a consent to search the
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vehicle. The Tenth Circuit held that the consent was not voluntary
because the passenger/owner did not realize at the time of the
consent that the traffic stop had ended and that he was free to
leave. This case is distinguishable from Guerrero-Espinoza because
claimant Shaw knew that the traffic stop had been completed and
that he was free to go when Trooper Walker told him to have a safe
trip.

If

voluntary,
suppression

Jones’

decision

claimant
because,

Shaw

to

may

first,

answer
not

more

use

claimant

that
Shaw

questions
fact
must

to

was

not

justify

establish

a

violation of Shaw’s constitutional rights, and second, claimant
Shaw must establish a factual nexus between his alleged illegal
detention and the challenged evidence.

See Nava-Ramirez, 210 F.3d

at 1131.
In addition, at the point that Trooper Walker asked Jones to
exit the car, Trooper Walker had reasonable suspicion to extend the
detention of Shaw and Jones to answer more questions.

At that

time, he knew that Shaw had a prior drug conviction and that both
Shaw and Walker had prior convictions for assault.
a heavy odor of air freshener.

Their car had

They were driving to a state which

is known as a drug source and were carrying a large amount of cash.
Their alleged reason for going to Arizona (to attend car races in
about three weeks) seemed dubious. In addition, claimant Shaw
seemed excessively nervous during the citation process, even after
9

being told that he would not be arrested for driving without a
license. These circumstances were sufficient for Trooper Walker to
extend his investigation after the initial reason for the traffic
stop had been concluded.

See U.S. v. Simpson, 609 F.3d 1140 (10th

Cir. 2010)(finding reasonable suspicion to extend a stop on the
basis

of

prior

conviction

for

drug

transportation,

extreme

nervousness, and inconsistent answers about seemingly implausible
travel plans).
C.

Consent to answer questions and to open the trunk

Finally, the court finds that claimant Shaw voluntarily agreed
to answer questions and to open the trunk so that Trooper Walker
could look inside.

Looking at the totality of the circumstances

set forth earlier in this order, the court finds that a reasonable
person in the position of claimant Shaw would believe that he was
free to decline to answer questions from Trooper Walker after the
officer had returned his documents, wished him a safe trip, turned
around, and walked a couple of steps back to his car.

Trooper

Walker was not intimidating when he asked claimant, “mind if I ask
you something?”

As for the request to open the trunk, Trooper

Walker’s phrasing was more commanding – “you want to open it up and
show me?”

Still, the court believes that a reasonable person in

claimant Shaw’s position would have felt free to refuse the
request, even if at this point the encounter had turned into a
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detention based upon reasonable suspicion. This case is similar to
U.S. v. Contreras, 506 F.3d 1031, 1036-37 (10th Cir. 2007).

In

Contreras, as in this case, there was a traffic stop on an open
interstate highway in broad daylight.

The officer told the

defendant he was not going to give her a ticket and to “drive
safe.”

Then, while standing at the driver’s car window, he asked,

“You wouldn’t mind opening your trunk real quick before I let you
go, would you?”

The Tenth Circuit agreed with the district court

that the driver’s assent to this question was voluntary, even if
she was still under lawful detention.
following factors:

The court emphasized the

1) the officer’s casual phrasing; 2) his tone

of voice; 3) the absence of a show of force; 4) the stop was in
broad

daylight

on

an

interstate

highway;

and

5)

the

driver

repeatedly said “okay” in response to the requests for consent.
The same factors indicate that claimant Shaw voluntarily consented
to open the trunk in this case and the court so finds.
IV.

Conclusion
For the above-stated reasons, claimant’s motion to suppress

shall be denied.
IT IS SO ORDERED.
Dated this 26th day of November, 2012, at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge

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