United States District Court, D. Utah, Central Division
SAM SENIOR JUDGE UNITED STATES DISTRICT COURT
matter is before the court on defendant Tommy Gurule's
motion to suppress. Defendant Tommy Gurule (hereinafter
“Mr. Gurule”) has moved to suppress all evidence
obtained as a result of the detention and search of his
person during a traffic stop on 29 June 2017. Mr. Gurule
asserts that all evidence obtained and all statements made to
law enforcement officers after the search are poisonous
fruits of a detention and search made in violation of his
rights under the Fourth Amendment of the United States
Constitution and must therefore be suppressed. The court
bases its decision on parties' arguments from an
evidentiary hearing held 11 December 2017 and subsequent
court finds the following facts. Mr. Gurule was the backseat
passenger of a car stopped for a traffic violation by West
Valley City Detective Jeffrey Smith (hereinafter
“Detective Smith”) when the driver of the car
engaged in improper lane changes and failure to use a turn
signal. ECF No.19 at 2. As Detective Smith turned on his
lights, the vehicle pulled into a gas station. Id.
Detective Smith pulled up behind the stopped vehicle,
approached the passenger side window, and requested
identification from all three occupants of the vehicle.
Id. at 2-3. Upon returning to his vehicle to check
the record of each occupant, Detective Smith called for
back-up. Id. at 3. Detective Benjamin Watson
(hereinafter “Detective Watson”) soon arrived on
the scene. Id. Upon looking into the vehicle,
Detective Watson could see a considerable amount of property
piled almost to the ceiling next to the back seat passenger.
Id. The property caught his attention because it
would be hard to see any weapons hidden near the passenger.
Id. at 3-4. However, Detective Watson acknowledged
that Mr. Gurule made no furtive movements while in the car.
ECF No. 16 at 53:15-16. Detective Smith also acknowledged
that none of Mr. Gurule's actions while in the car made
him think Mr. Gurule was dangerous in any way. Id.
record check revealed that none of the occupants of the
vehicle had a valid driver's license and that the driver
of the vehicle had some misdemeanor warrants for her arrest.
ECF No. 16 at 11:8-15, 12:5-8. Detective Smith asked the
driver to exit the vehicle, which she did. Id. at
12:10-12. After a brief conversation in which Detective Smith
asked her, among other things, whether there was anything
illegal in the car, the driver consented to a search of the
vehicle. Id. at 12:14-16. Because the officers
planned to search the vehicle, Detective Smith asked Mr.
Gurule to exit the vehicle and Detective Watson
simultaneously asked the front passenger to exit the vehicle.
Id. at 12:23-25, 13:1. Detective Watson conducted a
consensual pat down of the front seat passenger while
Detective Smith was engaging Mr. Gurule in conversation.
Id. at 41:7-9.
Gurule exited the vehicle, Detective Smith asked whether he
had anything illegal on him. ECF No. 16 at 13:21-22. Mr.
Gurule said he did not. Id. Detective Smith asked
whether he could search Mr. Gurule for weapons; Mr. Gurule
responded that he did not want to be searched. Id.
at 13:22-25. Detective Smith then told Mr. Gurule to sit on
the curb near the vehicle, Id. at 14:1, which Mr.
Gurule did, with his arms “completely slouched forward
on his knees.” Id. at 42:14-15. Detective
Watson testified that the way Mr. Gurule leaned forward while
sitting on the curb gave him concern that he might be
preparing to flee or fight, but acknowledged that Mr. Gurule
did not reach for anything or attempt to flee. Id.
at 54:22-25, 55:1-11.
Smith asked Mr. Gurule whether he had any weapons on him. ECF
No. 16 at 15:2. Mr. Gurule looked away and said,
“no.” Id. at 15:8-10. Detective Smith
then asked specifically whether Mr. Gurule had a gun on
him. Id. at 15:20-21. Mr. Gurule, broke eye contact
with the detective, looked away when he said “no,
” and then looked back at the detective. Id.
at 15:19-23. Detective Smith told Mr. Gurule he felt like Mr.
Gurule was “giving [him] dodging answers” and
asked him to stand up. Id. at 16:11-12. Though
Detective Smith expressed concern that Mr. Gurule answered
his questions in an evasive manner, he acknowledged that Mr.
Gurule did not show any signs of dangerousness in the car,
did not make any furtive movements or gestures, nor indicate
any signs of dangerousness after leaving the car.
Id. at 25:11-18, 26:17-25, 27:1-2.
Watson testified that while Mr. Gurule was sitting on the
curb, Detective Watson saw “a large bulge on his right
pocket of his jeans. It appeared that there was some sort of
large item in his pocket.” ECF No. 16 at 43:9-21. With
Detective Smith standing on one side of him and Detective
Watson on the other, Mr. Gurule was asked to stand up.
Id. at 44:12-16. As Mr. Gurule began to stand,
Detective Smith held Mr. Gurule's left wrist and back of
his arm to support him. Id. at 16:13-21. Detective
Watson testified that as Mr. Gurule was standing, he noticed
Mr. Gurule brought his right hand near the pocket where
Detective Watson had seen the bulge, so the detective grasped
Mr. Gurule's forearm to make sure Mr. Gurule did not
reach for whatever was in the pocket. Id. at
44:16-20. Detective Watson testified that “as soon as
[he] grasped his arm or put [his] hand around his forearm
area [he] saw a handle or a grip to a small handgun in that
pocket where that bulge was.” Id. at 45: 5-7.
Detective Smith testified that “when [Mr. Gurule] stood
up [he] saw a silver colored object in [Mr. Gurule's]
pocket, ” and he heard Detective Watson say he saw a
gun in Mr. Gurule's right front pocket, after which he
“held onto [Mr. Gurule's] arm a little bit more
firmly, ” handcuffed him and retrieved the gun from his
pocket. Id. at 16:25-17:2-13. When asked how much
time passed between the time he asked Mr. Gurule to exit the
vehicle and when he located the gun on Mr. Gurule, Detective
Smith responded, “I don't know. 15, 20 seconds, 30
seconds. I am not sure”. Id. at 17:17-18.
Gurule was interviewed a short time later in Detective'
Smith's patrol car, where he was given Miranda
warnings and agreed to speak with Detective Smith about the
incident. ECF No. 16 at 18:20-25, 19:1-3. Mr. Gurule
acknowledged that he was in possession of the gun and had had
it for years. ECF No. 18 at 4. He also explained where he
obtained it. Id.
Gurule has brought a motion to suppress the evidence obtained
from the illegal detention and search of his person. The
government's burden in responding to a motion to suppress
is to establish, by a preponderance of the evidence, the
legality of the seizure and search. United States v.
Burciaga, 687 F.3d 1229, 1230 (10th Cir. 2012). The
government thus need only show that there is a 51% likelihood
that the Fourth Amendment was not violated. United States
v. Banks, 93 F.Supp.3d 1237, 1251 (D. Kan. 2015). The
court finds that this burden was not met, and Defendant's
motion to suppress is granted.
traffic stop is a form of seizure under the Fourth Amendment.
However, the Supreme Court has also held that an officer
making such a traffic stop may order passengers to get out of
the car pending completion of the stop, even without any
belief that the passenger(s) have committed a crime.
Maryland v. Wilson, 519 U.S. 408, 415 (1997). But in
order for an investigative detention to be reasonable, an
officer's actions must be justifiable at the beginning
and then remain “reasonably related in scope to the
circumstances which justified the interference in the first
place.” United States v. Botero-Ospina, 71
F.3d 783, 786 (10th Cir. 1995), citing Terry v.
Ohio, 392 U.S.1, 20 (1968). The court finds that,
although the initial stop based on traffic violations was
reasonable, the further seizure of Mr. Gurule and subsequent
search of his person were not.
Supreme Court stated in Rodriguez v. United States
that once “the tasks are completed as it relates to a
traffic stop, the defendant is free to go.” ECF 18 at
6; see also135 S.Ct. 1609 (S.Ct. 2015). After
having collected his license and verified that Mr. Gurule was
not wanted (the necessary tasks related to the original stop,
at least in regards to Mr. Gurule), he should have been free
to leave. However, the police asked for permission to conduct