USA vs Takeuchi

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
UNITED STATES OF AMERICA,
Plaintiff,
vs. 	Case No: 20-PO-394-MLC
KENSEI TAKEUCHI
Defendant.
ORDER DENYING MOTION TO SUPPRESS
THIS MATTER comes before the Court upon Defendant Kensei Takeuchi’s
(hereinafter, “Defendant”) Motion to Suppress [Doc. 7], which was filed on September 8,
2020. The United States filed its Response to Motion to Suppress [Doc. 8] on September
18, 2020. Defendant filed a Reply to Response [Doc. 10] on September 28, 2020. The Court
held an evidentiary hearing on November 19, 2020. The Court, having fully reviewed the
relevant facts and circumstances of this Motion, is prepared to rule.
BACKGROUND
This case involves possession of marijuana within Yellowstone National Park
(hereinafter, “Yellowstone”). Yellowstone, much like the rest of the world, has felt the
impacts of COVID-19. In March, the National Park Service closed Yellowstone and
implemented the Yellowstone National Park Reopening Plan. The plan consisted of three
linear phases which, at the National Park Service’s discretion, were to be transitioned
FILED
U.S. Magistrate Judge
8:11 am, 11/30/20
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through as a means to safely reopen the park. Phase 1 of the Reopening Plan focused on
allowing the public into the park, but without overnight stay and limited services. Phase 1
began on May 18, 2020 and stayed in place until June 15, 2020. On June 15, 2020, the
National Park Service transitioned into Phase 2. At that time, campgrounds were open and
most park amenities were functioning at some capacity.
On June 12, 2020, before Phase 2 was implemented, Park Rangers Zavalea and
Bravo were on a routine patrol near the Canyon area of Yellowstone. At approximately
10:34 p.m. the rangers noticed a white Subaru parked in the Wapiti Lake Trailhead parking
lot with a sun shield in the front window. 	After entering the parking lot, the rangers
positioned their cruiser approximately one and a half to two car lengths behind the Subaru
and started to report to dispatch. Simultaneously, the Defendant began to open his driver
door and exit his vehicle while the rangers turned on their emergency flashing lights.
Immediately after the emergency lights were engaged, the rangers exited their
cruiser and approached the Defendant. Ranger Bravo initially asked the Defendant, “how
are we doing?” He then asked, “what’s going on tonight?” Defendant informed Ranger
Bravo that he was just checking his map and “getting ready to get out of [there]”. Defendant
claimed to have camping arrangements at the Teton View Campsite. Ranger Bravo then
informed the Defendant that camping within the park, at that time, was illegal.
The conversational tone of the interaction changed once Defendant presented his
identification to Officer Bravo. At this point, Officers Zavaleta and Bravo had smelled the
odor of raw marijuana and Ranger Zavaleta spotted a purple marijuana grinder and a
sleeping bag in the Subaru. While looking at Defendant’s identification, Officer Bravo
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asked Defendant how much marijuana he had. Defendant told the Ranger that he had
“some” and later clarified it was enough “to get him to go to sleep”. Defendant was then
asked to sit on the curb while the rangers searched the Subaru. Ultimately, a total of 3.64
grams of Marijuana was found. Defendant was issued a warning for illegal camping and
issued a violation for possession of a controlled substance pursuant to 36 C.F.R. 2.35(b)(2).
DISCUSSION
“The proponent of a motion to suppress bears the burden of proof.” 	United States v.
Clarkson, 551 F.3d 1196, 1200 (10th Cir. 2009) (quoting United States v. Moore, 22 F.3d
241, 243 (10th Cir. 1994)). As such, Defendant bears the burden of proof for all claims
made in his Motion to Suppress. Those claims are (1) the rangers did not have reasonable
suspicion of criminal activity prior to seizing the Defendant, therefore making the seizure
wrongful, and 2) said seizure took place as soon as the rangers activated their emergency
lights. The Defendant argues that had the rangers not activated their emergency lights at
the moment they did, they could have legally approached the Defendant, struck up a
conversation, and perhaps even look inside the windows of the Subaru. According to the
Defendant, such would constitute a lawful consensual encounter between the parties.
Instead, the Defendant claims that he was wrongfully seized under the Fourth Amendment
upon the moment the rangers activated their emergency lights because, at that moment,
the rangers did not have reasonable suspicion of criminal activity.
The Government argues that the initial encounter between Defendant and the
rangers was a product of the rangers’ community caretaking function, rather than some
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type of established police-citizen encounter. In the alternative, the Government claims if
the rangers were not acting within their community caretaking function, the interaction
between the parties only rises to the level of a consensual encounter. Lastly, even if this
Court disagrees and finds something more than a consensual encounter occurred, the
Government alleges the rangers had the required level of suspicion.
I. 	Encounters between law enforcement and the public
Several different encounters between law enforcement and the public implicate the
Fourth Amendment. Arrest is the most intrusive and is only reasonable if supported by
probable cause. United States v. Davis, 94 F.3d 1465, 1468 (10th Cir.1996). The next level
of contact is that of the investigatory detention which may result from a reasonable
suspicion that the detained individual is engaged in criminal activity. Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 1871 (1968). The lowest level of contact is a consensual one. A
consensual encounter is the voluntary cooperation of a private citizen in response to non-
coercive questioning by a law enforcement officer. United States v. Hernandez, 93 F.3d
1493, 1498 (10th Cir.1996).
Another recognized encounter between law enforcement and the public is a non-
investigatory encounter pursuant to law enforcement’s community caretaking functions.
Police officers are permitted to exercise what the Supreme Court has termed “community
caretaking functions, totally divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute.” United States v. Zimmerman, 116
F. Supp. 3d 1280, 1285 (D. Wyo. 2015) (quoting Cady v. Dombrowski, 413 U.S. 433, 441,
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93 S.Ct. 2523, 2527 (1973)). In the course of exercising this non-investigatory function, a
police officer may have occasion to seize a person, as the Supreme Court has defined the
term for Fourth Amendment purposes, in order to ensure the safety of the public and/or the
individual. Id. Whether the seizure of a person by a police officer acting in his or her non-
investigatory capacity is reasonable depends on whether it is based on specific articulable
facts and requires a reviewing court to balance the governmental interest in the police
officer's exercise of his or her “community caretaking function” and the individual's
interest in being free from arbitrary government interference. Id.
II. 	The encounter was multifaceted and began as a non-investigatory encounter
The interaction between the Defendant and the rangers began as a non-investigatory
encounter pursuant to the rangers’ community caretaking function. On June 12, 2020,
during a truly unprecedented time, the Yellowstone National Park Reopening Plan was in
full effect. Said plan had banned all camping within the park, including permits for
backcountry camping. Defendant’s car was seen alone within a trailhead parking lot at
approximately 10:34 p.m. during this period. Further, as the Government mentioned it its
brief, 	lost 	and/or 	injured 	hikers 	are 	unfortunately 	a 	common 	occurrence 	here 	in
Yellowstone. The Court has serious doubts as to how one could expect a Park Ranger, or
any park employee for that matter, to not be concerned and suspicious under similar
circumstances. Importantly, the Supreme Court has not just permitted law enforcement to
act pursuant to their community care taking functions, but rather expects them to.
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Zimmerman, 116 F. Supp. 3d at 1286. As such, Park Rangers Zavalea and Bravo justifiably
initiated their encounter with Defendant under an authority they were expected to exercise.
Although the rangers were legally exercising their powers when initiating the encounter
with Defendant, it would be remiss of the Court not to assume the rangers also had a
“hunch” that Defendant could be illegally camping. That “hunch”, however, cannot be
allowed to negate the community care taking functions of the rangers. “Search or seizure
undertaken pursuant to the community caretaking exception is not infirm merely because
it may also have been motivated by a desire to investigate crime.” United States v. Coccia,
446 F.3d 233, 240-41 (1st Cir. 2006). In that this Court finds that the contact by the rangers
was justified in pursuance to their caretaking function, the Court will not review whether
the rangers also had a reasonable suspicion that the Defendant was engaged in illegal
conduct of camping in an undesignated area prior to their initial contact with Defendant.
III. 	Activation of emergency lights
Central to Defendant’s argument is the proposition that the rangers seized Defendant,
for Fourth Amendment purposes, the moment they activated their emergency lights.
Defendant argues that the rangers asserted their authority when they activated their
emergency lights, he submitted to that assertion by “stopping dead in his tracks”, and a
reasonable person would not feel free to leave under the totality of the circumstances. To
support his contention, Defendant cites to cases and a treatise suggesting that the use of
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police car emergency lights as a show of authority will convert an encounter to that of a
Fourth Amendment seizure. 1 Admittedly, the argument is intriguing.
As was correctly discussed in Defendant’s briefing, in the Tenth Circuit when an officer
does not apply physical force to restrain a suspect, a Fourth Amendment seizure can only
occur if 1) the officer asserts her authority and 2) the suspect submits to that assertion.
United States v. Salazar, 609 F.3d 1059, 1064 (10 th Cir. 2010). However, the Salazar court
also pointed out that, “the test for existence of a ‘show of authority’ is an objective one:
not whether the citizen perceived that he was being ordered to restrict his movement, but
whether the officer's words and actions would have conveyed that to a reasonable person…
[and] [t]he question of whether the suspect submitted to that authority is also an objective
one.” Id. at 1064. Additionally, courts must examine the “totality of the circumstances-the
whole picture” when deciding whether conduct constitutes submission to authority. Id.
1 Most of Defendant’s citations stem from United States v. Silcott, 377 F. Supp. 3d 1272, 1277 (D. Kan.
2019), which the Court presumes is where he found this passage:
“Thus, ‘[w]hen an officer does not apply physical force to restrain a subject, a Fourth
Amendment seizure occurs only if (a) the officer shows his authority; and (b) the citizen
‘submit[s] to the assertion of authority.’’ United States v. Salazar, 609 F.3d 1059, 1064
(10th Cir. 2010) (citing Hodari D., 499 U.S. at 626, 111 S.Ct. 1547)). The use of police
car emergency flashing lights to make a traffic stop, as was done here, can constitute a
show of authority. See Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d
132 (2007) (all occupants of a car were seized by officer's ‘successful display of authority’
in using flashing lights to make traffic stop). See also Gaines, 918 F.3d at 796-97 n.4
(citing 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment §
9.4(a), at 598–99 (5th ed. 2012) (stating that the ‘use of flashing lights as a show of
authority ... will likely convert the event into a Fourth Amendment seizure’)).
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The case at hand, though, differs from those cited by Defendant. In Salazar, the trooper
activated his emergency lights to command the driver to stop his vehicle. The command to
stop came after the officer observed the defendant acting suspiciously late at night in a
parking lot. Admittedly, in Salazar the Government and the defendant both agreed the
officer’s use of emergency lights constituted a “show of force” and the case turned instead
on whether the defendant submitted to that force. However, that does not change the subtle
fact that the defendant in Salazar was in a moving car and suspected of criminal activity.
As cited in Salazar, the appellant stated “[t]he activation of a patrol car's emergency lights
is a well-accepted 'show of authority' commanding the driver to stop his vehicle and submit
to an investigative detention”. Id. at 1066 (emphasis added). The court also cited to Brower
v. County of Inyo, 489 U.S. 593, 598 (1989), stating that "a police car pursuing with
flashing lights" is "a significant show of authority". Id. (emphasis added).
Similarly, in Silcott the officer activated his emergency lights to command the driver to
stop his vehicle. That command came after the officer suspected the driver of being
involved in a burglary. With respect to emergency lights, the court said,
“The court finds that a reasonable person in Defendant's position would not
have felt free to leave or to disregard the officer's flashing lights. The officer
thus made a show of authority. The remaining disputed question is whether
Defendant submitted to the show of authority such that a seizure occurred.”
Silcott, 377 F. Supp. 3d at 1277.
In Silcott there was nothing dispositive about the activation of emergency lights.
Rather, the court considered the activation of emergency lights in its analysis of “a
reasonable person in Defendant’s position.” Again, this is a case where the
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defendant was in a moving car and suspected of criminal activity. The officer in this
instance activated his emergency lights in an effort to pull the defendant over. Id. at
1275. Like the above cases, the Silcott court found no difficulty in finding an
activation of emergency lights was an assertion of authority during a traffic stop.
Brendlin too stems from an officer using his emergency lights to command a car to
stop. Brendlin, 551 U.S. at 249 (2007). The Brendlin court ultimately held when the police
made a traffic stop, the passenger in the car was seized alongside the driver. The case relied
on a well-established rule that traffic stops equate to seizures under the Fourth Amendment,
which is not at issue today.
The Gaines case is admittedly much more on point. In that instance, the Defendant was
sitting in his car, parked in a parking lot, when two uniformed police officers arrived in
marked police cars, both flashing their emergency lights. United States v. Gaines, 918 F.3d
793, 796 (10th Cir. 2019). In determining whether a seizure occurred at that moment, the
Gaines court said, “[w]ould a reasonable person have felt free to leave? Perhaps. But the
flashing 	roof 	lights, two 	marked 	police 	cars, 	and 	two 	uniformed 	officers 	would
undoubtedly have cast at least some doubt on a reasonable person’s belief in his or her
freedom to leave.” The officers claimed to have turned on their emergency lights because
they were blocking traffic. However, as the Gaines court correctly pointed out, the officers'
subjective intent has little bearing on whether a reasonable person would have thought that
he or she could leave. Id.
Next, one of the officers quickly exited his cruiser and gestured for the defendant to
exit his vehicle. At this point, the court seriously doubted that a reasonable person would
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have believed they could drive away. Id. at 798. Still, the court decided to assume that at
this point a reasonable person would feel free to leave. Finally, one police officer stood just
a few feet away and said that they had come because of a report that the defendant was
selling drugs. Id. The police officer then asked the defendant whether he had in fact been
selling drugs. Id. Meanwhile, another uniformed police officer circled the car, looking
inside. Id. Eventually the defendant fled, leaving the government to argue that he never
yielded to a show of authority, regardless of when that show happened. Id. at 799. The
court disagreed. Instead, while looking at the totality of the circumstances, the court
decided the defendant yielded to the show of authority when he complied with the gesture
to get out of his car and when he answered questions that were asked of him. Id.
The Court has no problem distinguishing Salazar, Silcott, and Brendlin from the
case before it. All those cases apply to traffic stops, or at least moving vehicles, in relation
to the use of emergency lights. Those facts are simply not applicable to this matter. The
Gaines case, though, is not so easily distinguished. Like Gaines, Defendant was inside of
his car, in a parking lot, and had two uniformed police officers arrive in a marked police
car, flashing their emergency lights. However, that is about all the two cases have in
common. In Gaines, the officers approached the defendant and engaged their lights due to
a tip that he had been selling drugs. Here, the officers had no such suspicion. In Gaines,
the officers gestured to defendant to get out of his car and immediately began asking him
questions of alleged drug dealing. Here, Defendant exited his vehicle without command
and the rangers initially asked question far less intrusive or abrupt. The Gaines court said,
when discussing the questioning from the officers, “… the accusatory question would have
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added to the reasonable person’s doubt about his or her freedom to return to the car and
drive away.” Id. at 798. In this matter, questions adding such a doubt to the reasonable
person were not presented to Defendant until he was asked about how much marijuana he
had.
The totality of circumstances in the case before the Court differs dramatically from that
in Gaines. The case before the Court does not concern a car, in broad daylight, parked in
Kansas City. It does not involved officers pulling up, blocking traffic, turning on their
emergency lights, and demanding action of the car’s occupant. It also does not involve an
officer immediately questioning the individual about alleged drug dealing. Instead, here
the Defendant’s car, at approximately 10:34 p.m., was turned off and parked at a trail head
in Yellowstone during a time when no camping was allowed. The rangers activated their
emergency lights not to investigate expected criminal behavior, but pursuant to their
community caretaking functions and to identify themselves as law enforcement officers.
The ranger did not jump to accusatory questions, but instead asked Defendant how he was
doing and what he was up to.
The Court finds cases cited by Defendant to be unpersuasive. Therefore, with respect
to the circumstances in this case, the activation of the ranger’s emergency lights was not a
show of authority for Fourth Amendment purposes.
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IV. 	Defendant was seized by the Rangers when they began questioning him about
marijuana
There is no question a seizure took place on the night at issue. Instead, the inquiry is
when did that seizure take place and was it justified by reasonable suspicion. As has already
been explained, when an officer does not apply physical force to restrain a suspect, a Fourth
Amendment seizure can only occur if 1) the officer asserts her authority and 2) the suspect
submits to that assertion. Salazar, 609 F.3d at 1064.
First, we must start with when a show of authority took place. “The test for existence
of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was
being ordered to restrict his movement, but whether the officer's words and actions would
have conveyed that to a reasonable person.” Id. So, when during this encounter would a
reasonable person, due to the rangers’ actions, perceive he was not free to leave?
After engaging their emergency lights, it took the rangers approximately eleven seconds
to exit their cruiser and begin talking with Defendant. During this time, Defendant had
exited his vehicle and was standing next to it with his driver door open. Ranger Bravo
asked Defendant how he was doing and what he was up to that night. In fact, Ranger Bravo
even gave the Defendant some advice by telling Defendant that all camping within the park
was prohibited. A reasonable person, up to this point in the encounter, would still feel free
to leave. Defendant felt free to exit his vehicle, he engaged in an informal conversation
discussing his plans that night, and admitted he didn’t know that camping was currently
illegal in the park.
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Eventually, Ranger Bravo asked Defendant for identification. Being asked to show
identification requires a defendant to act, but according to our Supreme Court it does not
rise to the level of a seizure. Florida v. Bostick, 501 U.S. 429, 435, 111 S. Ct. 2382, 2386
(1991). However, while looking at Defendant’s identification, Ranger Bravo began to ask
Defendant how much marijuana he had. With respect to this case, when Defendant was
faced with an accusation of illegal conduct by the ranger, an assertion of authority was
made. That is, the ranger’s words and actions would have conveyed to a reasonable person
at that point in the encounter that they were not free to leave.
Next, the Court must decide when Defendant submitted to that authority. The question
of whether the suspect submitted to a show of authority is also an objective one. Id. at 1064.
Additionally, courts must examine the “totality of the circumstances-the whole picture”
when deciding whether conduct constitutes submission. Id. It is the Court’s belief that
Defendant submitted to the rangers’ authority immediately upon being asked how much
marijuana he had. Without hesitation Defendant answered the question, admitting to a law
enforcement officer he was engaged in illegal activity. Once Defendant admitted to the
rangers he had illegal substances with him, a Fourth Amendment seizure had been
completed.
V. 	Reasonable 	suspicion 	arose 	moments 	into 	the 	non-investigatory 	encounter
between Defendant and the rangers
Although 	the 	encounter 	between 	Defendant 	and 	the 	rangers 	started 	as 	non-
investigatory, it took all but moments for reasonable suspicion to arise justifying the
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rangers’ investigatory detention of Defendant. An evaluation of an investigatory detention,
which is often referred to as a Terry detention, is a seizure pursuant to the Fourth
Amendment and must satisfy a two-prong analysis. The first inquiry is if the officer's
actions were justified at the inception of the detention. The officer must have an articulable
and reasonable suspicion that the person detained is engaged in criminal activity. The
second 	inquiry 	is 	if 	the 	officer's 	detention 	is 	reasonably 	related 	in 	scope 	to 	the
circumstances which justified the interference in the first place. Zimmerman, 116 F. Supp.
3d at 1287 (quoting Terry v. Ohio, 392 U.S. 1 (1968)).
First, were the rangers’ actions justified at the inception of the detention by articulable
and reasonable suspicion that Defendant engaged in criminal activity? Soon after the
rangers and Defendant began talking it became clear Defendant was safe and uninjured,
therefore rendering the rangers’ community caretaking function complete. However,
during the greeting and before the rangers could reach that conclusion, the rangers
discovered Defendant was wearing a headlamp, his car had bedding spread over the back
seat and trunk, a sunshade was covering the front windshield, and they could smell the odor
of raw marijuana. All of which raised or further supported an articulable and reasonable
suspicion that Defendant was engaged in criminal activity, if not reaching the level of
probable cause.
Second, was Defendant’s detention reasonably related in scope to the circumstances
which justified the interference in the first place? The suspicion arising from the first few
moments of the encounter explain why Ranger Bravo’s questions shifted from ensuring
Defendant’s safety to investigating potential criminal activity by asking “so, you’re not
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planning on sleeping here at all?” and “so, how much marijuana do you have in the
vehicle?”. Ultimately, Defendant was detained to investigate the criminal activity of
possession of marijuana and illegal camping, both of which were the very criminal
activities that the rangers had reasonable suspicion of.
VI. 	CONCLUSION
The Court finds that the encounter between Defendant and the rangers started as a
non-investigatory exercise of the rangers’ community caretaking authority. Moments into
the encounter 1) it became clear that Defendant was safe and 2) reasonable suspicion of
illegal camping and possession of a control substance arose. Then, with the required level
of suspicion, the rangers detained Defendant to further investigate. That investigation
lead to the finding of marijuana in the Defendant’s possession and evidence of illegal
camping. As such, the Court concludes the evidence should not be suppressed.
IT IS HEREBY ORDERED that Defendant’s Motion to Suppress is DENIED.
Dated this 30th day of November, 2020.
MARK L. CARMAN
UNITED STATES MAGISTRATE JUDGE
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