{"id":6322,"date":"2011-11-27T08:04:12","date_gmt":"2011-11-28T00:13:24","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-11-27T08:04:12","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6322","title":{"rendered":"D.Kan.: While stop was invalid, passenger did not show nexus to finding drugs and his stop"},"content":{"rendered":"

Defendant\u2019s request to certify interpretation of the state following too close statute to the state supreme court is denied; the federal courts have already well interpreted it. Based on the officer\u2019s testimony, following too close did not justify the stop here. However, defendant did not show standing to challenge the search of the car, as opposed to the stop, or a factual nexus to his<\/em> stop and the finding of the drugs. United States v. Ibarra, 2011 U.S. Dist. LEXIS 135514 (D. Kan. November 23, 2011)*:<\/p>\n

The only way defendant may challenge the search, therefore, is to use a derivative evidence theory\u2014to argue that but for his unlawful detention, the officer would not have found the drugs. United States v. DeLuca, 269 F.3d 1128, 1135 (10th Cir. 2001). In the Tenth Circuit, there must be a \u201ccausal link between the violation and the contraband.\u201d Id. at 1134-35. If the evidence ultimately found in the vehicle is the fruit of the defendant’s illegal detention, then the defendant will have standing to seek suppression. United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000). To prevail under this theory, however, the defendant bears a two-pronged burden. He must not only show that his original detention violated the Fourth Amendment, but also that there was a \u201cfactual nexus between the illegality and the challenged evidence.\u201d Id. at 1131. If the defendant can show that the evidence would not have been found but for his\u2014and only his\u2014detention, then the burden shifts to the government to show that the evidence is not the fruit of the poisonous tree. DeLuca, 269 F.3d at 1133. Although this framework has been criticized, see, e.g., United States v. Mosley, 454 F.3d 249 (3d Cir. 2006), the Tenth Circuit has recognized that courts are bound by precedent to follow it, see United States v. Ladeaux, 454 F.3d 1107, 1111 n.4 (10th Cir. 2006).<\/p>\n

Under prevailing Tenth Circuit law, defendant has not met his burden and demonstrated the factual nexus required for suppressing the drugs found in the car. Defendant has provided no evidence of a factual nexus between the violation of his rights and the challenged evidence. As previously mentioned, defendant must show that the evidence would not have been found but for his own unlawful detention. This can be done by showing that had defendant departed the scene, he would have been allowed to leave in the vehicle. See Nava-Ramirez, 210 F.3d at 1131 (\u201cAt the suppression hearing, Nava-Ramirez put on no evidence to demonstrate that had he, at some point after the passenger compartment search was completed but before the trunk search began, requested permission or otherwise attempted to depart the scene, he would have been able to leave in Wald’s car. In the absence of some supportive proof, this court cannot simply speculate that Wald would have given Nava\u2014Ramirez permission to take his car.\u201d). Defendant presented no such evidence. There is no evidence before the court that he had possessory control over the vehicle or that he would have otherwise been allowed to leave the scene in the vehicle. And there is no evidence that the drugs were found as a result of defendant’s detention. The drugs were found because Ms. Rendon-DeMartinez\u2014the person with the owner’s permission to possess the vehicle\u2014consented to a search of the vehicle. Defendant has not established a factual nexus between his detention and the discovery of the drugs, and the court denies his motion to suppress.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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