Federal judge says Topeka police officer violated Fourth Amendment in frisk that found gun

A federal judge won't let prosecutors use evidence of a crime because a Topeka police officer violated the defendant's constitutional rights when obtaining that evidence.

U.S. District Judge Toby Crouse on June 26 granted a motion to suppress the gun that Tevin Nance possessed during an unconstitutional search.

"He was frisked without reasonable suspicion that he was armed and dangerous, in violation of the Fourth Amendment," Crouse wrote.

Driver was pulled over for failure to signal a turn in Topeka

Nance was indicted by a grand jury in U.S. District Court in Topeka in February with one count of possession of a firearm by a prohibited person. Nance was prohibited from having the gun — a Canik 9 mm pistol — because of prior drug convictions in Shawnee County.

If he were convicted, the penalty would have been a maximum of 15 years in prison and a fine of up to $250,000.

It is unclear if assistant U.S. attorney Skipper Jacobs will continue the prosecution after federal public defender Thomas Bartee's successful motion to suppress. No additional filings had been made as of Thursday afternoon. A status conference in the case is scheduled for July 24.

Nance was a passenger in a car that was pulled over for failure to signal a turn by Topeka police officers Morgan Swisher and Ashlee Schulz on Nov. 27 near the intersection of S.W. Polk and 14th streets. Several minutes into the stop, the officers arrested the driver on an outstanding misdemeanor warrant.

Swisher then had Nance step out of the car and frisked him, which she said was because she could smell marijuana. She found the gun in the waist of his pants. She then proceeded to search the car and found two small pieces of marijuana inside a cigarette pack.

In her arrest report, Swisher wrote that she patted him down for a weapon "based upon his behavior, and for officer safety purposes." She said Nance had displayed multiple "pre-attack indicators, as his hands were actively shaking, he would not make eye contact with officer's, he was blading his body away from officer’s, and he would not directly answer officer’s questions, and instead would mumble and turn away."

Judge wasn't convinced 'pre-attack indicators' justified frisk

Crouse was unconvinced that such behavior was enough reason for Swisher to think that Nance was armed and dangerous.

He said it was innocuous for Nance to shift around in his seat during a traffic stop that lasted more than 10 minutes, and that lack of eye contact and mumbling have more meanings than being armed. He also said that the alleged shaking hands and other signs of possible nervousness were not unusually extreme for a police stop, and "reflected at most ordinary nervousness."

"Swisher had at most a hunch that Nance was armed — one that turned out to be correct, certainly, but not one that justified her search," Crouse wrote.

He also said prosecutors, in pointing to actions by officers at the scene to protect themselves, had decided to "look at the officers' behavior, backfill reasons for that behavior, then infer that the officers must have had unarticulated reasons to suspect that Nance was dangerous."

Crouse said Swisher testified in a hearing that Nance raised his harms "unusually" high when getting out of the car. But that couldn't be used to justify the frisk, because she had already decided to frisk Nance before he got out of the car, and because "Nance's decision to exit the vehicle with his hands raised would not make a reasonable officer suspect that he was armed and dangerous."

"Swisher simply made a mistake by frisking an individual without sufficient cause," Crouse wrote.

Jason Alatidd is a Statehouse reporter for The Topeka Capital-Journal. He can be reached by email at jalatidd@gannett.com. Follow him on X @Jason_Alatidd.