United States District Court, W.D. Missouri, Western Division
REPORT AND RECOMMENDATION
SARAH W. HAYS, Magistrate Judge.
This matter is currently before the Court on defendant's Motion to Suppress Illegally Obtained Evidence and Statements (doc #22). For the reasons set forth below, it is recommended that the motion be denied.
On December 9, 2014, a criminal complaint was filed charging defendant Jordan C. Davis with being a felon in possession of a firearm.
On December 17, 2014, the Grand Jury returned an eight-count indictment against defendant Davis. Counts Five, Six, Seven and Eight of the indictment charge that on September 11, 2013, defendant possessed with intent to distribute methamphetamine and marijuana, carried a.45 caliber Remington pistol in furtherance of these drug trafficking crimes and was a felon and drug user in possession of a firearm and ammunition. Count Four charges that on December 30, 2013, defendant possessed with intent to distribute methamphetamine. Counts One, Two and Three charge that on December 8, 2014, defendant possessed with intent to distribute methamphetamine, carried a.25 caliber Titan pistol in furtherance of this drug trafficking crime and was a felon and drug user in possession of a firearm.
An evidentiary hearing on the motion to suppress was held on April 17, 2015. Defendant Davis was represented by Assistant Federal Public Defender Anita L. Burns. The Government was represented by Assistant United States Attorney Rudolph R. Rhodes, IV. The Government called Officer Jason Harris of the Independence, Missouri Police Department, and Officer Terrence Brown and Detective Troy Schwalm of the Kansas City, Missouri Police Department as witnesses. The defense called no witnesses to testify.
II. FINDINGS OF FACT
On the basis of the evidence presented at the evidentiary hearing, the undersigned submits the following proposed findings of fact:
1. On September 11, 2013, at approximately 8:09 p.m., Officers Jason Harris and Jeremie Stauch were patrolling the area of Stark and Smart in Independence, Missouri. (Tr. at 4) Officer Harris testified that he was assigned to the Independence, Missouri Police Department SWAT team. (Tr. at 3-4) Officer Harris' duties with the SWAT team included serving high-risk search warrants, proactive patrolling, executing arrest warrants and looking for suspects. (Tr. at 4) Officer Harris testified that the area he and Officer Stauch were patrolling is a high-crime area for burglaries, narcotics sales, stolen autos, etc. (Tr. at 4) On August 23, 2013, Officer Harris had assisted in recovering a stolen automobile which was parked in front of 8721 Smart. (Tr. at 5) Inside that stolen automobile, officers had found a party with drugs. (Tr. at 5) Officers Harris and Stauch also had information that drugs were being sold out of two residences on Smart, 8721 and 8725, so the officers decided to go to that area. (Tr. at 5)
2. While driving in that area, the officers observed a vehicle parked at 8721 Smart. (Tr. at 5) It was occupied by two white females in the front seat and a white male in the back seat. (Tr. at 5) The officers decided to go back and check on the vehicle and its occupants. (Tr. at 6) The officers intended to contact the occupants in the vehicle and ask what they were doing parked in that area. (Tr. at 21) The officers did a U-turn and observed the brake lights on the vehicle come on and the male (Jordan Davis) exit the driver's side rear passenger seat. (Tr. at 6) Officer Harris testified that he observed Davis walking around the rear of the vehicle at a faster than normal pace, reach into his waistband, do a bend-down motion on the passenger side of the vehicle and then walk up to the passenger front window of the vehicle. (Tr. at 7-8, 23) Officer Harris testified that he thought Davis was possibly drawing a weapon and trying to conceal it or hide some other form of contraband. (Tr. at 8)
3. The officers activated their lights and the spotlight on the vehicle because they thought the male (defendant Davis) might run. (Tr. at 7) Officer Harris opened his door and began to draw his weapon because he believed that Davis was possibly armed. (Tr. at 8) Officer Harris commanded Davis to show his hands. (Tr. at 8) Officer Harris testified that Davis reached into his left front pocket, grabbed something that appeared to be a plastic bag and threw it inside the vehicle onto the female who was in the front passenger seat. (Tr. at 8) Officer Harris believed that Davis was trying to get rid of some form of contraband. (Tr. at 9) Davis was not obeying the command to show his hands, instead he kept his arms down at his sides. (Tr. at 9) Officer Harris went to detain Davis based on his observation of Davis placing something underneath the vehicle and then throwing a plastic bag inside the vehicle and because Officer Harris believed Davis was possibly armed. (Tr. at 9-10) Davis initially resisted Officer Harris' attempt to restrain him, but complied when placed in a wristlock and was put in handcuffs. (Tr. at 10)
4. Officer Harris frisked the male (defendant Davis) for weapons. (Tr. at 10) No weapon was found on Davis' person. (Tr. at 10) Officer Harris had Davis sit on the ground with his feet crossed. (Tr. at 10) Officer Harris then approached the front passenger side of the vehicle. (Tr. at 10) The female in the front passenger seat advised that the item Davis threw in the vehicle was still on her person. (Tr. at 10) The females in the vehicle had their hands up as they had been following the verbal commands of Officer Stauch. (Tr. at 11) Officer Harris observed a plastic bag that appeared to contain several smaller plastic bags containing a crystal-like substance on the female's right torso. (Tr. at 11) Officer Harris believed the crystal-like substance to be methamphetamine. (Tr. at 11) Officer Harris seized the plastic bag. (Tr. at 11)
5. Believing that drug trafficking was taking place, the officers placed all three individuals under arrest for possession of a controlled substance. (Tr. at 11-12) Officer Harris then performed a search incident to arrest of defendant Davis. (Tr. at 12) In Davis' left front pocket, Officer Harris found a wad of U.S. currency. (Tr. at 12) After both females had been taken into custody, Officer Stauch walked around the vehicle and observed a firearm underneath the front passenger door, the area where Davis had been observed bending down. (Tr. at 13)
6. Given that all the occupants of the vehicle were under arrest, the officers ordered a tow of the vehicle. (Tr. at 12) The Independence Police Abandoned Property and Police Towing Policy provides:
Police Towing of Vehicles from Public Property
Police towing of a vehicle from public property is authorized under the following conditions:
Section 304.155., RSMo allows any law enforcement officer's [sic] within their jurisdiction... to authorize a towing company to remove abandoned property to a place of safety as follows:
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4. Any abandoned property for which the person operating such property is arrested for an alleged offense for which the officer is required to take the person into custody and where such person is ...