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United States v. Pulido-Ayala

United States District Court, W.D. Missouri, Western Division

June 22, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JAVIER PULIDO-AYALA, Defendant.

          Javier Pulido-Ayala, Defendant, represented by Anita L. Burns, Federal Public Defender's Office.

          Francisco Javier Sandoval-Herrera, Defendant, represented by F.A. White, Jr..

          USA, Plaintiff, represented by Brent Venneman, United States Attorney's Office.

          REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION TO SUPPRESS

          ROBERT E. LARSEN, Magistrate Judge.

         Before the court is Defendant's Motion to Suppress Evidence. Defendant moves the Court to suppress all evidence obtained from the October 8, 2015, traffic stop and all statements he made during the stop on grounds of Fourth Amendment violations. For the following reasons, Defendant's motion should be denied.

          I. BACKGROUND

         An indictment was returned on November 4, 2015, charging Defendant with one count of aiding and abetting possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On January 6, 2016, Defendant filed a motion to suppress (Doc. No. 25). The government responded on January 13, 2016 (Doc. No. 29). An evidentiary hearing was held on April 20, 2016. The government appeared by Assistant United States Attorney Brent Venneman. Defendant was present, represented by appointed counsel Anita Burns. The government called the following witnesses: Missouri Highway Patrol Sergeant Robert Brooks McGinnis; Lafayette County Sheriff's Department Detective Donald K. Hammond; and Missouri Highway Patrol Trooper Dan Schubert. Defendant called Commercial Vehicle Inspector Brian Sanders to testify. The following exhibits were admitted into evidence:

Government's Exhibit 1: Photograph of checkpoint signs;
Government's Exhibit 2: Map of I-70 at Route T;
Government's Exhibit 3: Dash cam video;
Government's Exhibit 4: 2014 canine certification;
Government's Exhibit 5: 2015 canine certification; and
Defendant's Exhibit 3: Trooper Schubert's electronic incident report.

II. EVIDENCE

         On the basis of the evidence presented at the suppression hearing, I submit the following findings of fact.

         1. On October 8, 2015, the Missouri Highway Patrol and Lafayette County Drug Task Force set up a ruse checkpoint on I-70 (Tr. at 4-5, 69). A ruse checkpoint is designed to identify persons who may be transporting drugs (Tr. at 5, 69). As part of the operation, law enforcement set up four road signs along the interstate (Tr. at 6). Two of the signs read, "DRUG CHECKPOINT ¼ MILE AHEAD"; the other two read, "K-9 IN USE PERRO DE DROGA" (Tr. at 6, 8; Gvt. Exh. 1).

         2. The two signs that read "DRUG CHECKPOINT ¼ MILE AHEAD" were placed four or five seconds ahead of the exit ramp off of the interstate onto T Highway, one in the median and the other on the shoulder (Tr. at 6, 9-10). The two signs referencing a drug dog were placed at the beginning of the exit ramp (Tr. at 6-7, 9-10).

         3. These signs were set up to be seen by vehicles traveling east on I-70 (Tr. at 7). Law enforcement chose this exit because there were no amenities for which drivers may be exiting (Tr. at 6).

         4. Lafayette County Sheriff's Department Detective Donald Hammond's assignment in the operation was to monitor the interstate, exit ramps and roadways that cross over the interstate (Tr. at 6). He was positioned at T Highway, just south of I-70, were he could observe eastbound traffic (Tr. at 7). Detective Hammond was approximately 400 feet from the stop sign at the top of the exit ramp, and ...


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