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United States v. Harris

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

October 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID LEE HARRIS, JR. Defendant.

          REPORT AND RECOMMENDATION

          WILLIE J. EPPS, JR. United States Magistrate Judge

         Pending before the Court is Defendant David Lee Harris Jr.'s motion to suppress evidence and suggestions in support thereof. (Doc. No. 20). Mr. Harris alleges suppression is warranted for the following reasons: (1) the officer extended the traffic stop beyond constitutionally permissible limits; (2) the officer's search of the vehicle could not be justified as a search incident to the arrest of Mr. Harris; (3) the officer's search of the vehicle could not be justified by consent because consent was refused; (4) the officer's discovery of the empty holster, which led to a further search that found a pistol, cannot be justified based on the “plain view” doctrine; and (5) the officer's search of the vehicle could not be justified by the existence of probable cause. (Doc. No. 20). The Government has filed suggestions in opposition conceding that the following legal doctrines are inapplicable in this case: (2) the doctrine of search incident to arrest; (3) the consent exception; and (4) the “plain view” doctrine. (Doc. No. 24 at 6). Mr. Harris filed a reply on the remaining two issues: (1) whether Officer Overton extended the traffic stop beyond constitutionally permissible limits; and (5) whether Officer Overton had sufficient probable cause to search the vehicle pursuant to the “automobile exception.” (Doc. No. 30). The Court held an evidentiary hearing regarding Mr. Harris' pending motion to suppress on September 19, 2017.

         Factual Background

         On September 21, 2016, at approximately 3:36 a.m., David Lee Harris Jr. was driving a white Nissan Maxima northbound on Highway 63 at Clark Lane in Columbia, Missouri. Columbia, Missouri Police Officer Bradley Overton initiated a traffic stop on the Nissan for having no front license plate and suspicion of having windows with a tint darker than the thirty-five percent legal limit. The Nissan was displaying a dealer plate on the rear of the vehicle. (¶ 1, Officer's Narrative). The vehicle had three additional occupants: Kayla Glasgow, the vehicle owner, was seated in the front passenger seat; Sherwin Mahaney was seated directly behind Ms. Glasgow; and Kathleen Gilmore was seated directly behind the driver's seat. Both Mr. Mahaney and Ms. Glasgow refused to identify themselves to Officer Overton or other officers on the scene during the entire duration of the traffic stop.

         Officer Overton walked around the back of his patrol car and approached the vehicle from the passenger side rear. Officer Overton requested that the passenger roll the right rear window all the way down so that he could see inside the vehicle. (Bodycam Video at 08:37.43). According to Officer Overton's narrative, the rear passenger, later identified as Mr. Mahaney, was moving around and “fidgeting.” (Suppression Hearing Transcript “Tr.” at 12). Mr. Mahaney refused to identify himself during the duration of the stop and was later identified by a prison identification card as Sherwin Mahaney. (Tr. at 26).

         Officer Overton then began to speak directly with Ms. Glasgow who provided her identification and indicated that she was the owner of the vehicle. (Bodycam Video at 08:38.10). Officer Overton noted that Ms. Glasgow seemed extremely nervous and overly friendly when she was looking for her identification and insurance. (Tr. at 18). Officer Overton then engaged Mr. Harris about having a valid driver's license. (Bodycam Video at 08:38.57). When questioned about why Ms. Glasgow was not driving, Mr. Harris said, “we went out to get something to eat real quick and we're headed back home.” (Bodycam Video at 08:39.10). Mr. Harris then provided Officer Overton with his full name and date of birth. (Bodycam Video at 08:39.25).

         Officer Overton then inquired about the physical condition of the rear passenger later identified as Ms. Gilmore, asking, “[i]s she okay over there?” (Bodycam Video at 08:39.34). Officer Overton testified that Ms. Gilmore appeared to be asleep for most of the traffic stop and that it was unusual behavior. (Tr. at 17). Ms. Gilmore refused to provide any identification for the duration of the stop. (Tr. at 26). When Officer Overton asked if Ms. Glasgow knew the back female passenger's name, she said, “I know her as ‘K'” as Officer Overton walked away from the vehicle. (Bodycam Video 08:41.22).

         Officer Overton used his radio to request backup and returned to his patrol vehicle to run a records check on Mr. Harris and Ms. Glasgow. (Bodycam Video at 08:41.34-43). While waiting for backup, Officer Overton was informed that Mr. Harris had a suspended license, a parole violation warrant for failure to register as a sex offender, and a history of prior offenses involving firearms. (Bodycam Video at 08:45.15). Ms. Glasgow was identified as having prior offenses involving the possession of heroin. (Bodycam Video at 08:45.35).

         Once backup arrived, Officer Overton placed Mr. Harris into custody for driving while revoked and having an outstanding warrant. (Bodycam Video at 09:49.52). Mr. Harris was placed into Officer Overton's patrol car. (Bodycam Video at 08:50.40). Officer Overton believed Mr. Mahaney was refusing to identify himself because he had a warrant. (Bodycam Video at 08:51.06). After securing Mr. Harris, Officer Overton then asked Mr. Mahaney to step from the vehicle and requested permission to search him. (Bodycam Video at 08:51.43). Officer Overton testified that as Mr. Mahaney exited the vehicle, he identified a green leafy substance on the floor as marijuana “shake, ” which are little pieces of marijuana that fall off during the handling and using of marijuana, particularly when rolling blunts. (Tr. at 21). Officer Overton did not collect any of the “shake” marijuana. (Tr. at 42).

         When Officer Overton returned to close the door, he briefly shined his flashlight on Ms. Gilmore and the rear floorboard. (Bodycam Video at 08:52.27). Officer Overton again asked about the rear female passenger, and Ms. Glasgow said that he should wake her up and that “she might be on something.” (Bodycam Video at 08:52.34). Ms. Glasgow was asked by Officer Overton to step from the vehicle and walk towards the rear of his patrol vehicle, toward Officer Overton's backup. (Bodycam Video at 08:52.47).

         Officer Overton then returned to the right rear door of the vehicle, flashed his flashlight on the floorboard, and began examining a blue drawstring bag. (Bodycam Video at 08:53.22). Officer Overton then attempted to wake Ms. Gilmore via verbal commands. (Bodycam Video at 08:53.35). Ms. Gilmore, sounding groggy, told Officer Overton that she had “a really bad headache and did not realize that they were pulled over, ” and that she gets “really bad migraines.” (Bodycam Video at 08:54.17). Ms. Gilmore refused to provide her name or identification. (Bodycam Video at 08:54.21). Ms. Gilmore was asked to step from the vehicle and she complied. She indicated that there was a knife on the backseat near where she was sitting. (Bodycam Video at 08:55.10). Officer Overton identified and inspected the knife before placing it back on the rear passenger seat. Officer Overton also picked up and smelled a cigarette on the seat. (Bodycam Video at 08:59.23-52).

         Officer Overton returned to his patrol vehicle where he questioned Mr. Harris about the vehicle's unidentified rear passengers. Mr. Harris said, “I know him as ‘Matt' […] that is his girlfriend; she was with him when we picked them up.” (Bodycam Video at 08:56.30-50). Officer Overton asked a colleague to “grab the VIN before I let them go.” (Bodycam Video at 08:57.27). Mr. Harris was then questioned by Officer Overton about the presence of drugs in the vehicle and the bags in the backseat. (Bodycam Video at 08:59.45).

         The other officers on the scene and Officer Overton had a conversation about the two passengers who refused to identify themselves. (Bodycam Video at 09:02.54). Officer Overton exited his patrol car and went to speak with Ms. Glasgow at the rear of the vehicle. (Bodycam Video at 09:06.40). Ms. Glasgow was questioned about the packages in the backseat. (Bodycam Video at 09:07.15). Ms. Glasgow told Officer Overton that they had their bags because they were taking them to the bus station. (Bodycam Video at 09:08.02). Officer Overton questioned Ms. Glasgow's truthfulness about not knowing the rear passengers because she “picked them up” (Bodycam Video at 09:08.10). Ms. Glasgow then said, “I just got picked up and he took us to get food.” (Bodycam Video at 09:08.17). When questioned again about the identity of the rear passenger, Ms. Glasgow said she knows her only as “K.” (Bodycam Video at 09:08.43). Ms. Glasgow asked if she could leave, and Officer Overton replied, “yup, just a second.” (Bodycam Video at 09:09.24). Without requesting permission, Officer Overton then walked over to the vehicle and began searching in the front driver's seat area of the vehicle and discovered a holster and ammunition. (Bodycam video at 09:09.55).

         Officer Overton returned to his patrol vehicle and had Mr. Mahaney placed in handcuffs and detained. Officer Overton proceeded to question Ms. Glasgow about the presence of the holster and ammunition. Ms. Glasgow says that she was “picked up from her house to go get food.” (Bodycam Video at 09:11.09). Officer Overton returned to the vehicle and conducted a further search of the car, and found loose 9mm rounds of ammunition and a box of 9mm rounds in the center console. Officer Overton also located a box of 9mm rounds in the backseat in a black camera-like case. (Bodycam Video at 09:15.58). Officer Overton's search of a green pouch in the vehicle revealed three pipes with burnt marijuana smell coming from them and two plastic baggies with residue that ...


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