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United States v. Sanders

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

November 15, 2017

LARRY L. SANDERS et. al., Defendants.



         Pursuant to 28 U.S.C. § 636(b), the above-styled criminal action was referred to the undersigned for preliminary review. Defendants Larry Sanders (“Sanders”) and Denia Richardson (“Richardson”) move to suppress any and all evidence or statements derived as a result of a stop on January 2, 2016, including: the warrantless frisk and search of Sanders; the warrantless seizure and search of the bag found in Sanders's pocket; the warrantless search of Sanders's vehicle, a black 1998 Chevy S10 truck; the warrantless search of Richardson's purse and seizure of any items located in her purse; and the seizures of any items located in the vehicle as fruits of the poisonous tree. (Doc. 42, 47 and 55.) The undersigned held a hearing on the suppression issues on June 21, 2017. (See Docs. 63 and 65.) Sanders was present with his attorney, Ian Lewis, and Richardson was present with her attorney Bob Lewis. The Government was represented by Special Assistant United States Attorney Jody Larison. (Id.) During the hearing, the Court heard testimony from Derrick Hughston and Matt Foster, Deputies with the Howell County, Missouri Sheriff's Office (“HCSO”) at the time of the events at issue. For the reasons set forth below, it is RECOMMENDED that Defendants' Motions to Suppress, (Docs. 42, 47 and 55), be GRANTED.

         I. Findings of Fact[1]

         On January 2, 2016, Deputies Hughston and Foster were conducting a saturation patrol of Howell County, Missouri looking for DWI and traffic infractions. At approximately 11:48 PM, they were traveling north on State Route 80 when they passed Union Grove Church and observed two vehicles, a truck and a white passenger car, sitting stationary in the church parking lot. The vehicles were parked side by side with the driver doors facing each other. Because of his knowledge of a prior burglary at the church, Deputy Hughston turned around at the next available location and headed back towards the church. Although only a few moments had passed before the deputies returned to the church, both vehicles were no longer there. Suspicious of the quick departure, Deputy Hughston continued down the highway looking for the vehicles. He observed two sets of taillights traveling down County Road 6620 and turned down the road to follow the vehicles.

         As they approached, Deputy Hughston observed that the two vehicles were the same ones he had seen parked at the church. The truck, a black Chevy S10 pickup, was in the lead, followed by a white passenger car, which was later determined to be a white Chevy Impala.[2]When the vehicles braked to turn a corner, the deputies observed the truck's rear tail lights emitting a white light instead of a red brake light. Believing that the brake lights were improperly wired, Deputy Hughston initiated his emergency lights to make a traffic stop of the truck. The driver of the Impala slowed, but did not yield or pull over; instead, the car moved to the left of the center line. Believing the car was attempting to block the patrol car from getting around it, Deputy Hughston turned his driver's side spot light on and saw the driver of the Impala check her driver's side mirror multiple times. He initiated his siren and the Impala moved over, allowing Deputy Hughston to pass but still requiring him to enter the ditch line to get around the vehicle. As the patrol car pulled up behind the truck, the driver pulled over with no delay. The Impala pulled up behind the patrol car and came to a stop.

         While Deputy Foster made contact with the occupants of the Impala, Deputy Hughston approached the truck and made contact with the driver, Sanders, and passenger, Richardson, the defendants in this case. Deputy Hughston asked both occupants for identification and obtained Sanders's proof of insurance. He then asked Sanders to get out of the truck and step to the front of the patrol car. He observed that Sanders was wearing blue jeans and a denim jacket with pockets. Deputy Hughston asked Sanders for consent to search his person. Sanders made no statement and put his arms out to the side. Deputy Hughston asked whether Sanders was giving or denying consent, at which point Sanders stated he did not consent. Based on the time of night, the location of the stop on an unlit county road, the suspicious nature of the Impala's driving and the fact that it had pulled up behind the patrol car, Deputy Hughston asked Sanders whether he had any weapons. Sanders initially replied that he did not have any weapons on him, but moments later admitted he had a pocket knife. Sanders removed the knife and placed it on the hood of the patrol car. Deputy Hughston asked Sanders if he had any more weapons. Sanders replied he did not. Deputy Hughston advised Sanders he was going to conduct a frisk of Sanders's person. At that point, Sanders became upset and accused Deputy Hughston of harassing him. Because Sanders failed to initially disclose the pocket knife and became negative when advised about the frisk, as well as the late hour and suspicious activity with the other vehicle, Deputy Hughston was concerned that Sanders may have additional weapons on his person and began a frisk of him for officer safety.

         Deputy Hughston patted the outside of Sanders's pockets and felt a large bulge in Sanders's front left pant pocket. He asked Sanders about the bulge, and Sanders replied it was money. Deputy Hughston continued the frisk and observed the “reflection of a bag” in Sanders's left coat pocket and “could not describe it” but could “tell that it was a clear and plastic.” When Deputy Hughston asked Sanders about the bag, Sanders made no statement. Instead, Sanders reached towards his left coat pocket with his left hand, at which point Deputy Hughston removed the plastic bag and Sanders lunged for the knife, grabbing the knife with both hands.[3] Deputy Foster grabbed Sanders's hands and took the knife. Deputy Hughston asked Sanders why he did that; Sanders remained silent. He searched Sanders pocket with his flashlight and then completed the frisk, finding nothing else on Sanders.

         Deputy Hughston placed the bag, an empty clear plastic baggie, under the windshield wiper of the patrol car and asked Sanders to sit in the front seat. He then entered the driver's side of his patrol vehicle “to conduct the interview with [Sanders] and complete the forms for the stop.”[4] Before doing so, Deputy Hughston asked Deputy Foster to test the bag for the presence of methamphetamine while he completed the paperwork for the stop. Deputy Hughston asked Sanders where he was going and Sanders replied that he was going to visit a relative. After conducting a field test, Deputy Foster informed Deputy Hughston that the baggie tested positive for the presence of methamphetamine. At this point, Deputy Hughston had completed the paperwork for the stop and asked Sanders to step outside the vehicle. Deputy Foster then conducted a probable cause search of Sanders, seizing the money Sanders had disclosed earlier, which totaled approximately $2, 500.00, but finding nothing else.

         While Deputy Foster conducted the probable cause search of Sanders, Deputy Hughston approached the truck where Richardson was still sitting in the passenger seat. Without asking any questions, he had her exit the vehicle and step to the front of the truck on the driver's side. She consented to a search of her person, and Deputy Hughston allowed her to empty her own pockets. Deputy Hughston believed he observed that one of Richardson's breasts appeared larger than the other and believed Richardson was attempting to conceal something under her clothing. When he asked Richardson about her clothing, she voluntarily pulled her shirt out and shook her top and bra, but nothing fell out. After the search was completed, Richardson asked if she could smoke a cigarette. Deputy Hughston asked her if the cigarettes were on her person. Richardson said they were not. Deputy Hughston asked if the cigarettes were in her purse or if her purse was in the truck. Richardson confirmed that her purse was in the truck. Deputy Hughston observed a large black purse with two carrying handles and an open top sitting in the passenger seat. Without asking any further questions, he reached through the driver side door across the driver's side seat, grabbed the handles of the purse and picked it up. He then asked her for consent to search the purse, at which point her demeanor drastically changed and she repeatedly informed him she would not give him consent to search the purse.

         Deputy Hughston set the purse down on the driver's seat and turned to talk to her, leaving the driver's side door of the truck open. When Deputy Hughston looked back at the purse, he observed the stem of a glass pipe that he knew from his training and experience was consistent with that of a methamphetamine pipe sticking out of the top of the purse. Deputy Hughston informed Richardson that he no longer needed her consent and began a probable cause search of the purse. He discovered a glass bubble for smoking methamphetamine with methamphetamine residue in it and a set of digital scales with a lot of methamphetamine residue on them. From his experience and training, Deputy Hughston knew that these items were consistent with possession and distribution of illegal controlled substances. After discovering the pipe and scales, Deputy Hughston informed Sanders and Richardson that he was going to conduct a probable cause search of the vehicle. During the search he discovered a black and yellow Dollar General bag that contained a vacuum-style zip lock bag with a large amount of a white crystal substance that tested positive for methamphetamine. Approximately four months later, this indictment followed. (Doc. 1.)

         II. Conclusions of Law

         The Fourth Amendment protects citizens from unreasonable searches and seizures by the government. U.S. Const. amend IV; United States v. Va Lerie, 424 F.3d 694, 701 (8th Cir. 2005). Generally, evidence found as a result of an unlawful search or seizure, and the fruits therefrom, cannot be used against a defendant and must be suppressed. United States v. Riesselman, 646 F.3d 1072, 1078-79 (8th Cir. 2011). However, searches conducted pursuant to established and well-delineated exceptions do not require a warrant and are thus not unreasonable. Arizona v. Gant, 556 U.S. 332, 338 (2009). Defendants argue that the frisk of Sanders, seizure and search of the clear baggie from his pocket, seizure and search of Richardson's purse, and search of Sanders's vehicle were unreasonable and not conducted pursuant to any valid exceptions to the warrant requirement. In response, the Government argues that the deputies had reasonable suspicion to conduct a warrantless frisk of Defendant Sanders for weapons, and probable cause to search the vehicle and Sander's pocket. Additionally the Government argues they had either consent or probable cause to conduct a warrantless search of Richardson's purse based on the plain view of the glass smoking device or the methamphetamine discovered on Sanders. Finally, the Government argues they had probable cause to search Defendant Sanders's vehicle after finding contraband on Sanders's person and in Richardson's purse. The Court takes up the parties' arguments below.

         A. Frisk of Sanders was reasonable.

         Sanders first argues the warrantless detention and frisk of his person was unreasonable. During a routine traffic stop, a law enforcement official may examine a driver's license, ask about a driver's destination, request the driver to sit inside the patrol car or ask for consent to search. United States v. Brown, 345 F.3d 574, 578 (8th Cir. 2003); United States v. Gill, 513 F.3d 836, 845 (8th Cir. 2008). An officer may also conduct a protective search of a motorist for weapons if the officer has reasonable articulable suspicion that the person is armed and dangerous. Arizona v. Johnson, 555 U.S. 323, 328 (2009); Terry v. Ohio, 392 U.S. 1, 27 ...

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