Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Lowry

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

February 1, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL B. LOWRY, Defendant.

          REPORT AND RECOMMENDATION

          MATT J. WHITWORTH United States Magistrate Judge.

         Before the Court is Defendant Michael Lowry's Motion to Suppress Evidence. (Doc. No. 25). The Government has filed suggestions in opposition to Defendant's motion (Doc. No. 26) and Defendant filed a reply (Doc. No. 27).

         An evidentiary hearing on Defendant's motion was held. (Doc. No. 33). During the hearing, the Government called Independence, Missouri Police Department Officer Joseph Hand as a witness. The following exhibits were offered and admitted into evidence:

Government's Exhibit 1: Aerial map of bus stop at ¶ 40 Highway and I-70 and surrounding area, Independence, Missouri;
Government's Exhibit 2: Aerial map of bus stop at ¶ 40 Highway and I-70, Independence, Missouri; and
Government's Exhibit 3: Dash cam video.

         I. FACTS

         Joseph Hand is a patrol officer with the Independence, Missouri Police Department (Tr. at 4-5). He has been with the Independence, Missouri Police Department for approximately five years (Tr. at 5). On January 28, 2017, Officer Hand was working overnight patrol in District 21; he had a Lenexa, Kansas police officer riding along with him (Tr. at 6-7, 21).

         The Independence, Missouri Police Department had issued a department-wide directive to proactively patrol the bus stop at 40 Highway and I-70 (Tr. at 6-7, 37-38, 61). This bus stop was in a high crime area, known for a lot of disturbances, fights, narcotic sales, stolen cars, violent crimes and issues with drinking (Tr. at 7, 37, 50, 61). In addition to this directive, Officer Hand had also been asked by his sergeant and supervisors to proactively patrol the area (Tr. at 61). As a result, Officer Hand typically visited the bus stop five or six times a night when patrolling District 21 (Tr. at 7).

         On the evening of January 28, 2017, the weather was cold, windy and misty (Tr. at 7). At approximately 9:13 p.m., Officer Hand conducted a proactive patrol of the bus stop (Tr. at 10, 38-39, 50). The bus stop at 40 Highway and I-70 has two separate shelters separated by approximately 25 yards (Tr. at 9, 36-37, 40; Gvt. Exh. 2). Highway 40 is located directly behind the shelters, separated from the shelters only by a grassy, median-like strip (Gvt. Exhs. 1, 2).

         Officer Hand parked perpendicular to the shelter on the right (Tr. at 13; Gvt. Exh. 3). Defendant was in the left shelter wearing bulky clothing and a backpack; Officer Hand observed Defendant look in the direction of his police vehicle and immediately walk around to the back of the shelter obstructing Officer Hand's view of Defendant (Tr. at 13, 15, 16-17, 19, 42-43, 63). Officer Hand was not aware of Defendant's identity and did not know anything about him (Tr. at 39, 41, 49).

         As Officer Hand exited his patrol vehicle he encountered Tyson Parks in the right shelter, an individual who he knew to be banned from the bus stop (Tr. at 10, 15). As Officer Hand contacted Mr. Parks, he observed Defendant continue to look in his direction and walk back to the front of the left shelter (Tr. at 17). Officer Hand looked in Defendant's direction and made eye contact with him; Defendant then walked behind the shelter a second time (Tr. at 18). Officer Hand shined his flashlight at Defendant and directed him to “Come here” (Tr. at 16, 18, 45; Gvt. Exh. 3 at 1:32). When Defendant asked why, Officer Hand responded “Because I said so” (Tr. at 45-46; Gvt. Exh. 3 at 1:37).

         Officer Hand's common practice when dealing with a pedestrian is to approach them (Tr. at 58-59). In this instance, however, Officer Hand asked Defendant to come to him because he was dealing with both Defendant and Mr. Parks (Tr. at 20, 58-59). Officer Hand was also concerned with the safety of the officer riding with him as well as the surrounding public (Tr. at 59).

         Defendant's behavior caused Officer Hand to believe that Defendant was trying to avoid contact with him; Officer Hand also thought Defendant might be involved in criminal activity, drugs or alcohol (Tr. at 18, 47). He believed Defendant may have been trying to throw or conceal drugs or a weapon behind the shelter (Tr. at 18-19, 64). Officer Hand was not close enough to smell drugs or alcohol on Defendant and did not see Defendant discard anything to the ground, stagger, lose his balance or act belligerent (Tr. at 47, 52-53). He did not observe Defendant with alcohol or narcotics or see Defendant engage in any type of transaction (Tr. at 50, 52-53). Officer ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.