United States District Court, W.D. Missouri, Western Division
REPORT AND RECOMMENDATION
J. WHITWORTH United States Magistrate Judge.
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).
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,
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.
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).
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).
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).
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).
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
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).
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