from the Circuit Court of Boone County, Missouri The
Honorable Jeff Harris, Judge
Division Four: Mark D. Pfeiffer, Chief Judge, Presiding,
Cynthia L. Martin, Judge and James E. Welsh, Senior Judge
CYNTHIA L. MARTIN, JUDGE
State appeals from the trial court's interlocutory order
granting Anthony West's ("West") motion to
suppress all evidence collected from or as a result of the
warrantless search and seizure of a semi-truck's
electronic control module ("ECM"). The State
asserts that the trial court clearly erred in granting
West's motion to suppress because there was no evidence
that West had a subjective expectation of privacy in the ECM
to afford him standing to assert a violation of the Fourth
Amendment; a warrant was not required because the automobile
exception applied; a warrant was not required because exigent
circumstances were present; downloading data from the ECM was
neither a search nor a seizure because the data collected was
merely a proxy for data which was visible to the public; a
warrant was not required under the highly regulated industry
exception; and a warrant was not required because there was
probable cause to believe the semi-truck was an
instrumentality of a crime. We affirm.
and Procedural Background
State charged West with one count of involuntary manslaughter
in the first degree in violation of section
565.024. The State alleged that, on July 1, 2015,
West was driving a semi-truck owned by his employer on
Interstate 70 in Boone County when he recklessly failed to
yield to stopped traffic and collided with a pickup truck
operated by Mary Haile, causing her death.
filed a motion to suppress ("Motion to Suppress")
"all evidence collected in this case, either directly,
or as a result of the collection of initial evidence and
data, from the warrantless search and seizure of the
defendant's vehicle's Electronic Control Module
and/or Electronic Control Unit . . . data." West's
motion argued that West was in lawful possession of the
semi-truck (though he did not own same), and thus had a
reasonable expectation of privacy in the truck affording him
standing to challenge a warrantless search and seizure; that
he thus had a reasonable expectation of privacy in the data
stored in the ECM requiring a warrant to search and seize the
data; that search and seizure of the ECM data without a
warrant was analogous to the warrantless GPS search deemed to
violate the Fourth Amendment in United States v.
Jones, 565 U.S. 400 (2012); and that no exigent
circumstances supported a warrantless search and seizure of
the ECM data. The State did not file a written response to
West's Motion to Suppress.
hearing on the Motion to Suppress, two officers testified.
Missouri State Highway Patrol Corporal Devin Foust
("Corporal Foust") performed the initial
investigation of the accident, and arrived at the scene
between 9:10 and 9:20 a.m., shortly after the accident
occurred. Corporal Foust testified that he spoke with West at
the scene and that West indicated that the semi-truck's
brakes did not work. Approximately three hours later,
Corporal Foust went to the hospital where West had been
transported, and asked West to consent to a blood draw to
test for evidence of impairment. West consented to the blood
Foust testified during the suppression hearing that while he
was at the hospital, he was contacted by Missouri State
Highway Patrol Sergeant Paul Meyers ("Sergeant
Meyers") who asked Corporal Foust to see if West would
consent to the download of data from the ECM in the
semi-truck. Corporal Foust testified that West consented to
the download of the data. However, Corporal Foust's
contemporaneously prepared incident report did not include
any reference to West consenting to a search of the ECM data
from his semi-truck. In June 2017, nearly two years after the
accident, Corporal Foust wrote a supplemental report at the
request of the prosecutor which indicated that West consented
to a search of the semi-truck's ECM at 12:15 p.m.
Meyers, a major crash investigator who is certified in crash
data retrieval, also testified at the suppression hearing.
Sergeant Meyers testified that in July 2015, the Missouri
State Highway Patrol's policy was that if an accident
scene has not been disrupted and remains "pristine,
" and if the officers had reason to believe data existed
in a vehicle's ECM, the officers would seize that data in
order to investigate the accident. In other words, it was
"standard practice" to download ECM data if
possible without a warrant. Sergeant Meyers testified that he
asked Corporal Foust to obtain West's consent to search
the semi-truck's ECM because, while standard practice at
that time did not require consent, "it's always
better to get consent."
Meyers testified that after Corporal Foust told him that West
had given consent to search the ECM, he downloaded the ECM
data from the semi-truck using the Missouri State Highway
Patrol's computer and software. Sergeant Meyers testified
that he extracted the ECM data on July 1, 2015, at 11:18
However, Sergeant Meyers testified that he was unsure whether
the time was accurate because the "computer that has the
software on it is not linked to the Patrol system so it
doesn't get updated regularly." Sergeant Meyers
testified that he downloaded additional ECM data on July 2,
2015, when the semi-truck was at the tow facility.
Meyers explained at the suppression hearing what an ECM is
and what kind of data it collects:
The ECM is like the brain of the truck. It controls all the
functions of braking, throttle, transmission. Without an ECM
on a diesel -- modern diesel engine, they can't run. They
need that ECM to operate.
. . . .
As a part of their function, they store data. Based off the
manufacturer determines what types of reports they run.
Ideally, they are a fleet management tool. It's something
-- if you own ten tractor-trailers and you're operating
in Colorado, you can pull up these reports and you can modify
the trucks to run in the mountains more efficiently; whereas,
if you have a company in Colorado, you can pull up your ten
trucks' reports, look at the PowerSpec downloads. You
could -- it's also a tattletale on your drivers, you
know, to see who is doing what, how fast they are going, and,
you know, what their trip summaries look like. So it's
kind of a -- for a lack of a better term, a snapshot or a
look at how the trucks are operating and allows you the
capabilities to modify them.
Meyers testified that the ECM is standard operating equipment
for a Cummins engine, like the one in the semi-truck driven
Meyers testified that a specialized computer and software is
required to access ECM data, and that as a result, the ECM
data cannot be accessed by the driver. He described the
process for accessing ECM data as follows:
Every diesel engine manufacturer has their own software to
read the ECMs on their engines. Cummins[, the manufacturer of
the engine in West's semi-truck], uses a program called
Insite or PowerSpec.
[The Missouri State Highway Patrol has] a license through
Cummins to use the PowerSpec software.
. . . .
We also use a Nexiq translator box. Basically it's a
go-between the ECM to the software. It allows the data to
transfer over to be read by the software.
In a Cummins report, it's very simple. There is a
nine-pin connector underneath the dash. You plug it in, put
power to the Nexiq box, plug it into the laptop, turn the
ignition to the on switch. It communicates with the software,
says it recognizes, I see a truck or I see an ECM, and it
tells you what reports are available.
Meyers testified that there is a risk that data on the ECM
can be lost if it is not downloaded at the scene because the
ECM on a Cummins engine only stores three records on a
rolling basis. When Sergeant Meyers arrived on the scene at
approximately 10:30 a.m., the semi-truck "still had
power, " but Sergeant Meyers did not know whether it
would have been able to be driven down the road.
also testified at the suppression hearing. West testified
that after the accident, he went to the hospital. While
there, Corporal Foust asked West for consent to search his
phone and to take a blood sample. West gave consent for both.
When asked if he gave consent to retrieving the ECM data,
West testified as follows: "I never heard nothing [sic]
about ECM until the other day when you contacted me and told
me that we had to come to court for this. I don't know
nothing about ECM."
the presentation of evidence, the trial court consulted with
counsel for the State and West to clarify the issues it
needed to determine to rule on the Motion to Suppress. First,
the State asserted that West failed to meet his burden to
establish that he had standing to challenge the search and
seizure of the ECM and its data because West did not have an
expectation of privacy in the data collected by the ECM. West
responded that he had standing to assert a Fourth Amendment
violation because he had a reasonable expectation of privacy
in the semi-truck as a permissive, lawful user of the
semi-truck, which extended to the ECM recorder located in the
truck. West also responded that, even if his expectation of
privacy in the semi-truck did not extend to the ECM, he
independently had a reasonable expectation of privacy in data
stored in the ECM regarding his operation of the semi-truck.
West added that the United States Supreme Court decision in
United States v. Jones, 565 U.S. 400 (2012), which
involved a GPS device attached without a warrant, analogously
applied to require suppression. Second, the State argued
that, if West did have standing to assert a Fourth Amendment
violation, then a warrantless search was permitted because:
(1) West consented to the search; (2) the automobile
exception applied; and (3) the exigent ...