United States District Court, W.D. Missouri, Western Division
REPORT AND RECOMMENDATION
J. WHITWORTH, UNITED STATES MAGISTRATE JUDGE.
the Court is defendant Curtis David Barker's motion to
suppress evidence. (Doc. 28). The Government has filed
suggestions in opposition. (Doc. 29). A hearing was held on
the motion during which the parties presented evidence. (Doc.
38). Defendant Curtis David Baker was charged on March 10,
2016, in a three-count indictment with felon in possession of
a firearm and ammunition (Count 1), possession with intent to
distribute marijuana and cocaine (Count 2) and firearm with
drug trafficking (Count 3). Defendant Barker's motion to
suppress argues that the police violated his constitutional
rights under the Fourth Amendment when they unlawfully
detained his vehicle, detained him, and searched his vehicle
and his person. Defendant requests the Court suppress all
physical evidence and testimony related to such evidence
obtained in violation of his Fourth Amendment rights.
January 31, 2016, Missouri Highway Patrol Troop Pilot Sgt.
Kevin Haywood was conducting aircraft speed checks of highway
traffic along I-29 in and near Andrew County, Missouri. In
2016, Sgt. Haywood had been with the Missouri State Highway
Patrol for approximately 31 years and had been a pilot for 21
years. Sgt. Haywood had specialized training in conducting
aerial speed checks of vehicles and had many years of
experience in conducting such speed checks. Aerial speed
checks are done by using a calibrated chronometer to measure
the time a vehicle takes to pass between two known points.
The two known points are markers aka/speed blocks which are
set out on the roadway at specific distances. Then a
mathematical formula is applied to ascertain the
vehicle's average speed during that distance of travel.
The Missouri State Highway Patrol indicates that this form of
speed checking is more reliable than radar.
January 31, 2016, prior to conducting aerial speed checks on
I-29, Sgt. Haywood confirmed the chronometer was correctly
calibrating. Sgt. Haywood did the calibration check by timing
the travel time of Highway Patrol Cpl. Dudeck's vehicle
between the two speed blocks. Cpl. Dudeck set his cruise
control on 69 miles per hour and Sgt. Haywood correctly
calculated from the aircraft Cpl. Dudeck's vehicle's
speed. Sgt. Haywood confirmed the correct calibration and
memorialized it on his Aircraft Speed Check Log for January
31, 2016, for 11:00 a.m. to 12:00 pm.
January 31, 2016, at approximately 11:19 a.m., Sgt. Haywood
did an aerial speed check on a truck that was later
determined to be driven by Defendant. Sgt. Haywood confirmed
that Defendant was driving at 80 miles per hour in a posted
speed limit zone of 70 miles per hour. Sgt. Haywood
communicated this information to Cpl. Dudeck who was in his
Highway Patrol vehicle on I-29. Cpl. Dudeck started following
the truck described by Sgt. Haywood and Sgt. Haywood
confirmed to him that he was following the correct truck.
Cpl. Dudeck engaged his patrol vehicle's overhead lights
and pulled over the truck on the shoulder of I-29 for
exceeding the speed limit. The truck was a 2012 red Dodge Ram
1500 truck, bearing South Carolina registration IFY767.
Dudeck exited his vehicle and approached the passenger side
of the truck, away from traffic. When the passenger rolled
down her window Cpl. Dudeck noticed a strong odor of cologne.
Based on his training and experience (10 years with Missouri
Highway Patrol, canine handler in Marines, and Oliver,
Missouri law enforcement) Cpl. Dudeck knew that a strong
smell of cologne can be used to mask the smell of controlled
substances from law enforcement. Cpl. Dudeck also noticed
that the occupants in the vehicle did not have on their
seatbelts and were acting nervous and breathing heavily. Cpl.
Dudeck directed Defendant, the driver of the truck, to exit
the truck and go sit in the passenger seat of his patrol
vehicle while Cpl. Dudeck asked the female passenger for her
identification information. After attaining the female
passenger's identification, Cpl. Dudeck returned to his
patrol vehicle where defendant was sitting in the passenger
seat. The dash cam recorded Cpl. Dudeck's and
Defendant's interaction while in the patrol vehicle. Cpl.
Dudeck obtained Defendant's Colorado driver's license
information and confirmed that he was Curtis David Baker.
Cpl. Dudeck confirmed that Defendant's license was valid
by running a computer check in the patrol vehicle. While
sitting in the vehicle with Defendant, Cpl. Dudeck smelled a
strong odor of cologne and green and burnt marijuana emitting
from Defendant. Cpl. Dudeck also noticed Defendant did not
make eye contact, kept his sunglasses on, was fidgeting,
acting nervous and breathing heavy. Based on his training and
experience Cpl. Dudeck was familiar with green and burnt
marijuana odors. Cpl. Dudeck was also familiar with cues such
as strong cologne smell and nervous behaviors indicating
illicit drug activity.
Dudeck was trying unsuccessfully to check the female
passenger's identification information in the patrol
vehicle computer based on the information she had provided,
he noticed the female passenger was holding out the truck
window the insurance information that she was originally not
able to produce. Cpl. Dudeck exited his patrol vehicle and
again approached the truck to retrieve the insurance
information and try to obtain additional identification
information from the female passenger in order to identify
her. As Cpl. approached the truck, he could smell the odor of
green marijuana. Cpl. Dudeck stated at this point he believed
he had probable cause to search the truck.
Dudeck returned to his patrol vehicle with the information
provided by the female passenger at which time he told
Defendant, who was still sitting in the passenger side, that
he was going to search the truck because he had smelled the
odor of marijuana. Cpl. Dudeck asked Defendant “How
much marijuana is going to be in the truck when I search
it?” Defendant indicated there was not any marijuana in
the truck. Cpl. Dudeck responded that he could smell the odor
of marijuana and stated that if Defendant possessed a
misdemeanor amount of marijuana, which was less than 35
grams, then Cpl. Dudeck would just issue Defendant a ticket.
Defendant responded by stating he had a little can in the
front console of the vehicle but that was all there was.
Defendant stated that the female passenger could give it to
Cpl. Dudeck if he asked. Cpl. Dudeck requested Defendant put
his hands on the dash of the car while he searched the car
for safety purposes. Cpl. Dudeck also radioed for back up.
female passenger provided to Cpl. Dudeck a can that was
consistent with the one described by the Defendant. Inside
the can Cpl. Dudeck found a green leafy substance that Cpl.
Dudeck believed, based on his training and experience, to be
marijuana. At 11:40:47 a.m. Cpl. Dudeck secured the can in
the trunk of his patrol vehicle and directed Defendant out of
the patrol vehicle to arrest him for possession of the
marijuana. Cpl. Dudeck asked Defendant if there was anything
illegal on him or if he had any weapons on his person and
Defendant indicated he did not. In a search incident to
arrest Cpl. Dudeck found a loaded Cobray Firearm 410/45 long
colt double barrel derringer pistol in Defendant's front
pocket. Also discovered in the search incident to arrest was
a roll of cash ($4, 100.00) in a pocket of the leather vest
Defendant was wearing. Located in the front pocket of
Defendant's sweatshirt was a baggie with a white powdery
substance (later confirmed as cocaine). Defendant was placed
under arrest and handcuffed and seated in the passenger seat
of the patrol vehicle at approximately 11:46:54 a.m., at
which time Defendant spontaneously stated “Oh well, it
is all over now.” At approximately 11:48:40 a.m.
Corporal Dudeck apprised Defendant of his Miranda
rights. Defendant orally acknowledged he understood his
rights. At this time, Cpl. Dudeck stated he was going to
search Defendant's vehicle. Defendant stated to Cpl.
Dudeck that whatever he found in the truck belonged to him,
and the female passenger did not have anything to do with it.
Dudeck began conducting a search of Defendant's vehicle
and found extra-large camouflage duffle bag in the back
passenger seat of the truck which contained several vacuum
sealed packages of marijuana. The bag weighted approximately
40 pounds. The second officer who had arrived on the scene to
assist, Cpl. Schmultzler, opened the cover to the bed of the
truck and located several trash bags. Inside the trash bags
were more vacuum sealed packages of marijuana. The
approximate weight of the marijuana found in the truck was
later determined by the lab to be just under 100 pounds. Cpl.
Dudeck testified that the large quantity of marijuana found
was raw marijuana which has a strong odor, which was the odor
he had been smelling.
Traffic Stop and Detention
argues that Cpl. Dudeck's initiating of the traffic stop
of his truck was unlawful. A review to the evidence presented
at the suppression hearing shows no support for this claim.
Rather, the evidence shows that Defendant's truck was
calculated to be speeding by the most reliable method that
the Missouri Highway Patrol has to calculate a vehicle's
speed. Defendant's vehicle was calculated by the aerial
speed check to be traveling at a speed of 80 miles per hour.
The speed limit for the area was 70 miles per hour, thus
Defendant was traveling 10 miles per hour in excess of the
speed limit. “[T]o justify [a traffic stop], officers
need only reasonable suspicion.” Heien v. North
Carolina, 135 S.Ct. 530, 536 (2014). Reasonable
suspicion exists when an officer has a “particularized
and objective basis for suspecting the particular person
stopped of breaking the law.” Id. The Eighth
Circuit has held that an “a traffic violation-however
minor-creates probable cause to stop the driver of a
vehicle.” United States v. Linkous, 285 F.3d
716, 719 (8th Cir. 2002). See also United
States v. Bell, 86 F.3d 820, 822 (8thCir.
1996) (“[A]ny traffic violation, even a minor one gives
an officer probable cause to stop the violator.”);
United States v. Neumann, 183 F.3d 753, 756
(8th Cir. 1999) (“[Officer] had probable
cause to ...