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United States v. Davis

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

September 10, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
EVERETT K. DAVIS, Defendant.

          REPORT & RECOMMENDATION

          DAVID P. RUSH UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Motion to Suppress Evidence (doc. 41) filed by Defendant Everett K. Davis. This action has been referred to the undersigned for the purpose of submitting a report on any pretrial motions to suppress evidence. As follows, it is RECOMMENDED that the Motion to Suppress Evidence be DENIED.

         I. Background

         Defendant has been charged by Indictment in three counts regarding events occurring on or about March 13, 2018, as follows: Count 1, possession with intent to distribute a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); Count 2, possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); and, Count 3, possession of a firearm by a convicted felon and drug user in violation of 18 U.S.C. §§ 922(g)(1) and (3) and 924(a)(2). (Doc. 2.) Defendant moves to suppress:

any evidence in this case, and any statements in this case, obtained by law enforcement officers as a result of the March 13, 2018 detention, seizure, arrest, and search of Defendant by the Barry County Sheriff's Office and Ozark Drug Enforcement Team (ODET), said search and seizure having occurred in rural Barry County, Missouri, near Highway MM and Farm Road 1057.

(Doc. 41 at 1.) According to Defendant:

the detention, search and seizure, and arrest of [Defendant] was unlawful and in violation of his Fourth Amendment rights under the United States Constitution in that the same was pretextual in nature and was not based upon objectively reasonable articulable suspicion of criminal activity to detain nor upon probable cause to search or arrest.

Id.

         An evidentiary hearing was conducted on July 23, 2019. (Doc. 51.) The Government was represented by Jessica Keller, and Defendant appeared in person with his attorney, Brian Risley. During the hearing, defense counsel further explained the grounds for the motion, stating that “we're arguing [] there was not sufficient probable cause for them to stop” and “the basis of our motion to suppress is based on the initial stop. Once he stopped him and then my client said no and resisted, I mean, at that point I'm not objecting to the actions of the officer [] on what he did.” (Doc. 53 at 27.) Joseph Houdyshell and Taylor Lombard testified as witnesses for the Government at the hearing.

         II. Findings of Fact [1]

         Joseph Houdyshell is a narcotics detective for the Ozarks Drug Enforcement Team. On March 13, 2018, Detective Houdyshell and his partner, Detective Noland Murray, were conducting stationary surveillance of the house of Carl Lincoln, located on Farm Road 1057 and Farm Road 2200 in Barry County, Missouri. The detectives were doing so based on information received from multiple informants, controlled buys, and a search warrant that Lincoln and Defendant were selling narcotics and in possession of firearms at Lincoln's house.

         Earlier that day, the detectives had spoken with a neighbor to the southeast of Lincoln's house. The neighbor gave the detectives permission to sit on her property. The neighbor also complained to the detectives that individuals from Lincoln's house were repeatedly trespassing on her property by crossing her fields where there were crops.

         While conducting surveillance, the detectives saw Defendant leave Lincoln's house, walk to the intersection of 1057 and 2200, then walk behind some hay bales on private property, where he urinated. The detectives then watched Defendant walk across the center of the 50- to 60-acre field where the neighbor had complained about persons trespassing. About halfway across the neighbor's field, Defendant dropped a green bag he was carrying. When Defendant bent over to pick up the bag then stood up, Det. Houdyshell observed him adjusting a gun in his waistband. Det. Houdyshell was aware at the time that Defendant had prior felony convictions. Defendant then continued to the other side of the neighbor's field, where a vehicle picked him up, travelled a short distance, then stopped. Defendant exited the vehicle and walked down 1057 towards Highway MM.

         At this point, Det. Murray called Taylor Lombard, who was working as a Deputy for the Barry County Sheriff's Office.[2] Dep. Lombard was on standby in the area, in case the detectives needed a uniformed officer's assistance. Det. Murray told Dep. Lombard that they had witnessed Defendant trespassing on another person's property and that he may have a firearm, and asked Dep. Lombard to approach Defendant. As requested, Dep. Lombard contacted Defendant, who was standing next to a tree at the intersection of MM and 1057. Dep. Lombard knew at the time that Defendant was a convicted felon based on prior law-enforcement contacts with him. Upon making contact, Dep. Lombard informed Defendant he had been seen trespassing, to which Defendant replied he had to pee and had just stopped there for a second. Next, Dep. Lombard asked Defendant for identification, but Defendant said he did not have any. Dep. Lombard then asked Defendant if he had anything illegal on him, to which Defendant replied he didn't. Dep. Lombard asked for permission to check, Defendant refused, and Dep. Lombard told him he was going to pat him down for weapons. Defendant replied “Fuck dude, no man, ” and began walking away. ...


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