United States District Court, W.D. Missouri, Southwestern Division
REPORT & RECOMMENDATION
P. RUSH UNITED STATES MAGISTRATE JUDGE
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.
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.
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
Findings of Fact 
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
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.
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.
point, Det. Murray called Taylor Lombard, who was working as
a Deputy for the Barry County Sheriff's
Office. 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. ...