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United States v. Burnett

United States District Court, S.D. Indiana, Terre Haute Division

May 23, 2019

United States of America, Plaintiff,
v.
Anthony Burnett (01), Defendant.

          ORDER ON DEFENDANT'S MOTION TO SUPPRESS

          HON. JANE MAGNUS-STINSON, CHIEF JUDGE

         Presently pending before the Court is Defendant Anthony Burnett's Motion to Suppress Illegally Seized Evidence (“Motion to Suppress”). [Filing No. 43.] Mr. Burnett has been indicted on one count of possession with intent to distribute fifty grams or more of methamphetamine, [Filing No. 18], and the trial in this matter is set for August 5, 2019, [Filing No. 42 at 2]. Mr. Burnett seeks to suppress evidence obtained after what he contends was an unlawful search and seizure in violation of his Fourth Amendment rights. [Filing No. 43.] The Motion to Suppress is now ripe for the Court's review. For the reasons detailed herein, the Court DENIES Mr. Burnett's Motion to Suppress and his request for a hearing on the matter.[1]

         I.

         Background[2]

         On July 29, 2017, Mr. Burnett was driving his 1989 Ford F350 pickup truck when he passed Major Dwight Simmons of the Putnam County Sherriff's Office, who was working traffic enforcement on U.S. 40 and had his vehicle in a stationary position at the time. [Filing No. 1 at 4.] As Mr. Burnett's vehicle passed by, Major Simmons noticed that the exhaust on the vehicle was extremely loud, and that he could hear it despite Major Simmons's vehicle's windows being rolled up and the radio playing. [Filing No. 1 at 4.] Major Simmons pulled his vehicle onto the highway to pursue Mr. Burnett for a potential violation of Indiana Code §§ 9-19-8-2 and 9-19-8-3.[3] [Filing No. 1 at 4.] When Major Simmons activated his vehicle's emergency lights, Mr. Burnett continued to drive until he reached the next crossroad. [Filing No. 1 at 4.] As Mr. Burnett was pulling his vehicle over to the shoulder, Major Simmons observed Mr. Burnett “leaning to the right as if he was using his right arm to conceal something within the passenger compartment, ” and the car swerved across the fog line briefly as Mr. Burnett made this leaning motion. [Filing No. 1 at 4.] When Mr. Burnett brought his vehicle to a stop, Major Simmons approached the passenger side window and saw that Mr. Burnett was the only person in the car. [Filing No. 1 at 4.] Major Simmons recognized Mr. Burnett and knew from conversations with other officers that Mr. Burnett had had previous contact with law enforcement, including an arrest in January 2017 for possession of methamphetamine and possession of marijuana. [Filing No. 1 at 4-5.] When Major Simmons advised Mr. Burnett that he had pulled him over for a loud exhaust, Mr. Burnett responded that he had the exhaust “running straight down towards the ground.” [Filing No. 1 at 5.] Mr. Burnett provided Major Simmons with his driver's license and several other documents; however, none of the documents provided were Mr. Burnett's registration. [Filing No. 1 at 5.] While Mr. Burnett continued looking for his registration in the vehicle, Major Simmons asked Mr. Burnett if he had automobile insurance. [Filing No. 1 at 5.] Mr. Burnett responded that he did have insurance, but he could not provide proof of insurance. [Filing No. 1 at 5.] Mr. Burnett advised that his insurance was through “the Glen Furr Agency, ” but he could not name the company that actually issued the insurance policy. [Filing No. 1 at 5.] Major Simmons found this lack of information suspicious, and it made him think that Mr. Burnett did not have insurance. [Filing No. 1 at 5.] Major Simmons also noticed that Mr. Burnett was becoming overly nervous, as evidenced by his shaking hands and rapid, labored breathing. [Filing No. 1 at 5.]

         Based on Mr. Burnett's behavior, Major Simmons requested that Deputy Jacob Harrington (also patrolling U.S. 40) report to the scene to assist him. [Filing No. 1 at 5.] While Deputy Harrington was traveling to the scene, Major Simmons returned to his patrol car and began filling out a warning citation for the loud exhaust issue. [Filing No. 1 at 6.] At this time, Mr. Burnett had located his registration and began waving it out of the driver's side window of his vehicle. [Filing No. 1 at 6.] Major Simmons walked to Mr. Burnett's vehicle to retrieve the registration. [Filing No. 1 at 6.] Mr. Burnett continued searching for his proof of insurance, but he could not find it. [Filing No. 1 at 6.]

         Major Simmons continued to fill out the citation form until Deputy Harrington arrived. [Filing No. 1 at 6.] Eleven minutes had elapsed between the time Mr. Burnett's vehicle was stopped and the time Deputy Harrington arrived at the scene. [Filing No. 1 at 4; Filing No. 1 at 6.] Major Simmons requested that Deputy Harrington complete the citation for lack of insurance, and he advised him that he would ask Mr. Burnett to move to the rear of the vehicle with Deputy Harrington. [Filing No. 1 at 6.]

         Major Simmons asked Mr. Burnett to step out of the vehicle, explaining that Mr. Burnett would be receiving a citation for his failure to provide proof of insurance. [Filing No. 1 at 6.] As Deputy Harrington was seating Mr. Burnett in the back of the patrol vehicle, Major Simmons advised Mr. Burnett that he would be using his narcotics-detection K-9 on Mr. Burnett's vehicle because Mr. Simmons had a pending drug case. [Filing No. 1 at 6.] Major Simmons asked Mr. Burnett if anything illegal was present in Mr. Burnett's vehicle, and Mr. Burnett broke eye contact with Major Simmons before he answered, “No.” [Filing No. 1 at 6.]

         The narcotics-detection K-9, which was certified in 2009 and has been recertified on an annual basis, was used to detect the odors of various substances including methamphetamine. [Filing No. 1 at 6.] Major Simmons led the K-9 around the driver's side of the vehicle, and the K-9 stopped near the rear tires and bed area and appeared to be detecting a narcotic odor. [Filing No. 1 at 7]. The K-9 also sniffed near the bumper and sat down as a signal that he detected the odor of a narcotic. [Filing No. 1 at 7.] Then the K-9 signaled again at the front and rear doors of the vehicle. [Filing No. 1 at 7.] Based on the signal from the K-9, Major Simmons then conducted an exterior and interior search of Mr. Burnett's vehicle. [Filing No. 1 at 7.] Inside the vehicle, Major Simmons saw a large Styrofoam cup sitting on the center hump of the floorboard of the car. [Filing No. 1 at 7.] When Major Simmons picked up the cup, he noticed that it seemed heavier than it should be. [Filing No. 1 at 7.] Major Simmons removed the lid on the cup and saw a plastic bag with a crystal-like substance inside, which Major Simmons suspected was methamphetamine, and which later tested positive as methamphetamine. [Filing No. 1 at 7.] Major Simmons asked Mr. Burnett to step out of the patrol car, and Major Simmons then put Mr. Burnett in mechanical wrist restraints and issued him a Miranda warning. [Filing No. 1 at 7.] After confirming that he understood his rights, Mr. Burnett declined to make any statements about the crystal-like substance. [Filing No. 1 at 7-8.] Deputy Harrington remained at the scene waiting for Mr. Burnett's vehicle to be impounded, and Major Simmons drove Mr. Burnett to the Putnam County Jail. [Filing No. 1 at 8.]

         Two days later, Major Simmons visited two gas stations in the area to attempt to obtain surveillance video of Mr. Burnett purchasing the soda in the large Styrofoam cup that was found during the search of Mr. Burnett's vehicle. [Filing No. 1 at 8]. Major Simmons was able to retrieve video evidence of Mr. Burnett making such a purchase just twenty-five minutes prior to Major Simmons pulling Mr. Burnett over on July 29, 2017. [Filing No. 1 at 8.]

         Major Simmons later investigated the exhaust system of Mr. Burnett's vehicle and discovered that the tail pipe ended just behind the cab rather than extending to the end of the truck bed, and the exhaust did not have a muffler. [Filing No. 1 at 9.] Major Simmons concluded that the exhaust system of Mr. Burnett's vehicle would not prevent excessive noise. [Filing No. 1 at 9.]

         On December 19, 2018, Mr. Burnett was indicted for one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). [Filing No. 18 at 1.] On February 4, 2019, Mr. Burnett filed a Motion to Suppress Illegally Seized Evidence, [Filing No. 43], which is now fully briefed and is ripe for the Court's review.

         II.

...


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