United States District Court, S.D. Indiana, Terre Haute Division
ORDER ON DEFENDANT'S MOTION TO SUPPRESS
JANE MAGNUS-STINSON, CHIEF JUDGE
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
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. [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
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.]
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.]
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.]
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.]
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.]
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.]
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.