The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Defendant, Thomas Edward Throckmorton, was indicted by a Grand Jury on July 26, 2005, and charged with one count of illegal possession with intent to distribute 100 kilograms or more of a mixture and substance containing a detectable amount of marijuana, in violation of Title 21, United States Code, sections 841(a)(1) and 841(b)(1)(B)(vii).
On September 28, 2005, Defendant, through counsel, filed several pretrial motions, including the instant MOTION TO SUPPRESS ALL ITEMS SEIZED FROM THE 1988 GMC 2500 3/4 TON TRUCK REGISTERED TO INDUSTRIAL CONSTRUCTION ENTERPRISE (Document No. 17-7). Defendant seeks to suppress all of the evidence seized from the truck because "no probable cause existed to establish that evidence of a crime or contraband was present in the vehicle" or, in the alternative, that "said search is illegal as Robert Gailey did not have the authority to consent to a search of Defendant's vehicle . . ." Mot. at 12. The government, of course, argues that both the initial stop and the subsequent search of the truck were lawful.
On November 15, 2005, the Court conducted an evidentiary hearing on Defendant's Motion to Suppress Evidence. The government presented two witnesses on the stop and search of the truck: Deputy Sheriff Raymond Pracht, of the Phelps County, Missouri, Sheriff's Department, and Robert Gailey, the driver of the truck. At the hearing, all parties were represented by counsel who presented and argued the issues skillfully and effectively.
On November 21, 2005, Defendant filed a Supplemental Brief in Support of Motion to Suppress (Document No. 24), to which the government responded on December 14, 2005 (Document No. 25).
The testimony from the suppression hearing has not been transcribed to date. However, the Court is prepared to issue its Opinion based upon the testimony and evidence presented at the suppression hearing, the applicable law, and the Court's notes and recollection.
On July 17, 2005, Deputy Sheriff Raymond Pracht ("Pracht") of the Phelps County, Missouri, Sheriff's Department, was in uniform, assigned to criminal interdiction, and was working the Interstate 44/ Sugar Tree Road Interchange. Several hundred yards before the Sugar Tree Road Interchange, the county police had posted signs on the highway, which advised that there was a police checkpoint stop ahead. Pracht testified, however, on cross examination that this was a ruse as there was no actual checkpoint stop ahead. Pracht also testified that the "ruse" was not intended just to find drug traffickers; that the police have discovered stolen cars and abducted children during the use of these ruse operations.
Pracht was alone in his car parked on a private service road, near the top of the exit ramp off the interstate. From his vantage point, the interstate was not too visible, but he could see all cars as they exited off the highway and approached the intersection.
Pracht saw a black extended cab GMC truck exit off I-44, approach the top of the exit ramp, roll through the stop sign, and turn right. Pracht then left his position and pulled the truck over for failure to stop at the stop sign, a traffic violation. While still in his car, Pracht radioed in the license plate number on the truck and called dispatch. He then exited his car and approached the truck. The driver of the truck, Robert Gailey ("Gailey"), remained in the cab.
Pracht explained to Gailey why he pulled him over, directed Gailey to get out of the truck, and then obtained from Gailey his drivers license, registration and insurance information. According to Pracht, Gailey admitted to running the stop sign and apologized. Gailey told Pracht that he had exited the highway in order to get a map. Pracht thought this explanation was unusual because the Sugar Tree interchange is isolated with no lights, stores or gas stations in either direction.
Gailey also told Pracht that he was coming from Tucson, Arizona, and going to Pittsburgh, Pennsylvania. Pracht testified that Gailey appeared to be nervous. He would not make eye contact; he was licking his lips; and his hands were visibly shaking. Pracht also noted that Gailey gave inconsistent statements about his employment. For example, Gailey told Pracht that he was unemployed and had been in Tucson looking for work. However, when Pracht asked who the truck was registered to, Gailey responded that the truck was registered and owned by "his boss."*fn1
Based on his observations, Pracht suspected that Gailey was involved in criminal activity. Gailey denied having any drugs in the truck.
During the time that Pracht was talking to Gailey, a canine officer arrived at the scene. Pracht testified that the canine officer works assignments with the deputy sheriffs and serves as a "backup" for safety. Pracht could not remember whether the canine officer arrived at the ...