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United States v. Kelley

December 5, 2006


The opinion of the court was delivered by: J. Leon Holmes United States District Judge


Harold Jerome Kelley and Jackie E. Porchay have been indicted for conspiring to distribute cocaine hydrochloride and for money laundering. The indictment stems from a traffic stop in Texas during which policemen found crack cocaine, a crack pipe, and more than $200,000 in cash in a car owned by Porchay, driven by Kelley, and occupied by one passenger in addition to Kelley. Law enforcement personnel subsequently searched a residence shared by Kelley and Porchay. Kelley filed a motion to suppress the evidence that resulted from the traffic stop, while Porchay has filed two motions to suppress the evidence that was seized during the search of her residence. In addition, both Kelley and Porchay have also filed motions for bills of particulars. The Court held an evidentiary hearing on Kelley's motion to suppress. For the following reasons, all of the defendants' motions are denied.


A. The Traffic Stop

At approximately 7:45 in the morning of February 15, 2006, Corporal Cary Barnett, a highway patrolman in Texas, stopped a white 2001Chevrolet Monte Carlo that he had seen speeding westbound toward Dallas on Interstate 30. Kelley was driving the car, which was owned by Porchay. Kelley was accompanied by Teresa Speed.

Barnett has been employed for more than eleven years with the Texas Department of Public Safety in the Highway Patrol Division at its office in Sulphur Springs, Texas. During his tenure with the highway patrol, Barnett has made thousands of traffic stops. According to Barnett, the average traffic stop lasts approximately fifteen minutes. Barnett testified that Dallas is a known drug activity area for drug couriers. He testified that drug couriers commonly travel west through Sulphur Springs on I-30 with money to purchase drugs in Dallas.

A video camera on Barnett's patrol car recorded the stop. According to the clock on the video camera, the stop began at 8:39.*fn1 As Barnett pulled the vehicle over, he noticed unusual movement by the occupants of the vehicle. They appeared to be reaching in the back seat and perhaps under the seat. Barnett exited his patrol car, approached the vehicle from the passenger's side, identified himself, and explained the reason for the stop. Barnett then told Kelley, the driver of the vehicle, to exit the vehicle and move to the grass beyond the highway's shoulder so that they could communicate better.

When Kelley was outside, Barnett asked him for his driver's license and proof of liability insurance. Barnett examined Kelley's driver's license and insurance card and then questioned him. Barnett asked Kelley what he did for a living. Kelley responded that he delivered produce in Conway for his uncle's business. Barnett asked Kelley where he had come from and where he was going. Kelley responded that he had come from Little Rock and was going to visit Fred Coleman and his wife Dominique Coleman.

At that point Kelley started to appear abnormally nervous. Barnett continued to question Kelley, asking him the Colemans' street address. Kelley responded that, while the Colemans lived in Mesquite, Texas, he did not know their street address. Barnett then walked over to speak to Speed. Barnett asked her the same question about their destination. She responded that they were going to visit two of her friends, Karen and Carolyn. When Barnett asked where her friends lived, Speed became nervous and defensive and would not answer. Barnett asked her several times who she was. Speed repeatedly refused to identify herself.

Barnett returned to Kelley at 8:43, according to the video camera's clock, and asked Kelley if the vehicle belonged to him. Kelley answered that it belonged to his girlfriend. Barnett asked Kelley if his passenger was his girlfriend. Kelley responded that the passenger was the mother of his baby, not his girlfriend. Barnett asked Kelley if he had ever been arrested for anything. Kelley responded that he had been arrested for a controlled substance offense. Barnett went to his patrol car and ran a check on Kelley's criminal history. At 8:47, the check return revealed that Kelley had been arrested for a controlled substance offense and evading arrest.

Barnett returned to where Kelley was standing and asked Kelley several times if he had anything illegal in the vehicle. Each time, Kelley turned his head to avoid eye contact with Barnett before responding that he did not. Barnett asked Kelley if he would consent to a search of his vehicle. Kelley responded that he would not consent. Barnett then decided to request a canine patrol unit to sniff Kelley's vehicle. Barnett called for a canine unit at approximately 8:50. At approximately 8:52, Barnett was told that a canine patrol unit had been dispatched to his location and would arrive in 25 to 30 minutes. The canine unit was approximately 37 miles away from the location of the stop.

While waiting for the canine patrol unit to arrive, Barnett again questioned Kelley and Speed about where they were going, and he recorded their answers. Barnett then asked Kelley what he had in his front pants pocket. Kelley pulled out a large roll of cash, which was later determined to be $1,720. Barnett asked Kelley why he was carrying so much money in his pocket. Kelley replied that they were going shopping for clothes and Valentine's Day presents. Barnett observed that Kelley was becoming more nervous. Kelley was constantly moving his hands and feet, fidgeting, rubbing and scratching himself, excessively swallowing and spitting, giving uncooperative or vague answers to Barnett's questions, and attempting to evade questions. Barnett asked Kelley several times about the name of Kelley's passenger, but Kelley refused to cooperate. Eventually, Speed relented and gave Barnett her name.

At 9:22, Trooper Jason Edward Graham arrived with the drug dog. After briefly conferring with Graham, Barnett had Speed exit the vehicle while Graham walked the drug dog around the vehicle at 9:25. The dog alerted on the right passenger side of the vehicle at 9:26. The troopers then handcuffed Kelley and searched the vehicle. They found, among other things, a crack pipe and crack cocaine in Speed's purse; $2,600 ...

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