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United States v. Burnett

September 13, 2007

UNITED STATES OF AMERICA
v.
DAVID BURNETT



The opinion of the court was delivered by: Susan Webber Wright United States District Judge

ORDER

On August 24, 2007, Defendant David Burnett ("Burnett") filed a second motion to suppress evidence (docket entry #31), and the United States filed a response in opposition (docket entry #32). The Court held a hearing on the motion on September 4, 2007 and issued an oral ruling from the bench denying Burnett's motion. This order reduces the Court's findings to writing.

I.

Based on evidence received during the hearing on Burnett's first motion to suppress held on March 29, 2007, the Court previously made the following findings of fact:*fn1

1. On January 18, 2006, at approximately 9:10 a.m, Burnett was traveling east on Interstate 40 in Lonoke County, driving a 2005 Lincoln Navigator with a California license plate.

2. Arkansas State Police Corporal Victor D. Coleman ("Coleman") observed Burnett's vehicle cross the right fog line into the right shoulder and then re-enter the interstate. Believing that Burnett had committed a lane violation, Coleman activated his blue lights and stopped Burnett.

3. Coleman requested Burnett's driver's license and registration and directed him to exit and stand behind the Lincoln Navigator. In response to questioning, Burnett told Coleman he had rented the Lincoln Navigator and was traveling home to Tennessee.

4. Burnett stated that he had been in California shopping for antique car parts. He also stated that he was accompanied by another vehicle that left California ahead of him. Burnett was unable to produce a vehicle rental agreement, and he told Coleman that it might be in one of his bags or in the vehicle accompanying him.

5. Coleman asked Burnett whether he had ever been arrested, and Burnett answered, "No." Coleman asked Burnett whether the contents of the vehicle belonged to him, and Burnett answered, "Yes." Coleman then asked whether Burnett had any drugs or guns in the vehicle, and Burnett answered, "No."

6. Next, Coleman sought Burnett's consent to search by asking, "Can I search the vehicle? Is that okay with you?" or "I am going to take a look in the car if that's okay with you." Coleman testified that Burnett answered "yes" in response to his request to search, and Burnett testified that he answered, "All right, okay." Additionally, the undisputed evidence shows that Burnett also responded with an affirmative hand gesture.

7. After Burnett's affirmative responses to Coleman's request to search, Coleman opened the passenger-side door and found an empty ammunition magazine in plain view on a console between the front seats. After finding the magazine, Coleman handcuffed Burnett for safety reasons and searched the back of the vehicle, where he found a locked money bag. Coleman asked Burnett if he had a key to the bag, and Burnett responded, "Not on me; I think it's in the other car."

8. Coleman placed Burnett in the patrol car and contacted Blue Lightening, an intelligence resource. After making initial contact with Blue Lightening, Coleman left the car, cut open the money bag with a knife, and discovered a vehicle rental agreement and methamphetamine.

9. Coleman informed Burnett, who was sitting in the patrol car, that he was under arrest for possession of an illegal substance. Coleman then re-entered the patrol car and resumed his conversation with a Blue Lightening operator. Among other things, Coleman told the operator that Burnett had consented to the search. Coleman, and another officer who arrived on the scene, ...


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