United States District Court, E.D. Missouri, Eastern Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
accordance with the Memorandum filed herein, IT IS HEREBY
RECOMMENDED that Defendant's Motion to Suppress Evidence
and Statements (Docs. 78 & 90) be DENIED.
parties are advised that they have fourteen (14) days in
which to file written objections to this report and
recommendation pursuant to 28 U.S.C. §636(b)(1), unless
an extension of time for good cause is obtained, and that
failure to file timely objections may result in a waiver of
the right to appeal questions of fact. See Thompson v.
Nix, 897 F.2d 356 (8th Cir. 1990).
above matter was referred to the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. §636(b) for
pretrial matters. Currently pending before the Court is
Defendant's motion to suppress evidence and statements
(Docs. 78 & 90).
and Procedural History
January 20, 2015, St. Louis City Police officers arrested
Defendant Khelby Calmese, searched his residence, and seized
drugs, firearms, currency and other items without a warrant.
Calmese was subsequently charged in an indictment with being
a felon in possession of one or more firearms, in violation
of 18 U.S.C. § 924(g) (Count One); possession with
intent to distribute heroin; and possession with intent to
distribute cocaine base (“crack”), in violation
of 21 U.S.C. § 841 (Counts Two and Three, respectively).
Calmese has moved to suppress the physical evidence seized
and statements he made at the time of his arrest on grounds
that they were obtained in violation of his rights under the
Fourth and Fifth Amendments. The United States has resisted
the motion on grounds that the arrest was lawful; Calmese
voluntarily made statements after being advised of his
Miranda rights; and Calmese consented to a search of
the apartment and his car which yielded the physical evidence
Calmese is seeking to suppress.
22, 2016, I held an evidentiary hearing on Calmese's
motion. St. Louis City Police Detectives James Wilcox and
Justin Robben testified on behalf of the United States. The
United States also submitted a consent-to-search form. (Govt.
Exh. 1). Calmese did not present any witnesses or exhibits at
the evidentiary hearing. At the conclusion of the hearing,
defense counsel made an oral motion for time to file a post
hearing brief. The undersigned granted that motion and, at
counsel's request, ordered a written transcript of the
evidentiary hearing to assist in preparing the report and
recommendation (Doc. 83). A transcript of the evidentiary
hearing was filed on August 18, 2016, (Doc. 84). Defendant
and the United States filed post-hearing briefs on September
9, 2016. (Docs. 90 & 91). Thus, Defendant's motion to
suppress is fully briefed and ready for a ruling.
upon the evidence adduced at the hearing on the motion to
suppress, as well as a review of the transcript of the
hearing in this matter, and the briefs of the parties, the
undersigned makes the following findings of fact and
conclusions of law:
Findings Of Fact
otherwise noted, the following factual findings are based on
the testimony of St. Louis City Police detectives James
Wilcox and Justin Robben. At the time of the hearing, Wilcox
and Robben were both veteran St. Louis City Police detectives
with experience investigating violent crimes as part of a
task force and/or special operations within the City of St.
Louis. I found the testimony of both detectives to be
evening of January 20, 2015, Detective Wilcox and another
detective, Joe Hill, were patrolling a South City
neighborhood (“Dutchtown”) in an unmarked police
car when they observed Calmese's car, a 2000 Buick Regal,
run a stop sign and make a left turn without signaling.
Calmese then began driving his car at a relatively high rate
of speed and in what appeared to be an erratic manner by
making abrupt turns. As a result, the officers called for
assistance in conducting a vehicle stop.
Louis City Police officers Robben and Slama answered the call
for assistance and were provided a description of the
vehicle. When they first spotted Calmese's car, they
observed it turn onto Gasconade, quickly turn onto Michigan,
and then abruptly pull over to the curb. Before the officers
could activate their lights and conduct a traffic stop,
Calmese got out of the car and began walking toward a nearby
apartment building. Calmese got out of the car in such a
hurry that he failed to close the driver's side door or
manually turn off his headlights.
point, Detective Robben got out of his car, shined his
flashlight on Calmese, and began speaking to him. He advised
Calmese that he was a police officer, and that he wanted to
talk to him about how he was driving. However, Calmese
continued walking away. Detective Robben told Calmese to
“stop walking” but he kept walking away.
Detective Robben noticed that Calmese was dragging his right
foot and holding his waistband as he walked toward the
apartment building. Believing that Calmese might be armed,
Detecive Robben drew his weapon and began to order Calmese to
show his hands. When Calmese was about half way to the
apartment building, Calmese removed a firearm from his
waistband and started running toward the apartment building.
Detective Robben yelled “Gun!” to warn the other
officers that Calmese was armed. He pursued Calmese across
the street but, as a precaution, kept a distance of ...