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United States v. Calmese

United States District Court, E.D. Missouri, Eastern Division

October 7, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
KHELBY L. CALMESE, Defendant.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE

         In accordance with the Memorandum filed herein, IT IS HEREBY RECOMMENDED that Defendant's Motion to Suppress Evidence and Statements (Docs. 78 & 90) be DENIED.

         The 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).

         MEMORANDUM

         The 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).[1]

         Background and Procedural History

         On 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.

         On July 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.

         Based 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:

         I. Findings Of Fact

         Unless 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 credible.

         On the 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.

         St. 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.

         At that 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 ...


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