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United States v. Gilmore

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

October 21, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
AARON GILMORE, Defendant.

          SECOND SUPPLEMENTAL ORDER AND RECOMMENDATION FOLLOWING RETURN OF SUPERSEDING INDICTMENT

          DAVID D. NOCE UNITED STATES MAGISTRATE JUDGE

         Before the court is the motion of defendant Aaron Gilmore to suppress evidence and statements (ECF No. 107), which was referred to the undersigned Magistrate Judge under 28 U.S.C. § 636(b). On September 7, 2016, the court conducted an evidentiary hearing on the motion.

         Defendant Gilmore is charged by superseding indictment with possessing methamphetamine on January 30, 2015, with the intent to distribute it (Count 1); with possessing five or more grams of methamphetamine on May 29, 2015, with the intent to distribute it (Count 2); and with possessing one or more firearms on May 29, 2015, after having been convicted of one or more felony offenses (Count 3).[1] Defendant Gilmore seeks the suppression of the fruits of the search of a motor vehicle on January 30, 2015, and the suppression of the statements he made after that vehicle was stopped. (ECF No. 107.)

         From the evidence adduced at the evidentiary hearing held on September 7, 2016, the undersigned makes the following findings of fact and conclusions of law:

         FACTS

         1. On January 30, 2015, at approximately 11:30 a.m., near the intersection of Main and Fifth Streets in St. Charles, Missouri, Nicole Ellis was driving her green Ford Mustang convertible automobile. Aaron Gilmore, Ms. Ellis's boyfriend of approximately ten years (“off and on”) was in the front passenger seat as they were leaving the parking lot of the Ameristar Casino. Ellis and Gilmore had been staying together at the casino hotel. As Ellis drove the Mustang up a hill toward the stoplight at Main and Fifth, a police car activated its red emergency lights behind her. Ellis drove a short distance into a gas station lot and stopped.

         2. In the gas station lot, at approximately 11:40 a.m., St. Charles, Missouri, Police Officer Christopher Duke walked up to the driver's door of the Mustang. He told Ms. Ellis that she had driven 33 miles per hour in a 25 miles-per-hour zone. When he asked her for her insurance document and her and her passenger's identifications, Ms. Ellis became belligerent, but ultimately produced her driver's license and that of Gilmore. Officer Duke had had no prior involvement with Ellis, Gilmore, or the Mustang.

         3. Officer Duke took the drivers' licenses back to his police vehicle. When he returned to the Mustang and Ellis, she was unable to produce any insurance documentation and she admitted that she had no insurance. She told him that her car was so beat up that she did not insure it. Next, at approximately 11:56 a.m., Officer Duke arrested Ellis for two driving violations: speeding (citing City of St. Charles municipal ordinance § 325.020) and failure to have a valid insurance identification card (citing City of St. Charles municipal ordinance § 360.070). (Def. Exs. D-10, D-11). He decided to arrest Ellis to ensure her appearance in court, because of her belligerent behavior at the beginning of the stop and her disregard for having insurance.[2]

         4. Immediately after he arrested Ellis, Officer Duke called to have the Mustang towed to an impound lot. He did not ask Ellis if she wanted to leave the car at the gas station, because he had seen that the Mustang's convertible cloth top was ripped and its rear window was broken. The officer did not want to leave the Mustang on the public lot in such an insecure condition. He also did not ask her whether she preferred to leave the Mustang in Gilmore's possession, because it was uninsured and the officer did not want it driven in that condition.

         5. Officer Duke then directed Gilmore to exit the vehicle, which he did. Duke then conducted an inventory search of the Mustang's front passenger compartment. There he found much trash and miscellaneous items. Around 12:00 noon, at the gas station, Officer Duke filled out a Crime Inquiry and Inspection Report/Authorization to Tow form, Form 4569. On the form he inventoried items of value he had found in his search of the car's passenger compartment: a cell phone, a digital tablet, and a purse. (Def. Ex. T-1.) During this search, Officer Duke also found many small plastic bags consistent with narcotics trafficking, a digital scale under the passenger seat where Gilmore had been sitting, and a glass smoking pipe with burn marks and residue in a backpack on the back seat. (Gov. Exs. 3, 4, 5.)

         6. Officer Duke told both Gilmore and Ellis about the items he found in the vehicle. He orally advised them of their constitutional rights to remain silent and to counsel, which they waived orally. Both Ellis and Gilmore denied ownership of the items found in the vehicle. Because Ellis was already under arrest, and because Gilmore also had access to the contraband in the vehicle, Officer Duke arrested Gilmore for possession of drug paraphernalia and for a seatbelt violation. Duke also considered Ellis a suspect regarding the items found under Gilmore's seat because they were within her reach.

         7. Shortly after the arrests, more officers arrived at the scene, including St. Charles Police Sergeant Ray Juengst, who had heard about the arrests on the police radio. Sgt. Juengst was then the Commander of the St. Charles Drug Task Force. Officer Duke told Sgt. Juengst what he had found in the Mustang. For this reason and because the licensed operator of the Mustang had been arrested, Juengst directed Duke to have the vehicle towed to the police station and to complete a more thorough, photographic inventory there.

         8. The Mustang was then towed to the Saint Charles, Missouri, police station and fully searched. Its contents were inventoried with photographs. Near the center console of the car, officers found an eyeglasses case containing five clear bags of suspected methamphetamine. Officers also found and photographed the personal belongings of Gilmore and Ellis throughout the car and in the trunk.[3]

         9. On January 30, 2015, the St. Charles Police Department policy for Towing At Arrest Scenes was similar or identical to the following:

Whenever a person in charge or in control of a vehicle is arrested, it is the policy of this department to provide reasonable safekeeping by towing the arrestee's vehicle subject to the exceptions described below. The vehicle, however, shall be towed whenever it is needed for the furtherance of an investigation or prosecution of the case, or when the community caretaker doctrine would reasonably suggest that the vehicle should be towed (e.g., traffic hazard, high crime area).
Situations where consideration should be given to leaving a vehicle at the scene or turning a vehicle over to another in lieu of towing, provided the vehicle can be lawfully parked and left in a reasonably secured and safe condition, include:
. Traffic related warrant arrest.
. Situations where the vehicle was not used to further the offense for which the occupant was arrested or is not subject to forfeiture proceedings.
. Whenever the licensed owner of the vehicle is present, willing and able to take control of any vehicle not involved in criminal activity.
. Whenever the vehicle otherwise does not need to be stored and the owner requests that it be left at the scene or turned over to another, the handling employee shall complete a Tow Option SCPD Form 340 including signature of [Arrestee]/Owner/Driver[.]

(Def. Ex. P-502 at 3, Saint Charles Police Department Policy Manual, § 502.5.)

         10. At the time of these events, the St. Charles Police Department policy for Vehicle Inventory was similar or identical to the following:

All property in a stored or impounded vehicle shall be inventoried and listed on the Crime Inquiry and Inspection Report/Authorization to Tow, Form 4569. This includes the trunk and any compartments or containers, even if they are closed and/or locked. Members conducting inventory searches should be as thorough and accurate as practicable in preparing an itemized inventory. These inventory procedures are for the purpose of protecting an owner's property while the owner is in police custody, to provide for the safety of officers and the public, and to protect the Department against fraudulent claims of lost, stolen or damaged property.
If the apparent potential for damage to a locked container reasonably appears to outweigh the protection of the items inside, other options to consider regarding locked containers include, but are not limited to, obtaining access to the locked container from the owner, placing the locked container into safekeeping or ...

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