United States District Court, E.D. Missouri, Eastern Division
E. JACKSON, UNITED STATES DISTRICT JUDGE
to 28 U.S.C. § 636(b), all pretrial matters in this case
were referred to United States Magistrate Judge Shirley
Padmore Mensah for determination and recommended disposition,
where appropriate. On October 7, 2016, Judge Mensah issued a
Report and Recommendation with respect to the motions filed
by defendant Khelby L. Calmese to suppress evidence and
statements. The defendant has now filed objections to the
recommendation that his motions be denied. The United States
has not filed a response and the time allowed for doing so
to 28 U.S.C. § 636(b)(1), the district judge is required
to make a de novo determination of the specified
proposed findings and recommendations of the magistrate judge
to which objection is made. Here, the Court has reviewed the
defendant's motions, the government's responses, and
the testimony and evidence presented at the suppression
Warrantless Arrest of Defendant
to the evidence, the police made a decision to stop the
defendant after they observed him failing to obey a stop
sign, failing to use his vehicle's turn signal, and
driving erratically and at a high rate of speed. The traffic
violations established probable cause for the stop. See
United States v. Gunnell, 775 F.3d 1079, 1083 (8th Cir.
2015) (police had probable cause to conduct a traffic stop
after observing defendant exceed the speed limit). Thus, the
police did not violate the defendant's rights by
approaching the defendant to investigate the traffic
before the police could effect a traffic stop, the defendant
engaged in conduct that was unusual under the circumstances
and that served to raise the officers' suspicions. He
abruptly parked and exited his car, leaving the door open and
the lights on, and began walking toward an apartment
building. When an officer approached and said he wanted to
talk to the defendant about his driving, the defendant
continued walking away. He did not stop walking even when
ordered to do so. The defendant then pulled out a firearm and
began running. He entered the apartment building, leaving the
door open and keys in the lock. Based on the defendant's
conduct, the officers had a reasonable, articulable suspicion
of criminal activity sufficient to justify an investigatory
stop. See Terry v. Ohio, 392 U.S. 1, 21 (1968);
United States v. Horton, 611 F.3d 936, 940 (8th Cir.
2010). It is immaterial that carrying a concealed firearm is
legal under Missouri law or that the police did not know that
the defendant was a convicted felon. It is the totality of
the defendant's conduct that justified the actions taken
by the police. See United States v. Linkous, 285
F.3d 716, 720 (8th Cir. 2002) (“Whether an officer has
reasonable suspicion to expand the scope of a traffic stop is
determined by looking at ‘the totality of the
circumstances, in light of the officer's
experience.'” [quoting United States v.
Dodson, 109 F.3d 486, 488 (8th Cir. 1997)]).
under Missouri law, the crime of resisting arrest is
committed when a person flees from a police officer
attempting to make a lawful arrest, stop or detention. Mo.
Rev. Stat. 575.150. Thus, the defendant's refusal to stop
to address the traffic violations when he was asked to do so
by a police officer established probable cause to believe
that he was committing a crime. See United States v.
Sledge, 460 F.3d 963, 966 (8th Cir. 2006) (there was
probable cause to arrest defendant for obstructing a peace
officer, in violation of Nebraska law, when defendant ran
from police during an investigatory detention).
Court concludes that the defendant's arrest did not
violate the Fourth Amendment.
evidence presented during the suppression hearing establishes
that the defendant was given the Miranda warnings
after being taken into custody by the police. See Miranda
v. Arizona, 384 U.S. 436, 470-72 (1966). The evidence
further establishes that the defendant acknowledged that he
understood his rights, he was not under the influence of
drugs or alcohol, and he was not threatened or otherwise
coerced to make a statement.
defendant argues that the absence of a signed, written waiver
of his rights impugns the credibility of the police officers.
However, nothing in Miranda or its progeny requires
that an effective waiver of rights be in writing. In
determining whether a statement should be suppressed, the
focus is on the voluntariness of the defendant's
statement. And voluntariness does not depend on whether the
waiver of rights was made orally or in writing.
Court concludes that the defendant's statements were
voluntarily made and no Fifth Amendment violation occurred.
Therefore, the statements will not be suppressed.
the defendant was given the Miranda warnings, he
signed a consent to search form giving the police permission
to search his vehicle and the apartment he entered. It is
undisputed that no threats, promises, or deceptive measures
were employed by the police to procure the defendant's
consent. Further, the form he signed clearly advised him of
his right to refuse to consent. Thus, the evidence
establishes that the defendant's consent to the search
was voluntary. The fact that the defendant was in custody at
the time he consented to the search does not vitiate the