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United States v. Miller

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

December 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
HERBERT MILLER, JR., Defendant.

          ORDER AND RECOMMENDATION

          DAVID D. NOCE, UNITED STATES MAGISTRATE JUDGE

         Before the court are the pretrial motions of the parties that were referred to the undersigned United States Magistrate Judge under 28 U.S.C. §636(b). The motions pending before the Court are those by defendant Herbert Miller, Jr., to suppress evidence (Docs. 15 and 23) and by the United States for a determination by the Court of the admissibility or not of any arguably suppressible evidence (Doc. 16). An evidentiary hearing was held on September 18, 2019.

         Upon consideration of the evidence adduced during the hearing and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law:

         FACTS

         1. On April 25, 2019, during the afternoon, Metropolitan St. Louis Police Officer Matthew Tesereau was in a marked police car on patrol with Officers Michael Flatley and Chad Cross in the Penrose neighborhood of the City of St. Louis. At that time Tesereau was a member of the SWAT team of officers assigned to patrol the high crime areas of the City, which included the Penrose neighborhood.[1] All three officers were then in uniform. By that time in his career, Officer Tesereau had participated in many traffic stops. The police vehicle used on this date did not have a dash camera.

         2. Officer Tesereau drove the police vehicle, with the other officers as passengers, south on Fair Avenue toward Penrose Street. As he drove the police car south toward Penrose, Tesereau clearly observed a red Chevrolet Monte Carlo automobile being driven north on Fair, make a left turn in view of the police onto westbound Penrose without using a turn signal. When he arrived at the intersection of Fair and Penrose, Tesereau looked west on Penrose and saw that the Monte Carlo had already almost reached Redbud Avenue two blocks to the west. To travel that far in such a short period of time, he believed from his experience that the auto had to have been driven at a high rate of speed in an effort to elude the officers. In coming to this conclusion, Officer Tesereau did not use any speedometer or other device to monitor the speed of the Monte Carlo.

         3. Officer Tesereau then saw the red Monte Carlo turn right onto Redbud, again without using the turn signal. Still believing the red Monte Carlo was eluding the police car, Officer Tesereau quickly drove west to Redbud. When he got to Redbud, Tesereau saw the red vehicle on Redbud, again without its signal being used, pull to the curb and park behind a vehicle about three-fourths down the block, [2] in front of but a short distance south of 4258 Redbud. See Gov. Exs. A (map) and B (photo). Up to this point, neither the police vehicle's emergency lights nor its siren had been used. Tesereau waited for the red Monte Carlo to finish parking. He then pulled the police car immediately behind it. After he did so, Officer Tesereau activated the emergency lights and the air horn siren to get the attention of the driver.[3] Because the Monte Carlo was now parked right behind another vehicle, the officers knew it could not then easily be driven away from them. The driver remained in the vehicle.

         4. Next, from his driver's seat in the police car, Officer Tesereau saw the driver of the Monte Carlo make a frantic, quick move with his right shoulder up and down towards the center console and driver's seat area of the vehicle.[4] Tesereau did not see any object that the driver might have been handling. Tesereau told the other officers about these movements of the driver in the vehicle.

         5. Officer Tesereau immediately got out of the police car and walked to the driver's side door of the Monte Carlo. The other officers also got out of the police vehicle and positioned themselves on the passenger's side of the Monte Carlo to provide cover or protection for Tesereau. At the driver's window, Tesereau told the driver the reason for the stop, i.e. the turns the car made without the required signals. The driver immediately apologized. He said he had just gotten off work and was trying to get home. Officer Tesereau asked the driver for his license and insurance, which were produced. He also showed the officer his St. Louis City Forestry Department employment identification. During the conversation, Tesereau saw the driver's heart pounding, even under his shirt; he saw that the driver's neck vein was pulsing heavily; and, as the driver handed his driver's license to the officer, Tesereau saw that his hands were shaking. After receiving the driver's license and insurance document, Officer Tesereau got back into the police vehicle. The other two officers remained where they were stationed as cover officers, while Tesereau ran the license.

         6. In the police vehicle, officer Tesereau conducted a computer enquiry about the driver, identified as Herbert Miller, Jr. The computer enquiry reported that Miller had a lengthy violent history, that he had no active warrant, and that he was then on federal supervision for weapons offenses. At this time, Officer Tesereau knew that the 4200 to 4500 blocks of Redbud is a very violent area; he had made many arrests in this area for state and federal gun and drug law violations; and he knew there had been many gangs feuding and retaliating there.

         7. After receiving the computer report, Officer Tesereau returned to the red Monte Carlo and told the officers he was going to ask the driver to step out of the vehicle. Tesereau asked Miller to step out of the vehicle and he did so. Tesereau had Miller step to the rear of the Monte Carlo.

         8. Next, Officer Tesereau orally advised Miller of his constitutional rights to remain silent and to counsel. Miller acknowledged and stated he understood these rights. Miller did understand these rights. Tesereau told Miller about the furtive movements he made in the vehicle. Tesereau stated to Miller that, based on Miller's history of being a convicted felon then on supervision for a weapons offense, he believed Miller had concealed a firearm in the vehicle. At this time, Miller was not in handcuffs and none of the officers had drawn a firearm. Tesereau then asked Miller if there was a gun in the car. In response, Miller slowly put his head down and stated a slow, "Yes," then quickly said, "No. There's no gun in my car. Why are you stopping me? Why did you pull me over?" This conversation was loud enough for the other officers to hear.

         9. Next, Officer Flatley went to the driver's door of the Monte Carlo, opened it, and in the center console located and seized a loaded semi-automatic Glock .45 caliber handgun. Flatley returned with the gun in his hand to where Tesereau was standing with Miller. Officer Tesereau immediately placed Miller under arrest and he told Miller it was for unlawfully possessing a firearm as a felon. Without being expressly asked a question about whether the gun was his, Miller immediately stated that the vehicle and the gun were not his. Miller was placed in the police vehicle with Officer Flatley. Tesereau saw persons standing on the porch of the nearby residence at 4258 Redbud. He learned they were family members of Miller. As a courtesy, Tesereau then told them why Miller had been arrested and why he had been pulled over.

         10. Because the red Monto Carlo had been driven by Miller who was then under arrest, the officers had the car towed and impounded, even though it was parked very near Miller's residence with family members around. Later, Officer Tesereau searched the impounded Monte Carlo and found and seized Miller's registration and title receipt for the vehicle; contrary to Miller's earlier assertion, these documents indicated the vehicle belonged to Miller. See Gov. Ex. D.

         11. Officer Tesereau issued three uniform traffic citations to Miller for the three failures to signal. See Gov. Ex. C.

         DISCUSSION

         Defendant has moved to suppress the physical evidence seized by the officers and his statements. The issues indicated by the facts are discussed seriatim.

         (1) ...


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