United States District Court, E.D. Missouri, Eastern Division
ORDER AND RECOMMENDATION
D. NOCE, UNITED STATES MAGISTRATE JUDGE
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.
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:
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. 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.
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.
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,  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. 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
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. 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.
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.
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
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.
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.
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.
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.
Officer Tesereau issued three uniform traffic citations to
Miller for the three failures to signal. See Gov.
has moved to suppress the physical evidence seized by the
officers and his statements. The issues indicated by the
facts are discussed seriatim.