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United States v. Westfall

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

December 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LESLIE WESTFALL, Defendant.

          OPINION, MEMORANDUM AND ORDER

          HEN IY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Report and Recommendation of Magistrate Judge John M. Bodenhausen, addressing Defendant Westfall's Motion to Suppress [Doc. No. 77]. On August 8, 2019, an evidentiary hearing was held. In his November 1, 2019 Report and Recommendation, Judge Bodenhausen recommended that the Defendant's motion be denied in part and granted in part. Defendant has filed a written objection to this recommendation. For the reasons set forth below, the Court adopts Judge Bodenhausen's recommendation.

         LEGAL STANDARD

         When a party objects to the magistrate judge's report and recommendation, the Court must conduct a de novo review of the portions of the report, findings, or recommendations to which the party objected. See United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (citing 28 U.S.C. § 636(b)(1)(A)). Where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law, the Court may reconsider the matter. 28 U.S.C. §636(b)(1)(A). Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court reviews the findings of the magistrate de novo. The Court has reviewed the entire record for this purpose.

         FACTS AND BACKGROUND

         In his Report and Recommendation, Judge Bodenhausen found that gun and drug evidence seized should not be suppressed because the police had reasonable suspicion to stop and frisk Defendant when they encountered him outside 1431 Wishert Place on October 4, 2018. Judge Bodenhausen also found that none of Defendant's statements to Officer Njeri should be suppressed because those statements were spontaneous and not made in response to any police interrogation or the functional equivalent of interrogation. Finally, Judge Bodenhausen found that Defendant's statements to Officer Voss regarding his gun possession should be suppressed but that all other statements to Officer Voss should not be suppressed.

         Defendant objects generally to the Report and Recommendation, relying on the arguments set forth in his original motion to suppress and supplemental memorandum in support of the motion to suppress. Defendant argues that officers had no reasonable suspicion to stop him, that officers had no probable cause to arrest him and perform a search incident to arrest, and that his statements to Officers Njeri and Voss were made in response to the functional equivalent of questioning before he had been read his Miranda rights. Defendant does not dispute the facts and hearing testimony as detailed in Judge Bodenhausen's Report and Recommendation. The relevant facts are briefly summarized as follows:

         On December 12, 2018, the Grand Jury charged Defendant with: conspiracy to distribute marijuana, in violation of 21 U.S.C. § 846 (Count One); possession with the intent to distribute marijuana, in violation of 21 U.S.C. § 841 (Count Two); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Three); and possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. 922(g) (Counts Five and Six).

         The charges stem from the events that occurred on October 4, 2018 in the 1400 block of Wishart Place in St. Louis County, Missouri. St. Louis County police officers were conducting undercover surveillance in the area as a result of anonymous citizen complaints about drug-related activity. Police officers Brown and Dooley were observing 1431 Wishart Place from an unmarked car and reporting their observations to other officers over police radio.

         During the surveillance, Officer Brown observed the following. A black Cadillac STS with heavily-tinted windows circled the area and eventually stopped in front of 1431 Wishart Place. Then, a tan Ford Explorer pulled up next to the Cadillac. The driver of the Cadillac appeared to exchange something with the front seat passenger of the Ford. After the exchange, the Ford departed the area. Brown testified that based on his training and experience, he suspected that the Cadillac and the Ford had engaged in a hand-to-hand drug transaction because the exchange appeared to be more than a handshake, although he could not see what was exchanged, and because the Ford and the Cadillac were positioned for a quick get-away. At the same time, there were several other people standing in front of 1431 Wishart Place, with some people looking up and down the street. Brown testified that when an unidentified male looked up the block toward Officer Brown's unmarked vehicle, two males began walking from 1431 Wishart Place toward the unmarked vehicle containing Officers Brown and Dooley, with one man approaching each side of the vehicle. The person approaching the passenger side aggressively asked, “What the f**k you all doing around here?” Brown, concerned about the men's confrontational manner and point of advantage, drove away, at which point marked and unmarked police vehicles entered the area.

         Officer Roy Njeri performed a back-up role in the October 4, 2018 surveillance and was one of the nearby officers monitoring Brown and Dooley's radio communications. Aware of the suspected hand-to-hand drug transaction and the potential danger facing Officers Brown and Dooley, Njeri and another officer entered Wishart Place in a marked police vehicle from the south side. Njeri then observed two people exiting the black Cadillac in front of 1431 Wishart Place “in haste” and approaching the residence. Njeri approached the passenger, who was later identified as Defendant Leslie Westfall, while the other officer approached the driver (later identified as co-defendant Dante Campbell.) Njeri identified himself as a police officer and instructed Westfall to stop. Njeri thought Westfall seemed hesitant, which lead Njeri to suspect that Westfall was thinking about fleeing. Westfall then turned toward Njeri. As Westfall turned, Njeri saw the butt of gun hanging out of one of Westfall's front pants pockets. Njeri drew his own gun and ordered Westfall to raise his hands. Westfall complied. Njeri handcuffed Westfall and retrieved the gun from Westfall's pocket. The gun was loaded with 16 bullets. Westfall told Njeri that Njeri was lucky he drew his gun first because Westfall might have otherwise shot Njeri. Westfall physically complied with Njeri while also yelling and cursing at the police. While Westfall was physically secured, the police conducted an inquiry and learned that he had a prior felony conviction. Westfall was then formally arrested. Njeri also recovered marijuana and pills that were later determined to contain Xanax from Westfall's pants. (It is unclear whether those items were recovered when Njeri recovered the gun or after Westfall's arrest.) Njeri testified that Westfall stated that the suspected drugs were not his. Njeri transported Westfall to the police station, during which Westfall's demeanor was “up and down.” According to Njeri, Westfall repeated during transport that Njeri was lucky that he had his gun drawn and told Njeri that he kept a gun for protection. Njeri testified that he never questioned Westfall and never read him any Miranda warnings. Njeri testified that he might have thanked Westfall for not shooting him, but clarified that if he did, it was in response to Westfall's statement that Njeri was lucky that Westfall did not shoot him.

         Officer Trevor Voss was the officer in charge of the teams conducting surveillance in the area of the 1400 block of Wishart Place on October 4, 2018. Voss also monitored the activity on Wishart Place via a police radio. When Voss arrived on the scene, Njeri was already addressing Westfall. After Westfall was arrested and placed in a police vehicle, Voss “could hear him yelling from outside the police car.” Voss testified that, “I know what it's like to transport people that are combative or loud or aggressive, so I got him out of the car. I put my hand on his shoulder and told him I appreciated the fact that they didn't shoot at us when we arrived.” In explaining these actions, Voss testified that there had been many people at the scene prior to the arrest and that yelling at a scene could attract other people, affecting officer safety and the investigation. Voss testified that Westfall calmed down after Voss spoke to him. Voss testified that Westfall then made the following statements: that he had the gun “for his own protection;” that his father had recently committed suicide; and, that his landscaping truck had broken down, so he was selling marijuana as a “stopgap until he could get [the] landscape business up and running.” Voss testified that during this time, he did not say anything other than thanking or nodding at Westfall. Voss thanked Westfall again and placed him back in the police car. Voss did not provide any Miranda warnings to Westfall prior to speaking to him. Voss testified that he did not intend to ask Westfall any questions or elicit a verbal response, but was trying to achieve a behavioral response from Westfall, namely to calm him down. After his arrest and transport to a jail, Westfall was provided Miranda warnings but declined to make any statement to the police.

         Judge Bodenhausen credited the testimony of Officers Brown, Njeri, and Voss. As noted above, the facts are not in contention here, and Judge ...


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