United States v. Elburki
| Decision Date | 27 October 2022 |
| Docket Number | 19-00406-01-CR-W-RK |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. KAMEL MAHGUB ELBURKI, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
REPORT AND RECOMMENDATION
Pending is Defendant Kamel Mahgub Elburki's Motion to Suppress Evidence and Statement filed on December 15, 2021. Doc. 439. On January 25, 2022, the Government filed Suggestions in Opposition to Defendant's motion. Doc. 455. Defendant filed his reply on February 8, 2022. Doc. 469. For the reasons below, it is recommended that Defendant's motion be DENIED.
On September 30, 2020, the grand jury returned a superseding indictment[1] charging Defendant Kamel Mahgub Elburki with conspiracy to distribute 500 grams or more of methamphetamine and one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 (Count One); conspiracy to commit money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (B)(i)-(ii), and (h) (Count Two); carrying, possessing, using, brandishing, and discharging firearms in furtherance of a drug trafficking offense in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)-(iii) (Count Three); being a felon in possession of firearms and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Fourteen); and possession with intent to distribute 500 grams or more of methamphetamine and one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count Twenty-Five). Doc. 144.
There are two separate encounters at issue in Defendant's Motion to Suppress. See Doc. 439 at 1, 4-5 10-14. The first occurred on December 19, 2018, in Springfield, Missouri (hereinafter, “Springfield stop”), and the second happened on January 5, 2019, in Kansas City, Missouri (hereinafter, “Kansas City stop”). Id.; see also Doc. 144. Defendant argues both stops lacked probable cause and were improperly prolonged. Doc. 439 at 10-14. In addition, he contends law enforcement illegally towed his vehicle and improperly relied on the inventory search exception during both stops. Id. at 10-12.
On April 11, 2022, the undersigned held an evidentiary hearing on Defendant's Motion to Suppress. See Doc. 505; Doc. 508 (Transcript) (hereinafter, “Tr.”). Mr. Elburki was present and represented by counsel, S. Chase Higinbotham. Id. The Government was represented by Assistant United States Attorney Bruce Rhoades. Id. At the evidentiary hearing, five witnesses testified: (1) Brian Steen, (2) Dustin Sweet, (3) Nicholas Mittag, (4) Timothy Trost, and (5) Matthew Vaccaro. Id. And fifteen exhibits were admitted into evidence. Id.; see also Doc. 506. An additional oral argument was held on June 29, 2022. Docs. 528, 530.
Based on the evidence adduced at the evidentiary hearing, the undersigned submits the following findings of fact:
The Springfield Stop
1. On December 19, 2018, Officer Brian Steen with the Springfield, Missouri Police Department (“SPD”) observed a black Chevy Impala speeding.[2] Tr. at 6-7, 24. According to the
officer's handheld laser speed detection device, the Impala was traveling forty-eight miles per hour, but the speed limit was thirty-five. Tr. at 7, 24-27.
2. At 4:19 p.m., Officer Steen initiated a traffic stop of the Impala, and the vehicle pulled into a Break Time gas station and parked at a gas pump.[3] Tr. at 8-9, 24, 26-27; Gov't Ex. 1 at 16:18:01 - 16:18:22.[4] He contacted the driver, later identified as Justin Ramirez, who provided a Missouri identification card and advised that his girlfriend, April Witt, had rented the vehicle.[5]Tr. at 9-10, 25, 27; Gov't Ex. 1 at 16:18:40 - 16:19:46. Mr. Ramirez advised Officer Steen that he did not have a valid driver's license. Tr. at 9, 25; Gov't Ex. 1 at 16:18:40 - 16:19:46.
3. Officer Steen returned to his vehicle to run Mr. Ramirez's information through his computer and through police dispatch on the radio. Tr. at 10, 25; Gov't Ex. 1 at 16:20:05 -16:20:48. He discovered Mr. Ramirez had an active arrest warrant for driving while suspended. Tr. at 10, 27; Gov't Ex. 1 at 16:27:15 - 16:27:39, 16:29:05 - 16:29:28. Pursuant to the warrant, Officer Steen went back to the Impala and arrested Mr. Ramirez. Tr. at 10-11, 33; Gov't Ex. 1 at 16:35:23 - 16:36:25. At 4:36 p.m., Mr. Ramirez told law enforcement that Ms. Witt was on her way to collect the vehicle. Gov't Ex. 1 at 16:36:37 - 16:36:45, 16:37:09 - 16:37:11, 16:37:31 -16:37:40.
4. Mr. Ramirez also suggested that the passenger could drive the vehicle. Tr. at 11, 30. Officer Steen placed Mr. Ramirez in the back of the patrol vehicle and went to speak with the vehicle's sole passenger, who was later identified as Defendant. Tr. at 11; Gov't Ex. 1 at 16:37:53 - 16:38:05, 16:38:41 - 16:38:45. Officer Steen found Defendant slumped over in the passenger's seat. Tr. at 11, 30. According to Officer Steen, Defendant's eyes were glassed over, his conversation was not tracking, and he appeared confused. Tr. at 11. Defendant said he was “not feeling well.” Tr. at 11; Gov't Ex. 1 at 16:38:59 - 16:39:02. When asked if was on anything, Defendant said he took medication for ulcers, which were bothering him. Tr. at 11, 30; Gov't Ex. 1 at 16:39:00 - 16:39:01, 16:39:24 - 16:39:27. Based on his training and experience, Officer Steen believed Defendant had consumed a controlled substance and was “a little strung out.” Tr. at 1112; Gov't Ex. 1 at 16:41:48 - 16:41:54. At that time, Officer Steen was “very concerned” about allowing Defendant to drive the vehicle. Tr. at 12.
5. Defendant called someone he identified as April Witt who said, at approximately 4:39 p.m., she was waiting for a ride. Gov't Ex. 1 at 16:39:07 - 16:39:10, 16:40:36 - 16:40:38. The individual on the phone also indicated Defendant could drive the vehicle. Gov't Ex. 1 at 16:39:14 - 16:39:19. Officer Steen could not verify it was Ms. Witt on the phone. Gov't Ex. 1 at 16:40:24 - 16:40:33.
6. Officer Steen returned to his vehicle and asked Mr. Ramirez if he would like Defendant to drive the car. Tr. at 27; Gov't Ex. 1 at 16:41:41 - 16:41:46. Mr. Ramirez responded, “That's alright.” Tr. at 27, 30; Gov't Ex. 1 at 16:41:46 - 16:41:48. Although the person on the phone had also approved Defendant driving the vehicle, Officer Steen did not believe it was safe for Defendant to do so. Tr. at 29-30, 33-34, 36-37; Gov't Ex. 1 at 16:39:14 - 16:39:19, 16:43:45 - 16:43:50, 17:03:57 - 17:04:03, 17:06:46 - 17:06:53. Officer Steen shared his concerns with Mr. Ramirez, who seemed to agree with the officer.[6] Tr. at 36-37; Gov't Ex. 1 at 16:42:31 - 16:42:33, 16:43:50 - 16:43:51. 7. Officer Steen asked Mr. Ramirez if there was anything illegal in the car and whether he could search the car. Tr. at 31; Gov't Ex. 1 at 16:41:58 - 16:42:10. Mr. Ramirez initially said he did not mind if the officer searched the car, but ultimately denied permission because it was “not [his] rental,” and he only “had [the car] for like 20 seconds.” Tr. at 31-32; Gov't Ex. 1 at 16:42:10 - 16:43:23.
8. At 4:43 p.m., Mr. Ramirez told law enforcement that Ms. Witt should arrive “any time.” Gov't Ex. 1 at 16:43:24 - 16:43:27. At 4:46 p.m., Mr. Ramirez called Ms. Witt. Gov't Ex. 1 at 16:46:10 - 16:47:07. After the call, Mr. Ramirez told law enforcement that Ms. Witt was on her way. Gov't Ex. 1 at 16:47:09 - 16:47:13. At 4:53 p.m., Mr. Ramirez again stated Ms. Witt should be arriving “any time,” and “she doesn't live that far way.” Gov't Ex. 1 at 16:53:20 -16:53:25. At 5:03 p.m., Mr. Ramirez called Ms. Witt again, and she said it would be fifteen to twenty minutes before she arrived. Gov't Ex. 1 at 17:03:24 - 17:03:30.
9. Officer Steen decided to tow the vehicle because Break Time's business had been disrupted for about an hour, Mr. Ramirez had been arrested, Defendant did not appear well enough to drive, and after waiting nearly an hour, Ms. Witt had not arrived. Tr. at 11-14, 23-24, 29, 3334; Gov't Ex. 1 at 17:03:45 - 17:04:03; Gov't Ex. 11.[7] During his twenty-five years with SPD, Officer Steen towed “many cars in the same situation,” and he considered it a “normal situation” to order a tow. Tr. at 13. His decision to tow the vehicle was not a pretext to search the vehicle.[8]Tr. at 13. According to Officer Steen, SPD officers conduct an inventory search when towing a vehicle to document its contents. Tr. at 14-15, 34. At law enforcement's request, Defendant, who was not in custody and was advised that he was free to leave, exited the vehicle and sat on a curb near the convenience store. Tr. at 13-14, 19, 30-31; Gov't Ex. 1 at 17:04:25 - 17:05:10.
10. At approximately 5:07 p.m., law enforcement began inventorying the vehicle's contents. Gov't Ex. 1 at 17:07:03. The officers found, among other things, a white backpack behind the driver's seat containing two large bags of a crystalized substance believed to be methamphetamine, a smaller bag with a “brownish crystalized substance,” several small bags with white residue, a small package containing what appeared to be tobacco or mushrooms, $2,760 in cash, a gun wedged under the front passenger's seat, a gallon can of acetone in the trunk, and six “very odd small magnets” behind the driver's seat near where the white backpack was located. Tr. at 15-22; Gov't Ex. 1 at 17:07:03 - 17:31:46; Gov't Exs. 4, 7, 9, 12. After the recovery of suspected controlled substances, a woman identifying herself as Ms. Witt arrived at approximately 5:25 p.m.[9] Gov't Ex. 1 at 17:25:00 - 17:25:08.
11. Officer Steen took Defendant into custody after the officers found the first two bags of methamphetamine. Tr. at 19, 36. Subsequent to their arrest, Defendant and Mr. Ramirez were transported to the Greene County Jail. Tr. at 39-40, 43. While at the jail, Defendant fell asleep and...
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