United States v. Elburki

647 F.Supp.3d 722

UNITED STATES of America, Plaintiff, v. (1) Kamel Mahgub ELBURKI, Defendant.

Case No. 4:19-cr-00406-RK

United States District Court, W.D. Missouri, Western Division

Signed December 27, 2022

Bruce A. Rhoades, Byron H. Black, Maureen Brackett, DOJ-USAO, Kansas City, MO, for Plaintiff.

Stephen Chase Higinbotham, Jr., Higinbotham & Higinbotham, Lee's Summit, MO, for Defendant Kamel Mahgub Elburki.

David Guastello, Kansas City, MO, for Defendant Tayler Charles Jones.

Angela Claire Hasty, Law Office of Angela Hasty, LLC, Kansas City, MO, for Defendant.

Arimeta R. DuPree, A Dupree & Associates, Kansas City, MO, for Defendants Rachel Gale Simpson, Justin Ren'e Ramirez.

Mark A. Thomason, Law Office of Mark Thomason, LLC, Kansas City, MO, for Defendant Cory Matthew Jobe.

Thomas H Johnson, Petefish, Immel, Hird, Johnson, Leibold & Sloan, LLP, Lawrence, KS, for Defendant.

Jane Francis, Law Office of Jane Francis LLC, Kansas City, MO, for Defendant.

Steven Bradley Willibey, Law Office of Steven Willibey, Kansas City, MO, for Defendant.

Jeffrey Alan Gedbaw, Gedbaw Law Firm LLC, Lee's Summit, MO, Lisa G. Nouri, Missouri, Kansas City, MO, for Defendant.

Casey Meek, Joseph, Hollander & Craft LLC, Kansas City, MO, for Defendant.

Patrick James O'Connor, Wagstaff & Cartmell, Kansas City, MO, for Defendant.

Kenneth C. Hensley, Hensley Law Office, Raymore, MO, for Defendant.

David Harold Johnson, David H. Johnson Attorney at Law, Kansas City, MO, for Defendant.

Chad G Gardner, The Law Office of Chad G. Gardner, Kansas City, MO, for Defendant.

John R. Osgood, Lee's Summit, MO, for Defendant.

ORDER

ROSEANN A. KETCHMARK, UNITED STATES DISTRICT JUDGE

On October 27, 2022, Magistrate Judge W. Brian Gaddy issued a Report and Recommendation (Doc. 555) concluding that the Court should deny Defendant Kamel Mahgub Elburki's motion to suppress (Doc. 439). Defendant filed objections to the Report. (Doc. 557.)¹

After careful and independent de novo review of the record, the applicable law, and the parties' arguments, the Court sustains Defendant's objection to the factual assertion that Defendant did not assert any ownership or possessory interest in items inside the vehicle that was subject to the December 19, 2018, traffic stop in Springfield, Missouri. (See Doc. 557 at 5, No. 14; see Tr. at 28 & 29.) Nonetheless, without a possessory or property interest in the vehicle itself, Defendant lacks Fourth Amendment standing to challenge the December 2018 traffic stop and subsequent search other than as to his own detention. See United States v. Davis, 943 F.3d 1129, 1132 (8th Cir. 2019). The Court agrees with Magistrate Judge Gaddy's findings of fact and conclusions of law in all other respects and accepts his recommendation. Accordingly, the Court ORDERS that:

(1) the Report and Recommendation of Magistrate Judge Gaddy (Doc. 555) is ADOPTED subject to the factual modification as explained above;

(2) Defendant's objections (Doc. 557) are SUSTAINED as to No. 14 and are otherwise OVERRULED; and

(3) Defendant's motion to suppress (Doc. 439) is DENIED.

IT IS SO ORDERED.

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.

I. BACKGROUND

On September 30, 2020, the grand jury returned a superseding indictment² 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.

II. FINDINGS OF FACT

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.³ 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.⁴ Tr. at 8-9, 24, 26-27; Gov't Ex. 1 at 16:18:01 - 16:18:22.⁵ 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.⁶ 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 11-12; 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.⁷ 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 -...