Opinion
18-00036-01/02-CR-W-BCW
04-12-2023
UNITED STATES OF AMERICA, Plaintiff, v. SHAWN BURKHALTER, and JOSHUA NESBITT, Defendants.
REPORT AND RECOMMENDATION
LAJUANA M. COUNTS, UNITED STATES MAGISTRATE JUDGE.
This matter is currently before the Court on Defendant Shawn Burkhalter's Motion to Suppress Evidence Seized From 8338 Hillcrest Road, Kansas City, Missouri (Doc. #1088) and Defendant Joshua Nesbitt's Motion to Suppress Evidence Seized From 8338 Hillcrest Road, Kansas City, Missouri (Doc. #1100). For the reasons set forth below, it is recommended that these motions be denied.
I. INTRODUCTION
On February 21, 2018, the Grand Jury returned a fourteen-count Indictment against defendants Shawn Burkhalter, Joshua Nesbitt, Joslyn Lee, Nickayla Jones, Autry Hines, Rachel Ryce, and Sharika Hooker. On July 30, 2019, the Grand Jury returned a fifteen-count Superseding Indictment against defendants Burkhalter, Nesbitt, Jones, Hines, Ryce, Hooker, and Anthony Peltier. On July 30, 2019, the government also filed a Notice of Intent to Seek the Death Penalty against defendants Burkhalter and Nesbitt. On October 6, 2021, the Grand Jury returned a fifteen-count Second Superseding Indictment against defendants Burkhalter and Nesbitt.
All other defendants charged in the previous indictments had entered guilty pleas.
On August 30, 2022, the government filed a Notice of Withdrawal of the Notice of Intent to Seek Death Penalty. On September 6, 2022, the Grand Jury returned a fifteen-count Third Superseding Indictment against defendants Burkhalter and Nesbitt. Defendant Burkhalter is charged in all counts of the Third Superseding Indictment. Defendant Nesbitt is charged in all counts except Counts Eleven and Twelve. The charges are as follows: Count One (Illegal Drug Distribution Conspiracy), Count Two (Cocaine Possession/Distribution), Counts Three and Five (Discharge of Firearm in Furtherance of Crime of Violence or Drug Trafficking Crime), Count Four (Marijuana Possession/Distribution), Counts Six and Seven (Murder Resulting From the Use of Firearm in Crime of Violence or Drug Trafficking Crime), Count Eight (Witness and Evidence Tampering Conspiracy), Count Nine (Murder of Potential Witness), Counts Ten, Eleven, and Twelve (Witness and Evidence Tampering), Count Thirteen (Robbery Affecting Interstate Commerce), Count Fourteen (Brandishing of Firearm in Furtherance of Crime of Violence), and Count Fifteen (Felon in Possession of a Firearm).
An evidentiary hearing on the defendants' motions to suppress evidence seized from 8338 Hillcrest Road was held on October 18, 2022. Defendant Burkhalter was represented by appointed counsel Patrick A. McInerney, Lance D. Sandage, and Eric K. Klein. Defendant Nesbitt was represented by appointed counsel J. Justin Johnston and Jay D. DeHardt. The government was represented by Assistant United States Attorneys David Raskin and David Wagner. The government called Joslyn Lee, Detective Jimmy Wolsey, and Corporal Frank McDevitt as witnesses. Both Detective Wolsey and Corporal McDevitt were employed by the Raytown Police Department on September 14, 2015, the date relevant to the issues raised in the subject motion. The defense called no witnesses to testify.
Detective Wolsey is now employed by the St. Louis County Police Department. (Tr. at 33.)
On September 14, 2015, Corporal McDevitt was a detective with the Raytown Police Department. (Tr. at 62.) For purposes of this Report and Recommendation, the Court will refer to him as Detective McDevitt.
II. FINDINGS OF FACT
On the basis of the evidence adduced at the evidentiary hearing, the undersigned submits the following proposed findings of fact:
1. Joslyn Lee testified that Shawn Burkhalter was her boyfriend for a number of years, but that they are no longer in a relationship. (Tr. at 6.) Ms. Lee testified that she met Joshua Nesbitt through Burkhalter. (Tr. at 6.) Ms. Lee testified that Burkhalter went by “Deuce” and Nesbitt went by “T.” (Tr. at 6.)
2. Ms. Lee testified that she pled guilty in this case and to a case in Jackson County, Missouri, involving basically the same charges, under a cooperation agreement with the prosecutors in both cases. (Tr. at 7.) Ms. Lee stated that she is testifying at this suppression hearing because her cooperation agreement with the United States Attorney's Office requires that she testify. (Tr. at 7.)
3. Ms. Lee testified that she moved into Apartment C at 8338 Hillcrest Road in late February of 2015. (Tr. at 8.) The apartment had two bedrooms, one bathroom, a living room, a dining room, and a kitchen. (Tr. at 8.) The apartment was on the second floor of a large complex of three-story apartment buildings. (Tr. at 8.) Ms. Lee testified that her name was on the lease and that she paid the rent. (Tr. at 8-9.)
4. Ms. Lee testified that Shawn Burkhalter moved into the apartment with her in April of 2015. (Tr. at 9.) Ms. Lee testified that Burkhalter lived in the apartment full-time until about September of 2015. (Tr. at 9.) Ms. Lee testified that Joshua Nesbitt moved into the apartment in late August and stayed until around the same time that Burkhalter left. (Tr. at 9.) Ms. Lee testified that Burkhalter and Nesbitt did not pay any part of the rent for the apartment when they were staying there. (Tr. at 9.) Ms. Lee testified that Burkhalter and Nesbitt did not have their names on the lease. (Tr. at 9-10.)
5. On September 14, 2015, at approximately 5:00 p.m., Detective Jimmy Wolsey and his partner, Detective Frank McDevitt, were conducting surveillance at the apartment complex in regard to their investigation of a homicide that had occurred four days prior at Mama China restaurant. (Tr. at 41-42.) The detectives were at the complex because they had received a tip that Shawn Burkhalter might reside there. (Tr. at 42.) Detective Wolsey testified that a blue SUV arrived at the
complex at about 5:00 p.m. and parked in a parking space next to Ms. Lee's apartment building. (Tr. at 42-43.) Detective Wolsey observed three persons in that SUV, one of whom he recognized to be Burkhalter, based on a Facebook photo that he had obtained. (Tr. at 42.)
6. When Mr. Burkhalter exited the SUV, Detective Wolsey approached him. (Tr. At 43.) Detective Wolsey testified that he followed Burkhalter to the back part of the apartment complex while calling out Burkhalter's name and stating, “Hey, I need to talk to you.” (Tr. at 45.) Detective Wolsey testified that Burkhalter initially looked at him, but did not respond verbally. (Tr. at 47.) Detective Wolsey testified that he was approximately twelve feet behind Burkhalter. (Tr. at 45.) When Burkhalter and Detective Wolsey were behind the apartment building, Burkhalter asked, “Why do you want to speak with me?” (Tr. at 47.) During this time, Detective McDevitt had remained by the SUV with the other two occupants (one of whom was Joshua Nesbitt). (Tr. at 45-46, 64.) Detective McDevitt testified that after he identified Nesbitt, he told him that he was free to leave. (Tr. at 64.) Detective McDevitt testified that Nesbitt was detained for less than an hour. (Tr. at 68.) Detective McDevitt believes that Nesbitt then left the scene. (Tr. at 64.) Detective McDevitt could not recall if he asked Nesbitt whether he resided at the apartment. (Tr. at 69.) Detective McDevitt testified that he did not ask Nesbitt for consent to search the apartment. (Tr. at 69.)
7. Ms. Lee testified that as she was driving to her apartment after work on September 14, 2015, she received a call from a close friend, Carol Williams, telling her that the police had arrested Shawn Burkhalter and that they had the entire apartment complex surrounded. (Tr. at 10.) Ms. Lee testified that she then received a call from Burkhalter from a phone number she did not recognize. (Tr. at 10-11.) Burkhalter told Ms. Lee that the maintenance man had let Burkhalter borrow his phone. (Tr. at 11.) Ms. Lee testified that Burkhalter told her that Raytown Police had tried to arrest him, but that he was able to get away from them by running into the wooded area behind the apartment complex. (Tr. at 10-11.) Ms. Lee testified that Burkhalter wanted her to pick him up. (Tr. at 11.)
8. Ms. Lee testified that she tried to enter the apartment complex, but officers had it blocked off. (Tr. at 11.) Ms. Lee testified that Mr. Burkhalter called her again and told her to come down the street near the wooded area behind the apartment complex. (Tr. at 11.) Ms. Lee testified that as she drove down by the wooded area, Burkhalter came running out of the woods and jumped into the car with her. (Tr. at 11.)
9. Ms. Lee testified that Mr. Burkhalter told her that he and Mr. Nesbitt had taken an AR-15 rifle and a handgun out of Ms. Lee's apartment and put them in Burkhalter's cousin's car prior to the Raytown Police surrounding the apartment complex. (Tr. at 11-12, 24.)
10. Ms. Lee testified that a detective who was on the scene at the apartment complex called her and told her that she needed to come to the complex to pick up her son. (Tr. at 12.) Ms. Lee testified that she then met up with another close friend, Zachiah, and Mr. Burkhalter got in Zachiah's car so that Ms. Lee could go to the apartment complex. (Tr. at 12.)
11. Ms. Lee testified that when she arrived at the apartment complex, a Raytown homicide detective asked her to get into an unmarked police vehicle with him. (Tr. at 13, 29.) Detective Wolsey testified that he asked Ms. Lee to join him in his unmarked police vehicle for an interview. (Tr. at 34-35.) The detective had his badge displayed. (Tr. at 29.) Ms. Lee testified that while the detective did not tell her that she had the right to refuse to enter the vehicle, she felt like she did have that right. (Tr. at 29.) Ms. Lee testified that she and the detective were in the vehicle approximately twenty to thirty minutes. (Tr. at 13.) Detective Wolsey testified that the interview lasted fifteen to twenty minutes. (Tr. at 35-36.) Ms. Lee testified that during this time, Mr. Burkhalter was not around the scene and as far as she could tell, Mr. Nesbitt was not at the scene. (Tr. at 13-14.) Detective Wolsey testified that to his knowledge, neither Burkhalter nor Nesbitt was in the area during the time that he and Ms. Lee were in the police vehicle. (Tr. at 40.) Detective McDevitt testified that he stood outside while Detective Wolsey and Ms. Lee were inside the vehicle. (Tr. at 63.)
12. Ms. Lee testified that the detective told her that he knew that Shawn Burkhalter had something to do with a homicide that happened at Mama China restaurant. (Tr. at 13.) Detective Wolsey testified that he told Ms. Lee that he was interested in looking in her apartment for the murder weapon. (Tr. at 36.) Ms. Lee testified that the detective showed her a photograph of Ms. Lee and Burkhalter that Ms. Lee had posted on Facebook and asked her about her relationship with Burkhalter. (Tr. at 13-15.) Ms. Lee told the detective that Burkhalter was her son's father and that he had come to the apartment to watch their son while she was at work, but that they were not currently in a relationship. (Tr. at 14.) At the hearing, Ms. Lee admitted that this was a lie. (Tr. at 14.) Ms. Lee told the detective that Burkhalter did not live with her. (Tr. at 22.) At the hearing, Ms. Lee testified that Burkhalter did in fact live with her in the apartment. (Tr. at 22.) The detective asked Ms. Lee whether she knew about Burkhalter's whereabouts and Ms. Lee said that she did not know where he was. (Tr. at 13-14.) At the hearing, Ms. Lee admitted that this was another lie. (Tr. at 14.)
13. Ms. Lee testified that eventually, the detective asked her for permission to search her apartment. (Tr. at 13.) When questioned at the hearing, Ms. Lee provided the
following testimony:
Q. Tell us about that. What did the officer say to you and what did you say to him?
A. He asked if -- he said that either I gave him permission to search my apartment or he was going to get a search warrant to search it. But with permission that he would be more -- not as, I want to say like to flip the house upside down, to tear things up, but -- or he would get a warrant and they wouldn't be as nice with searching the apartment.
Q. The officer said he would tear the apartment up if he had to get a search warrant, is that correct?
A. Correct.
Q. And how did you react to what the officer was telling you?
A. I told him that I didn't have anything to hide, that I would give him consent to search the apartment.
(Tr. at 15.) When questioned at the hearing, Detective Wolsey provided the following testimony:
Q. Tell us what you remember about what you said and what she said regarding consent to search.
A. I just, again, like I filled it out. I filled out the Raytown consent form. I explained it to her, what it meant, and she agreed to consent. It wasn't a long conversation. I didn't say anything other than would you mind if I look in your apartment.
(Tr. at 36.) On cross-examination, Detective Wolsey testified that he does not recall telling Ms. Lee that if she consented, he would make sure the search team did not mess up her apartment, but if she did not consent, the search team would tear up the apartment. (Tr. at 53.) While Detective Wolsey testified that he cannot say for sure that he did not say this to Ms. Lee, he further testified that he cannot imagine saying what she alleges because that was not his common practice or the way he conducted his business. (Tr. at 54.)
14. Ms. Lee signed a Consent to Search form at 7:48 p.m. (Tr. at 16, 39, 41; Gov. Exh. S124.) The Consent to Search states:
I hereby freely and voluntarily give my consent to officers of the Raytown Police Department to conduct a search of your Entire apartment Letter C located at 8338 Hillcrest Rd. KCMO 64138 and seize any property which they reasonably believe, to be evidence, associated with a Homicide.
I understand that the officers have no search warrant authorizing this search, and that I have a constitutional right to refuse permission for them to conduct the search. I understand that I can stop the search at any time. I also understand that any evidence found by the officers may be used for criminal prosecution purposes.
(Gov. Exh. S124.) Detective Wolsey testified that the handwriting filling in the blanks on the form was his. (Tr. at 39-40.) Detective Wolsey testified that he also signed the form. (Tr. at 39.) Ms. Lee testified that she did not talk to Mr. Burkhalter or Mr. Nesbitt about consenting to the search. (Tr. at 25, 28.)
15. Ms. Lee testified that while she was a bit nervous because of the scene, she was thinking clearly when she talked to the detective in the car that day. (Tr. at 18.) Ms. Lee testified that she had not been drinking or taking any drugs before her conversation with the detective. (Tr. at 18-19.) Ms. Lee was not handcuffed and testified that she did not feel that she was under arrest when she was with the detective. (Tr. at 19.) Ms. Lee testified that the detective did not tell her that she had to stay in the car and that she felt free to leave. (Tr. at 19, 30.) Ms. Lee testified that while she could tell the detective was frustrated because Mr. Burkhalter had gotten away, the detective was not mean or aggressive toward her. (Tr. at 19.) Ms. Lee testified that she and the detective had a calm conversation. (Tr. at 19.) Detective Wolsey testified that Ms. Lee had a pleasant demeanor while in his car and that they had a normal conversation. (Tr. at 37.) When asked whether the detective's comment about getting a search warrant and tossing the place made an impact on her decision-making, Ms. Lee responded: “Not very much because I knew at the time that there was nothing in the apartment, so I had no problem with Raytown searching it.” (Tr. at 20.) On cross-examination, Ms. Lee testified that she did not consider the detective's comment to “tear [her] apartment up” to be threatening. (Tr. at 21.) On cross-examination, Ms. Lee also testified: “Regardless of his statement or not, I would have given consent.” (Tr. at 22.)
16. Detective Wolsey testified that Ms. Lee walked with him to the apartment and then let him in. (Tr. at 38.) Ms. Lee waited outside of the apartment during the search
which took about an hour. (Tr. at 20, 38.) Ms. Lee testified that she had no second thoughts about consenting while the detectives were conducting the search. (Tr. at 20.) Ms. Lee did not complain to the detectives while they were searching. (Tr. at 20, 38.) Ms. Lee testified that the only item that she saw them remove from the apartment was a black handgun box which belonged to Mr. Burkhalter. (Tr. at 20.) Detective McDevitt testified that he recovered a .40-caliber magazine and a gun case from the apartment. (Tr. at 72.) Detective McDevitt testified that he asked Ms. Lee about the .40-caliber magazine and the gun case and she said that she had never seen them before. (Tr. at 72.) Detective Wolsey and Detective McDevitt each testified that to their knowledge, neither Mr. Burkhalter nor Mr. Nesbitt was around during the search of the apartment. (Tr. at 40, 65.)
17. Ms. Lee testified that she is thirty years old, that she graduated from high school at Raytown South High School, that she had one year of college at Northwest Missouri State University, and that she had two years at Wellspring School of Allied Health. (Tr. at 18.)
Ms. Lee worked as a call center representative in Lenexa, Kansas. (Tr. at 18.)
Ms. Lee testified that she first told officers the truth about Mr. Burkhalter living with her when she was interviewed after her arrest in October 2015. (Tr. at 23.)
When asked at the hearing what the phrase “freely and voluntarily” meant to her, Ms. Lee responded: “Without any issue, I give them full consent to search my apartment.” (Tr. at 17.) Ms. Lee further testified that she agrees with the statement she made in signing the form that she freely and voluntarily consented. (Tr. at 18.) Detective Wolsey testified that he had no reason to doubt that Ms. Lee was freely and voluntarily consenting. (Tr. at 40.)
III. DISCUSSION
Defendants Burkhalter and Nesbitt seek to suppress the results of a search of 8338 South Hillcrest Road, Apartment C, Kansas City, Missouri, including a .40 caliber extended magazine and a green Ruger brand hard plastic case. (Doc. #1088 at 1; Doc. #1100 at 1.) The defendants argue that they each had a privacy interest in the apartment, that they did not consent to a search of the apartment, and that Joslyn Lee's consent to search was invalid. (Doc. #1088 at 4-5; Doc. #1100 at 3-4.) The “Government does not dispute that the defendants had a legitimate expectation of privacy in at least some portions of the apartment as overnight guests.” (Government's Memorandum in Opposition to Defendants' Motions to Suppress Evidence Seized From 8338 Hillcrest Road, Kansas City, Missouri at 3; Doc. #1120.) Thus, the Court need only examine the issue of consent.
“Under the Fourth Amendment, searches and seizures inside a home without a warrant are presumptively unreasonable. Equally fundamental, however, is the principle that a warrantless search of a residence does not violate the Fourth Amendment where police obtain a resident's consent.” United States v. Comstock, 531 F.3d 667, 675 (8th Cir. 2008) (citations and footnote omitted).
A. Voluntariness of Consent
The government bears the burden of proving that consent was voluntarily given. See United States v. Comstock, 531 F.3d 667, 676 (8th Cir.), cert. denied, 555 U.S. 1020 (2008). The test in reviewing a consent search is whether, in the totality of the circumstances, the consent was given voluntarily and without coercion. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). In Comstock, the court set forth the following factors as relevant in evaluating the voluntariness of a consent to search:
1) his age; 2) his general intelligence and education; 3) whether he was intoxicated at the time; 4) whether he consented after being informed of his Miranda rights; and 5) whether he was aware of his rights and protections due to previous arrests. Other relevant circumstances include: 1) the length of time the subject was detained; 2) whether the officers acted in a threatening manner; 3) whether any promises or misrepresentations were made; 4) whether the subject was in custody or under arrest at the time; 5) whether the consent occurred in public; and 6) whether the subject was silent as the search was conducted.531 F.3d at 676-77 (citation omitted).
In this case, when Ms. Lee arrived at the apartment complex, Detective Wolsey asked her to join him in this vehicle. (Fact No. 11.) Ms. Lee testified that while the detective did not tell her that she had the right to refuse to enter the vehicle, she felt like she did have that right. (Id.) Detective Wolsey told Ms. Lee that he knew that Shawn Burkhalter had something to do with a homicide that happened at Mama China restaurant and asked Ms. Lee about her relationship with Burkhalter. (Fact No. 12.) Ms. Lee told the detective that Burkhalter was her son's father and that he had come to the apartment to watch their son while she was at work. (Id.) Detective Wolsey told Ms. Lee that he was interested in looking in her apartment for the murder weapon and asked for her permission to search the apartment. (Fact Nos. 12 and 13.) Detective Wolsey may have stated or implied that officers would be more considerate in conducting the search if Ms. Lee consented to the search and did not require them to obtain a search warrant. (Fact No. 13.) Ms. Lee signed the consent form at 7:48 p.m. (Fact No. 14.) Ms. Lee and Detective Wolsey were in the vehicle for not more than thirty minutes. (Fact No. 11.) Ms. Lee walked with Detective Wolsey to the apartment and then let him in. (Fact No. 16.) Ms. Lee waited outside of the apartment during the search. (Id.) Ms. Lee testified that she had no second thoughts about consenting while the detectives were conducting the search. (Id.) Ms. Lee did not complain to the detectives while they were searching. (Id.)
Ms. Lee testified that she did not consider Detective Wolsey's comment to be threatening. (Fact No. 15.) When asked whether Detective Wolsey's comment made an impact on her decision-making, Ms. Lee responded: “Not very much because I knew at the time that there was nothing in the apartment, so I had no problem with Raytown searching it.” (Id.) Ms. Lee further testified: “Regardless of his statement or not, I would have given consent.” (Id.) As set out in United States v. Kelley, 594 F.3d 1010, 1013 (8th Cir. 2010), where a person providing consent admits that an officer's alleged threats did not cause her to consent to a search and that she would have allowed the officer to search her property regardless of the alleged threats, a court can find that the officer's alleged threats did not render the consent involuntary.
On September 14, 2015, Ms. Lee was 23 years old. (Fact No. 17.) Ms. Lee had graduated from high school and had some post-secondary education. (Id.) Ms. Lee testified that while she was a bit nervous while talking to the detective, she was thinking clearly. (Fact No. 15.) Ms. Lee had not been drinking or taking any drugs before her conversation with the detective. (Id.) Ms. Lee was not handcuffed and testified that she did not feel that she was under arrest when she was with Detective Wolsey. (Id.) Ms. Lee testified that she felt free to leave the car. (Id.) Ms. Lee testified that Detective Wolsey was not mean or aggressive toward her and that they had a calm conversation. (Id.) Ms. Lee testified at the suppression hearing that she agrees with the statement she made in signing the form that she freely and voluntarily consented to the search of the apartment. (Fact No. 14, n. 6.)
Based on the evidence outlined above, the Court finds that Ms. Lee voluntarily and intentionally consented to a search of her residence. The Government has met its burden in establishing that Ms. Lee's consent to search was freely and voluntarily given and not the result of duress or coercion.
B. Authority to Consent
In Fernandez v. California, 571 U.S. 292, 294 (2014), the United States Supreme Court stated: “Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants consents.” See also United States v. Brewer, 588 F.3d 1165, 1169 (8th Cir. 2009) (“‘[A] warrantless entry and search by law enforcement officers does not violate the Fourth Amendment's proscription of ‘unreasonable searches and seizures' if the officers have obtained the consent of a third party who possesses common authority over the premises.' Illinois v. Rodriguez, 497 U.S. 177, 179 . . . (1990).”)
In this case, Ms. Lee testified that she moved into Apartment C at 8338 Hillcrest Road in late February of 2015. (Fact No. 3.) Ms. Lee testified that her name was on the lease and that she paid the rent. (Id.) Ms. Lee testified that on September 14, 2015, a detective who was on the scene at the apartment complex called her. (Fact No. 10.) When she arrived at the complex, Detective Wolsey told her that he knew that Shawn Burkhalter had something to do with a homicide that happened at Mama China restaurant and that he was interested in looking in her apartment for the weapon used in that homicide. (Fact No. 12.) Ms. Lee told Detective Wolsey that while Mr. Burkhalter had come to the apartment to watch their son while she was at work, Burkhalter did not live with her. (Id.) Ms. Lee signed a Consent to Search form which described the location to be searched as “your Entire apartment Letter C located at 8338 Hillcrest Rd. KCMO 64138.” (Fact No. 14.) After signing the consent form, Ms. Lee walked with Detective Wolsey to the apartment and let him in. (Fact No. 16.)
The evidence presented to the Court suggests that Ms. Lee had authority over the apartment. The Court finds that the police properly relied on the consent to search obtained from Ms. Lee.
C. Lack of Consent From Defendants Burkhalter and Nesbitt
The law is clear that “[w]hen officers obtain valid third-party consent, they are not also required to seek consent from a defendant, even if detained nearby.” United States v. Amratiel, 622 F.3d 914, 917 (8th Cir. 2010) (citing United States v. Matlock, 415 U.S. 164, 171 (1974)). “[A] potential objector, nearby but not invited to take part in the threshold colloquy, loses out . . . [s]o long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” Georgia v. Randolph, 547 U.S. 103, 121 (2006).
Here, Shawn Burkhalter and Joshua Nesbitt were not present at the apartment complex when Detective Wolsey obtained Ms. Lee's consent to search. The absence of Burkhalter and Nesbitt was not the result of the police removing them from the scene to avoid their possible objection to a search. As for Burkhalter, he had run from police and Ms. Lee thereafter picked him up behind the complex and had a friend take him from the scene. (Fact Nos. 7, 8, and 10.) As for Nesbitt, no evidence was presented to suggest that the police even suspected that Nesbitt was staying in the apartment. In any event, Detective McDevitt told Nesbitt that he was free to leave prior to the time Ms. Lee met with Detective Wolsey. Detective McDevitt believes that Nesbitt then left the scene. (Fact No. 6.) As set forth in Amratiel, since the officers had the consent of Ms. Lee, they were not required to also seek consent from Burkhalter or Nesbitt.
Mr. Nesbitt was contacted by Detective McDevitt at approximately 5:00 p.m. and detained for less than one hour. (Fact No. 6.) Ms. Lee signed a Consent to Search form at 7:48 p.m., after spending (at most) thirty minutes with Detective Wolsey. (Fact Nos. 11 and 14.)
IV. CONCLUSION
Based on the foregoing, it is
RECOMMENDED that the Court, after making an independent review of the record and applicable law, enter an order denying Defendant Shawn Burkhalter's Motion to Suppress Evidence Seized From 8338 Hillcrest Road, Kansas City, Missouri (Doc. #1088) and Defendant Joshua Nesbitt's Motion to Suppress Evidence Seized From 8338 Hillcrest Road, Kansas City, Missouri (Doc. #1100).
Counsel are reminded they have fourteen days in which to file any objections to this Report and Recommendation. A failure to file and serve objections by this date shall bar an attack on appeal of the factual findings in this Report and Recommendation which are accepted or adopted by the district judge, except on the grounds of plain error or manifest injustice.