Don't exclude evidence against USF students, magistrate urges

TAMPA — A federal magistrate recommended Thursday that a defense request to toss out evidence seized from Ahmed Mohamed and Youssef Megahed during an Aug. 4 traffic stop in South Carolina should be denied.

"The officer had probable cause to stop the defendants for speeding, the brief questioning of the defendants was not unreasonable in scope nor duration, and the driver consented to the search," U.S. Magistrate Judge Mark Pizzo said in a written recommendation to U.S. District Judge Steven Merryday.

Merryday, the trial judge, has the authority to make the final decision. If he disagreed with Pizzo and granted the defense request, much of the government's case would go away.

During a two-day hearing that began Feb. 19, Pizzo heard testimony from Berkeley County, S.C., sheriff's Cpl. James Lamar Blakely, who said he stopped Mohamed, 26, and Megahed, 21, for traveling 60 mph in a 45 mph zone along Highway 176 in Goose Creek, S.C.

Defense attorneys said Blakely's stop was illegal, that he improperly detained the men and that Mohamed, who was driving, never gave his consent to search the vehicle.

James W. Smith III, one of Megahed's public defenders, disputed claims in court that the men, then students at the University of South Florida, were speeding. Smith said they were traveling 55 mph when Blakely noticed their car and said the deputy stopped them because they had "tan" skin.

Blakely did not have a radar detector in his cruiser to record how fast the car was going. He said he used a pacing method, traveling behind Mohamed and Megahed as they drove faster, to determine their speed.

Lyann Goudie, an attorney representing Mohamed, said Mohamed never gave his consent for Blakely to search the car during the traffic stop.

At one point during a conversation outside the vehicle, Blakely asked Mohamed whether he had anything in the car the deputy should be concerned about.

Mohamed told him he had fireworks, fuses and small homemade rockets.

"You don't have a problem if I look then right?" Blakely asked.

"If you must," Mohamed responded.

Goudie said in court that Mohamed's response did not indicate consent to search, merely his acknowledgment of an authority figure.

But Pizzo wrote in his recommendation that Mohamed answered "no" when Blakely asked a second time if he had a problem with the search. Blakely testified that Mohamed also said "go ahead."

Pizzo said that it's hard to hear that part of the conversation, which was recorded by a microphone Blakely wore and a camera mounted beneath the rearview mirror of his patrol car.

"And while Mohamed's answer to the request for clarification cannot be heard, my review of the recording shows Mohamed nodding 'no' to Blakely's clarification request (meaning — 'no I do not have a problem')," Pizzo wrote. "Whether Mohamed nodded no or stated no (as Blakely testified), the clear import of Mohamed's actions were that he did not object to Blakely's search request."

While searching the car, Blakely found what experts described as low-grade explosives in the trunk.

Both Mohamed and Megahed were indicted on Aug. 29 on a charge of illegally transporting explosive materials. Mohamed was also accused of demonstrating how to turn a remote control child's toy into a detonator.

During the traffic stop, Blakely and a partner are heard referring to Mohamed and Megahed as "terrorists" and suicide bombers. They also poke fun at the Korans the men carried.

"Undoubtedly, Blakely's ethnically based assumptions did motivate him in part to investigate further, but that fact is irrelevant here," Pizzo said, adding that the deputy "articulated rational, unbiased observations" which were factors in his intent to search.

On Thursday, Pizzo also denied a media request to release the video of the traffic stop because the case has already received substantial publicity. Pizzo said releasing the tape may have a greater "inflammatory impact" on potential jurors than print media. Mohamed and Megahed are scheduled to go to trial April 28.

Kevin Graham can be reached at kgraham@sptimes.com or (813) 226-3433.

Don't exclude evidence against USF students, magistrate urges 02/28/08 [Last modified: Friday, February 29, 2008 12:08am]

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