Search legal, 1 judge indicates

A magistrate recommends the denial of a request to toss evidence in explosives case.

By Kevin Graham, Times Staff Writer
Published February 29, 2008

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.

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.

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."

Both Mohamed and Megahed were indicted 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.