United States District Court, S.D. Illinois
August 15, 2005.
UNITED STATES OF AMERICA, Plaintiff,
JOEY HARRIS, Defendant.
The opinion of the court was delivered by: WILLIAM STIEHL, Senior District Judge
MEMORANDUM & ORDER
This matter is before the Court on defendant's motion to
suppress evidence and statements (Doc. 12) to which the
government has filed a response. The Court held an evidentiary
hearing on the motion and took the matter under advisement.
The indictment charges the defendant with firearm and drug
violations. Specifically Count 1 charges that on or about April
17, 2003, the defendant, having been previously been convicted of
a felony, possessed a .357 caliber firearm in violation of
18 U.S.C. § 922(g)(1). Count 2 charges that on the same date the
defendant possessed with intent to distribute 2.1 grams of crack
cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
The government presented the testimony of East St. Louis Police
Detective Dan Hill and United States Deputy Marshal Tom Woods.
Detective Hill testified that in April of 2003, he was assigned
to work with the Operation Outlaw Crime Initiative Task Force in
East St. Louis with members of the United States Marshals
Service, Belleville Police, Illinois Department of Corrections
and St. Clair County Probation office. At approximately 4:00 P.M.
on April 17, 2003, Hill and his partner, Detective Ontourio Eiland, in their
unmarked car, were patrolling in an area about which they had
received several calls for drugs and guns. They had not received
any particular calls that day about activity, but were just
patrolling the area around the Regal Package Liquor when
Detective Hill noticed two black males outside the liquor store
who he believed were committing criminal trespass by standing
outside the liquor store.
He made a U-turn and pulled in front of the store. Detective
Eiland got out of the car, wearing his raid vest marked
with"Police," and approached one of the men. The person
approached by Det. Eiland was wearing all black. Detective Hill
parked the car and joined Detective Eiland. As Hill walked up,
Deputy U.S. Marshal Tom Woods asked Hill if he had told the other
black male who had been in front of the liquor store to leave.
Hill replied that he had not, and Hill and Deputy Woods then
yelled at the man walking away to stop. Although they yelled
"Stop" several times, the man, the defendant in this case, kept
walking away from the liquor store. Detective Hill described the
defendant as wearing a hat, a heavy leather jacket, jeans and
glasses. He thought the jacket was unusual because it was rather
warm (the task force members were all in short sleeves), and Hill
was concerned because a long jacket could be used to conceal
Hill eventually grabbed the defendant's arm, and attempted to
handcuff him. The defendant stiffened up and would not remove his
right hand from his pocket, despite being asked to do so. Deputy
Woods grabbed the defendant's right arm and forcibly removed it
from his pocket. Once handcuffed, Hill asked the defendant if he
had "anything he shouldn't," to which the defendant replied that
he had some crack cocaine in his pocket. Hill reached into the
pocket and took out the crack cocaine, and then Deputy Woods
asked the defendant if he had "anything else" on him. The
defendant did not give an oral reply to Wood's question, but
nodded towards his jacket. Deputy Woods then patted down the defendant and found
a gun in his jacket.
The defendant was interviewed on April 18, 2003, by Hill and
Deputy U.S. Marshal Dave Davis. During that interview the
defendant told them that he had walked away from the officers on
the previous day because he knew he had drugs and a gun, and
that, as a felon, he was not supposed to possess a gun.
Deputy Woods testified that as supervisor of the violent crimes
initiative, also known as "Operation Outlaw," he is responsible
for locating fugitives and also patrols areas where there have
been a high number of crime reports. While in these high crime
areas they contact people in the area to see if they can make any
arrests. On April 17, 2003, Deputy Woods was working with the
task force, and at approximately 4:00 P.M. he was in the area of
18th Street and State Street in East St. Louis. He was in
that area because the East St. Lois Police Department had
received complaints that there was open drug dealing going on
around the Regal Package Liquor store.
Deputy Woods noticed several individuals outside of the liquor
store, two of whom he believed may have been involved in a drug
deal because he saw one person hand something to the other. His
suspicion of illegal activity was based on his experiences
investigating drug crimes, and he decided to make contact with
the two people in question. As Deputy Woods got out of his car,
he saw Hill and Eiland pulling up to the store and while Det.
Eiland approached one man, Deputy Woods tried to approach the
defendant. The defendant, wearing a mid-thigh length leather coat
began walking quickly away from the store and the officers.
Deputy Woods believed this was to avoid contact with the
officers. Woods asked Hill and Eiland if either of them had told
the defendant to leave, but they said they had not. Woods shouted
to the defendant to stop, but he did not do so, even when Hill
and Deputy Woods both called out again for him to stop. The defendant then went around a corner and
across a parking lot, and Deputy Woods drew his weapon and took
off after the defendant. Detective Hill got to the defendant
first, and grabbed his left arm. Woods grabbed the defendant's
right wrist, which was in his pocket, to hold it there to make
sure he did not have a weapon in that pocket. Woods then forcibly
removed the defendant's hand from his pocket, and the defendant
was handcuffed at that time. Deputy Woods then walked the
defendant to the sidewalk and asked him if he had anything else
they needed to be worried about. The defendant said "Yes," and
nodded towards his chest. Woods asked him what he had, but the
defendant did not reply. He then patted down the defendant and
felt what he believed to be a large gun. Woods removed a loaded
.357 magnum with wooden grips from the defendant's coat pocket.
The defendant presented evidence that at 4:00 P.M. on April 17,
2003, the temperature was 51.8 degrees, and therefore the
defendant had a reason to be wearing a long coat.
It is well settled in the Seventh Circuit that police can
conduct a Terry v. Ohio, 392 U.S. 1, 21 (1968), stop if they
have reasonable suspicion, supported by articulable facts, that
criminal activity is occurring. United States v. Swift,
220 F.3d 502, 506 (7th Cir. 2000). Reasonable suspicion amounts
to something less than probable cause but more than a hunch.
Id. The officer's decision to make the Terry stop must have
been justified at its inception, and the stop must have been
reasonably related in scope to the circumstances known to the
officer at the time of the stop. United States v. Quinn,
83 F.3d 917, 921 (7th Cir. 1996).
It is also well-established that an officer conducting a Terry
stop may conduct a protective search of the suspect for the
purpose of "the discovery of weapons which might be used to harm
the officer or others nearby." Terry, 392 U.S. at 26.
Furthermore, if during a lawful patdown of a suspect's outer clothing, an officer "feels an
object whose contour and mass makes its identity immediately
apparent" and "if the object is contraband, its warrantless
seizure [is] justified." Minnesota v. Dickerson, 508 U.S. 366,
375, (1993). See, United States v. Jackson, 377 F.3d 715,
718-19 (7th Cir. 2004).
The circumstances to justify a stop might include the behavior
and characteristics of the person detained, as well as the
experience of the officer. United States v. Odum, 72 F.3d 1279,
1284 (7th Cir. 1995). A determination of reasonable suspicion
"must be based on common-sensical judgments and inferences about
human behavior." Illinois v. Wardlow, 528 U.S. 119, 125 (2000).
This determination is made based on the "totality of the
circumstances presented to the officer at the time of the
detention." United States v. Askew, 403 F.3d 496, 507 (7th
Cir. 2005) (quoting United States v. Scheets. 188 F.3d 829, 837
(7th Cir. 1999)). The mere fact that the defendant was in a
high crime area is not enough, standing alone, to warrant a
Terry stop of the defendant. Wardlow, 528 U.S. at 124-25, but
the "courts may consider the defendant's presence in a high crime
area as part of the totality of the circumstances confronting the
officer at the time of the stop." United States v. Quinn,
83 F.3d 917, 922 n. 2 (7th Cir. 1996) (quoted in United States
v. Brown, 188 F.3d 860, 865 (7th Cir. 1999)).
Here, there was more than enough information to warrant Deputy
Woods and Detective Hill approaching the defendant for an
investigatory Terry stop. The information they had received
included complaints about open drug dealing in a high crime area.
In addition, Deputy Woods observed a hand to hand exchange
between the defendant and another male outside the liquor store
as they arrived, and believed a drug exchange had just occurred.
As the Seventh Circuit has stated, "a pattern of behavior
interpreted by the untrained observer as innocent may justify a
valid investigatory stop when viewed collectively by experienced
drug enforcement agents." United States v. Lechuga, 925 F. 2d 1035, 1039
(7th Cir. 1991) (quoted in Askew, 403 F.3d at 508).
Having determined, therefore, that the stop of the defendant
was reasonable under Terry, the court must determine whether
the manner of the stop including stopping the defendant on the
street with guns draw was "reasonably related in scope to the
circumstances which justified the interference in the first
place." United States v. Vega, 72 F.3d 507, 515 (7th Cir.
1995) (quoted in Askew, 403 F.3d at 508). As the court found in
Askew, id., "Drug arrests can warrant intrusive tactics because
of their inherent danger. `Guns are among the tools of the drug
trade,' United States v. Rhodes, 229 F.3d 659, 661 (7th
Cir. 2000), and thus `[a]llowing police to draw their weapons may
be reasonable. . . .'" (quoting United States v. Tilmon,
19 F.3d 1221, 1227 (7th Cir. 1994).) Given the fact that the
defendant did not respond to the officers' repeated requests to
stop; that he was wearing a long jacket that could have been used
to hide a weapon; that Deputy Woods had observed what he believed
to be a drug exchange; and that drug dealers are often known to
carry guns, the Court FINDS that the manner of the stop was
reasonable under the totality of the circumstances.
MOTION TO SUPPRESS STATEMENTS
The defendant also seeks to suppress his statements made at the
time of his arrest. As set forth above, the defendant stated, in
response to Hill's question of whether he had anything he should
not have, that he had crack cocaine on him. In addition, he
responded to Deputy Wood's question about whether he had anything
else by stating yes, nodding towards his jacket where he had a
gun. It is well settled that an officer is entitled to "`ask the
detainee a moderate number of questions to determine his identity
and to try to obtain information confirming or dispelling the
officer's suspicions.'" United States v. Felix-Felix,
275 F.3d 627, 633 (7th Cir. 2001) (quoting Berkemer v. McCarty, 468 U.S. 420, 439 (1984)). An officer also
is entitled "to take reasonable steps to insure [his] own
safety." United States v. Jackson, 300 F.3d 740, 746 (7th
Cir. 2002). An officer therefore may conduct a pat-down search of
the detainee's outer clothing, see Jackson, 300 F.3d at 746.
See United States v. Hendricks, 319 F.3d 993, 1004 (7th
Cir. 2003). Given the Court's finding that the defendant's stop
was based on reasonable suspicion of illegal activity, the
questions posed to the defendant were warranted by the
circumstances surrounding his flight and brief detention.
Therefore, defendant's motion to suppress statements must also
Accordingly, the Court DENIES defendant's motion to suppress
evidence and statements on all grounds.
IT IS SO ORDERED.
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