The opinion of the court was delivered by: Stiehl, District Judge
This matter is before the Court on defendant's motion to suppress evidence (Doc. 20) and supplement to the motion (Doc. 21), to which the government has filed a response (Doc. 22). The Court held two days of hearings on the motion, April 5, 2006 and April 28, 2006, and took the matter under advisement pending further briefing by the parties.
The parties filed post-hearing memoranda of law (see defendant's brief at Doc. 44; government's brief at Doc. 46). The government sought and was granted leave to file a supplement (Doc. 49). Defense counsel subsequently sought leave to withdraw due to a conflict of interest (Doc. 50) which was granted after a hearing (see Doc. 52). New counsel,*fn1 James Gomric, entered his appearance and was given leave of Court (Doc. 60) to file a supplement to the motion to suppress by September 1, 2006 which he did ( Doc. 62). In accordance with the Court's Order, the government has now filed its response (Doc. 64) and this matter is ready for ruling.
The defendant is charged in a Superseding Indictment with drug and firearm related charges. Count 1 of the Superseding Indictment charges that on or about July 16, 2005, the defendant, having previously been convicted of a felony punishable by imprisonment for a term exceeding one year possessed, in and affecting commerce, a firearm, Bryco Arms, Model J-22, .22 caliber semi-automatic pistol, in violation of 18 U.S.C. § 922(g)(1). Count 2 charges that on or about July 16, 2005, the defendant possessed with the intent to distribute 0.5 grams of a mixture or substance containing cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Count 3 charges that on or about July 16, 2005, the defendant, during and in relation to a drug-trafficking crime, that is, possession with intent to distribute 0.5 grams of cocaine, as alleged in Count 2, the defendant possessed a Bryco Arms. Model J-22, .22 caliber semi-automatic pistol, all in violation of 18 U.S.C. § 924(c).
The defendant's motion to suppress seeks to suppress evidence seized as a result of a traffic stop of the defendant's car on July 16, 2005. The defendant asserts that there was not probable cause to stop his vehicle. In his supplemental memorandum in support of the motion to suppress, the defendant asserts that the length of the traffic stop prior to the discovery of the contraband establishes that the stop was pretextual.
A. Evidence Adduced at the Suppression Hearings
The defendant's arrest was the result of the vehicle stop of the defendant. The parties stipulated that on the date in question, July 16, 2005, sunset would have been at 8:24 P.M. East Alton Police Officer Christian Cranmer testified that on the night in question he was working a 6 P.M to 6 A.M shift by himself. At approximately 9:32 he observed a large white, four-door car, a Mercury, traveling down Ohio Street and noticed that the license plate light was not functioning, in violation of Illinois state law. He noticed that the taillights were on, but that the license plate was not illuminated. Officer Cranmer turned his squad car around, activated his lights and pulled over the white Mercury. The driver of the car made a hard left turn, crossed the other lane of traffic and pulled into a parking lot, very close to a parked car in the lot. This action alarmed Officer Cranmer who positioned his squad car so that the Lincoln could not back out of the parking lot. Cranmer radioed in the traffic stop, and asked the driver to get out of the car. He noted that there was a passenger in the car. Cranmer then asked the defendant for his driver's license and name, which the defendant produced. The defendant appeared nervous, fidgety, and would not make direct eye contact with Cranmer. Because of the defendant's demeanor, Cranmer decided to question the defendant further. Cranmer asked if there was anything illegal in the car, to which the defendant replied, "No." The police report and tow record indicate that the stop was made at 9:32 P.M.
Two back-up officers, Shook and McCormick, arrived a few minutes later. At that time, Cranmer asked the defendant if Cranmer could search his vehicle, saying "Do you have any objection if I search your vehicle?" The defendant gave his consent, and Cranmer told McCormick that he had consent to search. McCormick stayed with the defendant while Officer Shook asked the passenger, a woman, to get out of the car. Cranmer was looking into the passenger's door as she got out and saw a white, rock-like substance packaged in a clear plastic wrap, fall between her legs and onto the passenger seat. He also saw what he believed was a container of crack cocaine. He believed, based in part on the way that the object was packaged,*fn2 that it was crack cocaine and asked the other officers to place the defendant and his passenger in handcuffs. The defendant was placed in Cranmer's squad car and the female passenger, Tiesha Ford, was placed in Officer Shook's car.
Cranmer inventoried the car, and found, between the passenger's side and the driver's seat the chrome portion of a pistol that was underneath the front seat. Officer Shook seized the gun from under the seat. The car was later towed. The defendant and Ford were questioned at the Police Department later that day.*fn3 At the police department, Cranmer learned that the defendant was a convicted felon, and of the defendant's criminal history.
Officer McCormick testified that he has been a police officer for approximately 2 years, including one year part-time for the South Roxana Police Department. On the night in question, he was in training, working with Officer Shook on the night shift. Acting as backup, he and Officer Shook assisted in a traffic stop by Officer Cranmer at approximately 9:30 P.M.. Upon arriving, he observed that Cranmer had the defendant out of the car and that the car was very close to the next car in the lot with less than a foot of clearance between the cars. As McCormick arrived, he was asked by Cranmer to stand with the defendant and Cranmer told him that the defendant had given his permission to search the car. McCormick placed the defendant under arrest after Cranmer briefly went into the passenger side of the car, and then quickly got out and gave McCormick the sign to handcuff the defendant and place him under arrest.*fn4 The female passenger was taken into custody by Officer Shook. McCormick checked the defendant for any weapons and then put him into the squad car. Cranmer and Shook then searched the defendant's vehicle. McCormick asked Cranmer what he had found, and was told crack cocaine and a loaded handgun. The vehicle was inventoried and impounded. He learned of the defendant's criminal history at the jail later that evening.
He testified on cross examination that the defendant appeared nervous to him while he was watching the defendant before placing him under arrest, because the defendant kept trying to turn around and face the car and his voice was shaky.
The defendant presented several witnesses, including his father, Samuel Hogsett, Sr., who testified that he and his wife purchased the used Mercury for $1,000 for their son and titled it in his wife's name. The defendant had seen the car for sale along the side of the road, and Hogsett, Sr. testified that although it needed "some work," it did not need any electrical work and all the lights worked. He also testified that when he went to pick up the car from the tow lot, although the inside was torn up and it had a flat tire, the lights were working, including the rear registration light. He also testified that he had observed the rear registration light working on his son's car shortly before July 16, 2005, but that it was "dim."
James Gleason testified for the defendant that he observed the traffic stop on July 16, 2005, which occurred on a parking lot around the corner from his mother's house. He noticed that the stop involved a large white car, and a couple of police cars. Gleason testified on direct examination that he believed it was not totally dark, but he was unsure of that fact. Gleason stated that he had purchased cocaine from the defendant, whom he knew as "Junior," on several occasions (as many as 40-50 times) and had purchased dime bags of marijuana from the female in the defendant's car, but did not know her name. Gleason also testified that he had seen the defendant with a gun, but had only seen the butt of the gun. The defendant ...