The opinion of the court was delivered by: Stiehl, District Judge
The defendant has filed a motion to suppress evidence and statements*fn1 (Doc. 21) to which the government has filed a response (Doc. 26). The Court held two days of evidentiary hearings on the motion and took it under advisement pending post-hearing briefing by the parties, which have now been filed (Docs. 37, 39). Defendant seeks to suppress evidence and statements that resulted from the his arrest on April 21, 2006. Defendant asserts that reasonable suspicion to stop him did not exist, and therefore, the evidence seized should be suppressed.
EVIDENCE FROM THE HEARINGS
On the evening of April 21, 2006, an East St. Louis police dispatcher reported that an unknown female had called 911 to report a man standing in the middle of North 9th Street firing a gun. The 911 tape reveals that a call came into the 911 system, but that the caller hung up. The 911 operator used auto re-dial and got a woman who reported that there was someone in the street shooting a gun, not at anyone, just shooting the gun. The caller reported that the man was wearing a "white shirt with multicolored stripes." The tipster indicated, however, that she was not going to get any closer to the window to give a further description because of the shooting. The 911 dispatcher sent out a call to the officers in the area to respond to a man shooting a gun, wearing a white, multicolored shirt.
1. Testimony of Kendall Perry
At the evidentiary hearings, the government presented the testimony of East St. Louis Police Officer Kendall Perry who stopped and eventually arrested the defendant. Officer Perry testified that at approximately 3:45 A.M. on April 21, 2006, Officer Gregory was dispatched to a report of shots fired in the area of the 1300 block of North 9th Street, near a night club called "Page Ten." However, Officer Perry answered the call because he was closer and went to assist. Officer Perry heard the dispatcher describe the suspect as a black, heavy-set male with a multi-colored shirt. As Officer Perry pulled up to the Page Ten nightclub, a black male flagged down his car and reported that there was a rather heavy-set, black male in the front of the club with a multi-colored shirt who was shooting up in the air. Officer Perry testified that he did not suspect the man who flagged him down, or another man standing outside the Page Ten, because they were wearing black motorcycle vests, and did not match the description of the shooter. Neither of the men on the corner was wearing multicolored shirts. The man then pointed to Northbound 9th Street as the direction that the shooter had gone. Officer Perry looked in the indicated direction and saw a man wearing a multicolored shirt, standing in a fairly well-lighted field at the corner, approximately 30 feet from the nightclub. He was wearing a plaid-like, multi-colored shirt, with dark colored jeans.
Perry pulled up to the area, and yelled from his car, "Police Department. Stop." The defendant started walking away from Officer Perry toward an alley. Perry got out of his car, again yelled, "Police Department. Stop," but the defendant did not stop. Perry saw the defendant pick up a small object, and then take something, that appeared to be a black, metal handgun, and throw it away from him. Perry heard the object hit the grass and stated that it sounded like it had some weight to it when it landed. Approximately 10-15 feet from where he had started, the defendant stopped. Perry told him to get on the ground, handcuffed him and placed the defendant in custody.
Once his back-up officer, Officer Anderson, arrived the defendant was searched and placed into the back of the squad car. The search of the defendant revealed large caliber rounds in both front pockets of his pants. Using his flashlight, Officer Perry than began searching the area where he had seen the defendant drop the item earlier and found a small Derringer two-shot handgun. The gun was placed into an evidence bag and taken to the police station. Officer Perry testified that he was unable to question the men who had been in front of the Page Ten because they were gone by the time he had apprehended the defendant.
2. Testimony of Lester Anderson
East St. Louis Police Officer Lester Anderson testified that on the night of April 21, 2006, he responded to a call of shots fired in the area of 9th and Exchange. As he was driving to the area, Officer Anderson heard a call from Officer Perry that Perry had a subject with a gun. Perry's voice sounded as if he were out of breath and, perhaps, running. When Officer Anderson arrived at the scene the defendant was on the ground in a field at about 9th Street. The defendant appeared to be sweating and out of breath, indicating to Officer Anderson that he had been running before being taken into custody. Because the defendant is a large individual, Officers Anderson and Perry both lifted him off the ground and Officer Perry searched the defendant's pockets, finding the ammunition. Officer Anderson described the defendant's clothing as a multicolored flannel jacket.
After the defendant was detained and secured, Perry searched his person and found eight .44 caliber rounds in his front pants pocket. Perry then called for backup who will testify that when he arrived the defendant and Perry both appeared to be out of breath as if they had been running. The defendant asserts that there was not probable cause to conduct a Terry stop of the defendant.
The defendant presented Gary Traylor, the defendant's brother, who testified that he had been with the defendant on the evening in question and had seen that his brother was wearing a light blue shirt. Gary Traylor also testified that their aunt Rosie Springer lived near the Page Ten Bar and that the defendant would stay at her home most evenings. To get to her house from the Page Ten, he testified that you would walk across a field and then walk down a path to her house. In addition, he testified that he picked up the defendant's clothing from the St. Clair County Jail after his arrest, and that there were two shirts and a pair of pants, and some personal items with his property. The defendant's booking photos show him in a blue T-shirt with a black hooded sweatshirt over the T-shirt.
At the second day of hearings, the government presented the testimony of Donald Watson, Desk Sergeant for the East St. Louis Police Department. Sgt. Watson testified that the booking sheet indicates that when the defendant was booked on April 21, 2006, he had a hooded jacket, and may have had a separate jacket. He ...