The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on Defendant's Motion to Suppress Evidence (#14). Following this court's careful consideration of the arguments of the parties and the transcript of the evidentiary hearing held in this case, Defendant's Motion (#14) is DENIED.
On September 8, 2006 Defendant, Terrance L. Rowell, was charged by indictment with knowingly possessing 50 grams or more of a mixture and substance containing cocaine base ("crack"), a Schedule II controlled substance, with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Defendant is represented by retained counsel, Tod M. Urban and Steven R. Hunter. Defendant was released on bond pending trial.
On November 16, 2006, Defendant filed a Motion to Suppress Evidence (#14). In his Motion, Defendant stated that he was operating a motor vehicle on February 1, 2004, at approximately 4:50 p.m.*fn1 Defendant stated that he was driving the vehicle out of a CVS Pharmacy parking lot in Kankakee, Illinois, near the corner of North Washington Avenue and West Court Street. He approached the Washington Avenue exit and turned on his left turn signal. Washington is a two-way street. Defendant stated that, while he was waiting for traffic to clear, a police car drove by southbound on Washington. Defendant had noticed an acquaintance across the street and slightly north of the parking lot exit. Defendant proceeded to turn left out of the parking lot, heading north. Defendant stated that he "made a wide left turn and came to an immediate stop in the parking lane along the curb on the East side of Washington Avenue." Defendant stated that he then turned off his turn signal and turned off his automobile. He stated that, as he stopped and exited his vehicle, Officer Lindgren made a U-turn and proceeded northbound on Washington Avenue. Defendant stated Officer Lindgren ordered him to return to his vehicle.
Defendant stated that he was questioned by police officers and gave responses which he believes the Government intends to introduce at trial. He also stated that the vehicle was searched, and the police officers recovered marijuana and cocaine. Defendant stated that he was eventually issued a traffic citation alleging that he violated 625 Ill. Comp. Stat. 5/11-804(d). Defendant argued that his encounter with the police officers was not voluntary and that there was no basis for the stop of the vehicle because "[t]he police did not have specific articulable facts to give them reasonable suspicion that [Defendant] had committed or was committing a traffic violation, municipal ordinance violation, or crime, nor did they have probable cause to believe that [Defendant] had committed or was committing a traffic violation, municipal ordinance violation, or crime." Defendant asked this court to suppress any statements attributed to him by law enforcement and all physical items seized from his person or automobile. Defendant attached a copy of the traffic citation issued for "Improper use of signal" and a copy of the statute cited in the traffic citation.
On November 30, 2006, the Government filed its Response to Defendant's Motion to Suppress Evidence (#16). The Government stated that the evidence at the suppression hearing would show that the actions of Officer Michael Lindgren of the Kankakee City Police Department were entirely reasonable under the Fourth Amendment so that Defendant's Motion to Suppress should be denied.
On December 15, 2006, a hearing was held on Defendant's Motion to Suppress. At the hearing, Officer Lindgren testified that he has been an officer with the Kankakee Police Department since January 2000. Lindgren testified that, on the day in question, he was on patrol in a marked squad car and noticed a white 1987 Chevrolet Caprice. He testified that his attention was initially drawn to this vehicle because he knew the vehicle was registered to Lance Oliver, a person known to him to have a suspended or revoked driver's license. Lindgren initially saw the vehicle park at the CVS Pharmacy parking lot and saw the driver leave the vehicle and walk to a location to the north in the alley. Lindgren testified that he had received complaints about possible drug activity occurring in the alley. Lindgren started circling the block waiting for the vehicle to come back out and later observed the driver return to the vehicle. Lindgren testified that he could not tell if the driver was Oliver. Lindgren testified that he subsequently saw the vehicle at the parking lot exit. Lindgren testified that he did not see a left-turn signal on but then observed the vehicle pull out of the parking lot and turn left. Lindgren did a U-turn and got behind the vehicle. Lindgren testified that he followed the vehicle a short distance and the driver suddenly turned on his left-turn signal and pulled to the right and parked the vehicle. Lindgren testified that he turned on his emergency lights and pulled behind the vehicle to conduct a traffic stop. On cross-examination, Lindgren testified that he had been watching the vehicle for ten minutes prior to the stop and was "going to pull this car over anyway." Lindgren then clarified that he "was waiting for a cause violation."
Lindgren testified that he approached the vehicle and identified the driver as Defendant, Terrance Rowell. Lindgren testified that, at that time, he smelled the odor of freshly smoked cannabis. He also observed an infant in the front passenger seat with no safety seat. A seat belt was over the child but was not properly secured. Lindgren testified that another officer, Patrolmen Kreissler, arrived and Defendant gave them permission to search the vehicle. During the search of the vehicle, they found over 50 grams of crack cocaine in the pockets of the child in the front passenger seat. Lindgren testified that, during the traffic stop, he issued an Illinois citation and complaint for improper use of signal. Defendant was also charged with a drug offense and child endangerment.
Prior to the hearing, Defendant had asked that the hearing be bifurcated and set for a new date so he would have the opportunity to present testimony from Christopher Mays, who had not appeared at the hearing as expected. This court granted the request and the hearing was continued to February 23, 2007.
On February 23, 2007, the hearing on Defendant's Motion to Suppress resumed. Mays appeared, but both Defendant and the Government decided not to call him as a witness. Defendant was called to testify. Defendant testified that, on the day in question, he borrowed a vehicle from Lance Oliver. He testified that Oliver has a shaved head and light colored skin while he has short hair and dark skin. Defendant testified that he parked in the CVS Pharmacy parking lot and briefly entered the store to make a purchase. He testified that he returned to the vehicle and proceeded to exit out of the parking lot. He testified that he put his left turn signal on and waited for traffic to clear. While he waited, he observed a marked police car go by. He also saw his friend, Christopher Mays, standing on the porch of a house on the same side of the street. Defendant testified that Mays waved him down. Defendant testified that he turned left out of the parking lot and then parked on the right-hand side of the curb. Defendant testified that he kept his left turn signal on because he made a complete, wide turn and then stopped in the parking space. Defendant testified that, after he stopped, he observed the police car making a U-turn through his rearview mirror. Defendant testified that he parked because he intended to walk across the street to see Mays. However, after he started getting out of the car, Lindgren ordered him to get back in the vehicle. Defendant also presented evidence at the hearing that the traffic citation issued on that date was later dismissed because Lindgren did not appear for a scheduled court date.
Following this testimony, this court set a briefing schedule. On March 23, 2007, Defendant filed a Memorandum in Support of Motion to Suppress (#22). On April 6, 2007, the Government filed its Response to Defendant's Memorandum (#28). The Motion to Suppress is now fully briefed and ready for ruling. This court notes that, on April 18, 2007, Defendant's bond was revoked and he is currently in the custody of the U.S. Marshal.
In his Memorandum, Defendant argued that Defendant's testimony was more credible than Lindgren's account of the events preceding the traffic stop. Defendant contended that he testified clearly and positively while some of Lindgren's testimony was incredible and uncorroborated. Defendant contended that, based upon the evidence, Lindgren had no articulable facts on which to base the stop because no traffic violation occurred. Defendant asserted that his claim that no traffic violation occurred is supported by the fact that Lindgren ...