The opinion of the court was delivered by: Matthew F. Kennelly United States District Judge
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
A jury convicted Darnell Thompson of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Thompson, now represented by new counsel, has moved for entry of a judgment of acquittal, to arrest judgment, or for a new trial. For the reasons stated below, the Court denies Thompson's motions for a judgment of acquittal and to arrest judgment but grants his motion for a new trial.
On January 21, 2006, a Chicago police officer arrested Thompson at a 7-Eleven store on the north side of Chicago after the officer claimed to see Thompson exceeding the speed limit and driving erratically. Officers searched the Isuzu sport utility vehicle that Thompson had been driving and found a handgun on the floor beneath or behind the driver's seat. A grand jury indicted Thompson, who had a prior felony conviction, for violating section 922(g)(1).
1. Hearing on Defendant's Motion To Suppress Evidence
Thompson was initially represented by appointed counsel, who filed a motion to suppress the firearm on the ground that the police had obtained it as the result of an unlawful search of the Isuzu. Thompson thereafter retained a new attorney. On February 4, 2008, the Court conducted an evidentiary hearing on the motion to suppress.
At the hearing, Chicago police officer Timothy Walter testified that on the night of January 20-21, 2006, he was assigned to traffic enforcement duty in the 19th police district and was working the 10:00 p.m. to 6:30 a.m. shift. Around 4:00 a.m., he was on DUI (driving under the influence) enforcement patrol, driving a marked squad car north on Kedzie Avenue approaching Irving Park Road, when he saw Thompson's Isuzu driving south on Kedzie Avenue in excess of the thirty mile-per-hour speed limit and driving to the left of the center line. Walter turned and followed the Isuzu; he was traveling forty-five miles per hour. In the 3900 block of North Kedzie Avenue, the Isuzu drove completely into the oncoming lane of traffic and then drove through a stop sign at Byron Street at the same rate of speed. Walter activated the lights and siren on his car, and the Isuzu came to a stop in the parking lot of a 7-Eleven store on the northwest corner of Kedzie Avenue and Grace Street. About thirty to forty-five seconds had passed since Walter had first seen the Isuzu.
Walter got out of his squad car and approached the driver's side of the Isuzu. At this point, Walter said, he called Chicago police officers John Maclaren and Chris Fraterrigo, knowing Maclaren to be certified to conduct breathalyzer tests.
As he approached the Isuzu, Walter observed Thompson sitting in the driver's seat with the window open. Walter asked Thompson for his driver's license, vehicle registration, and proof of insurance; Thompson picked up some papers, fumbled them, and dropped some, and then told Walter that he was "driving on a ticket" and did not have his license and that his insurance card was at his home. Walter testified that he smelled a strong odor of alcohol coming from Thompson's breath and that Thompson had bloodshot, glazed, and glassy eyes, spoke with slurred and mumbled speech, and appeared disoriented.
Walter asked Thompson to get out of the car, and Thompson complied. Walter observed that Thompson appeared unsteady. Walter guided Thompson into the store to conduct field sobriety tests on a flat and dry surface, as the parking lot was slushy from snow that was still falling. Walter described his training to conduct field sobriety tests and stated that he administered several such tests, all of which Thompson failed. Walter stated that he then placed Thompson under arrest for driving under the influence of alcohol and the other traffic offenses he had observed, advised Thompson of his rights, and placed him in handcuffs. Walter then walked outside the store with Thompson and put him in the rear seat of the squad car.
Walter stated that while he was sitting in his squad car after arresting Thompson, he saw officer Maclaren walk up to Thompson's Isuzu and open the driver's door. Shortly thereafter, Maclaren signaled Warren to come over to the Isuzu. Walter directed Fraterrigo to stand at the squad car where Thompson was seated and then approached the passenger side of the Isuzu and looked in through the back door, which he opened or was already open. Maclaren shone his flashlight through the driver's front window onto the rear floor of the Isuzu and pointed; Walter observed the handle of a pistol that he could see protruding from under the rear of the driver's seat. Walter instructed Maclaren to seize the gun, which Walter identified in court.
Walter testified on cross examination that he had transported Thompson to the 19th district police station but stated on redirect that he followed the vehicle in which Thompson was transported. At the station, Walter performed a custodial search of Thompson. Walter signed off on papers allowing the Isuzu to be towed and impounded, and he believed the car was then towed and impounded as a result. He identified a report stating that the Isuzu had been towed from the police station. Walter stated that to retrieve a vehicle that has been towed by the Chicago Police Department in connection with a DUI arrest, the owner must request an administrative hearing and pay a fine and a fee and cannot obtain the vehicle the same day it is towed. Walter said he understood that Maclaren had driven the Isuzu to the police station, as Maclaren gave the keys to Walter there. When asked directly, however, Walter said he had not seen what happened to the Isuzu. Walter denied returning the car keys to Thompson's wife that morning.
Officer John Maclaren testified that at 4:00 a.m. on January 21, 2006, Walter called him to the 7-Eleven store at Grace and Kedzie, and Maclaren drove there with his partner, Chris Fraterrigo. He observed Walter's car and the Isuzu in the store's parking lot. Maclaren entered the store, where he saw Walter conducting a field sobriety test on Thompson. After Walter finished, Maclaren said, "[w]e escorted Officer Walter with the subject back to Officer Walter's car . . . ." Feb. 4, 2008 Tr. 39. Walter patted Thompson down, handcuffed him, and put him into the rear of the squad car. Once Thompson was handcuffed, Maclaren went to Thompson's car and searched it. Maclaren stated that using his flashlight, he observed a pistol on the floorboard behind the driver's seat. He first saw the gun while looking in through the rear passenger door.
In contrast to Walter, Maclaren said he could see the entire gun on the floor behind the seat; it was not under the seat. He motioned to Walter to come to the car and then showed Walter the pistol, pointing to it with his flashlight. Maclaren stated, in contrast to Walter, that when he showed Walter the pistol, he (Maclaren) was still standing near the rear passenger door; he did not recall where Walter was standing. Maclaren then retrieved the pistol and unloaded it. At 5:27 a.m., at the police station, he administered a breathalyzer test to Thompson, which showed a blood alcohol concentration of .166.
Thompson testified at the hearing that after he was pulled over by Walter into the 7-Eleven parking lot, Walter asked for his driver's license and insurance. He replied that he did not have his license because he was driving on a ticket. Walter took the ticket and returned to his squad car. He later came back and asked Thompson to turn off the car and give him the keys; Thompson complied. Walter asked Thompson to step out of the car so that Walter could conduct a field sobriety test. Walter directed him to go inside the store for the test because it was snowing and the parking lot was slushy.
Thompson said that after conducting the sobriety test, Walter handcuffed him while they were still inside the store and walked him to the squad car. Thompson said he had not seen any of the other officers enter the store. As they were exiting the store, Thompson saw two officers at his car. Thompson could tell they had already conducted a search, because the Isuzu's driver's side doors were open, and one of the officers, who was standing on the driver's side of the car, was saying "look what we have here" and was holding what appeared to be a firearm. The other officer was on the passenger side of the Isuzu. Thompson was placed into Walter's squad car, and Walter then returned to the Isuzu and spoke with the other officer. He observed officers continuing to look into his car with flashlights. He was taken to the police station; his Isuzu remained in the parking lot.
At the police station, Thompson tried unsuccessfully to contact his wife and then contacted a friend and asked the friend to call his wife to let her know he was at the Belmont and Western police station. He remained in jail for a little over two days -- from early Saturday morning, when he was arrested, until Monday evening. His wife picked him up at the jail in the Isuzu. Thompson stated that he never received any notice indicating the car had been impounded and that to his knowledge, his wife did not have to go to an auto pound to retrieve the car.
On cross examination, Thompson denied he was driving forty-five miles per hour. He admitted he had been drinking earlier in the evening. He also admitted that he had been convicted of several felonies.
Mrs. Thompson also testified at the hearing. She stated that on the morning of January 21, she received a call from one of Thompson's friends who said Thompson had been arrested, and then she received a call from Thompson. A relative drove her to the Belmont and Western police station. She went to the desk and inquired about her husband; an officer came out and told her what Thompson was being charged with. The officer gave her the car keys and told her the car was at the 7-Eleven at Kedzie and Grace. She never got a notice of impoundment or of an administrative hearing, and she did not have to pay any fees or fines or fill out any forms. She believed the officer who gave her the keys was named Walter but identified the officer as having gray hair -- which Walter did not appear to the Court to have.
The government argued that the search of Thompson's car was justified as a proper search incident to arrest or as a probable cause-based search of an automobile. The defense argued that there was no probable cause to search the Isuzu because there was no indication that the vehicle might contain evidence of the DUI offense for which Thompson was arrested (or, for that matter, the other traffic charges) and that the search was not incident to arrest because it took place before the arrest. In that regard, the Court noted the possibility of an inevitable-discovery claim if the search happened too soon to be considered incident to Thompson's arrest. Defense counsel responded that there was no evidence that the car inevitably would have been searched following an arrest of this type and that the inevitable discovery doctrine could not be used to make good an improper search. Counsel also argued that there was no evidence that the car was impounded, which if true might have provided a proper basis for a search. In rebuttal, the government argued that a search incident to arrest was, in fact, inevitable. The government stated that it was not relying on the inevitability of an inventory search pursuant to an impoundment, as there was no indication the car had been impounded. Finally, the government argued that the Court did not need to make credibility findings to decide the motion and asked the Court not to make such findings unless absolutely necessary.
2. The Court's Ruling On The Motion To Suppress Evidence
The Court denied the motion to suppress in an oral ruling. The Court noted that Thompson had not disputed the propriety of the stop of his vehicle or the propriety of his arrest for driving under the influence. The Court also noted that it was undisputed that the Isuzu had never actually been impounded. In addition, the Court noted the inconsistencies in the officers' testimony regarding where they saw the gun and where they were when they saw the gun.
The Court noted that Walter had testified that Maclaren was present in the store when he placed Thompson under arrest and handcuffed him; the Court indicated that it found that testimony "a little bit problematic." Feb. 4, 2008 Tr. 101. The Court further stated that it found Maclaren's testimony "somewhat problematic" due to his lack of recall. Id. For purposes of the motion, however, the Court determined -- without making specific credibility findings -- to credit Thompson's testimony regarding the sequence of events: he was taken into custody and handcuffed inside the store, and as he exited the store, Maclaren was already standing there holding the gun. If that was so, the Court stated, it was a strong indication that the search had taken place prior to Thompson's arrest.
The Court stated that "there was likely a showing that there was probable cause to believe that the car could contain contraband based on the evidence of the erratic driving and smell of alcohol on [Thompson's] breath" but declined to make a definitive decision on that point. Id. 104. Rather, the Court concluded, the government had shown that "a search incident to arrest was an inevitable result of this type of arrest and that the gun would have been found in that type of a search." Id. The Court acknowledged that the inevitable discovery doctrine requires "an appropriate showing that the search would have been done, and I think there is enough evidence here for the government to have established that a search incident to arrest would have happened maybe two minutes later than it did happen, but that it would have happened." Id. 105.
3. Pretrial Colloquy Regarding Certain Evidentiary Issues
Following the Court's ruling, there was a discussion about certain evidentiary matters. The government made an oral motion to preclude the defense from questioning Walter at trial regarding a disciplinary finding in 1993 that he had made a false statement in an internal police investigation. Upon inquiry whether he intended to go into this issue, defense counsel initially said, in effect, that he did not know:
DEFENSE COUNSEL: Well, your Honor, quite frankly, I have not spoken to my client about that. I don't imagine that it is something that we did [sic] make a big part of the cross-examination.
Id. 108. The Court thus deferred ruling on the matter but precluded defense counsel from going into it in opening statement until the Court had a chance to rule. Defense counsel went on to state that he though he did not think it would be "that big of a deal" in cross-examining Walter, he believed he should have the right to inquire regarding the adverse finding because Walter's credibility would be a significant issue in the case.
Id. 109. The Court discussed some of the potential issues and determined to table the topic until later.
Before counsels' opening statements were delivered two days later, the government told the Court that Walter had advised them that he had appealed the adverse credibility finding and prevailed, and that the disciplinary action against him was vacated. Though the prosecutor had not obtained written confirmation of this, he made a record of the point to give defense counsel fair warning that he would elicit this testimony from Walter if defense counsel cross examined him on this issue.
A jury was selected on February 5, 2008, and the trial began the next day. Prior to calling its first witness, the government introduced a stipulation that prior to January 21, 2006, Thompson had been convicted of a crime punishable by a term of imprisonment of more than one year.
Officer Walter, who testified as the government's first witness, essentially repeated his testimony from the suppression hearing regarding his observation of Thompson driving on the early morning of January 21, 2006, his initial encounter with Thompson when he approached the Isuzu in the 7-Eleven parking lot, his summoning of the other officers, and his conduct of the field sobriety tests. Walter testified that while finishing up the third of four field sobriety tests, he saw Maclaren and Fraterrigo pull into the parking lot. After completing the final field sobriety test, Walter testified, he placed Thompson under arrest, handcuffed him, and advised him of his rights, and he and Maclaren walked Thompson to the squad car and placed in the rear seat. At that point, Walter said, Maclaren walked to the Isuzu and opened the door, while Walter sat in his car and ran a search of Thompson's license plate.
After a short interval, Maclaren signaled Walter to come to the Isuzu. Walter got out of the squad car and asked Fraterrigo to stand by the car and watch Thompson and then walked to passenger side of the Isuzu and looked inside. Maclaren was shining his light inside the car toward the rear of the driver's seat. Walter said that he, too, shone his light in that area and saw "the butt of a semiautomatic pistol underneath the driver's seat." Feb. 6, 2008 Tr. 35. He directed Maclaren to take custody of the weapon; Maclaren did so and brought the weapon to Walter, who examined it and then handed it back to Maclaren, who unloaded it. Walter identified as an exhibit the gun recovered from the Isuzu.
On cross examination, defense counsel elicited that Thompson was cooperative after Walter stopped him and that he had pulled over within thirty seconds after Walter turned on his siren. Walter stated that he pulled Thompson over because he was speeding and had driven into the oncoming lane of traffic. Asked if he had ticketed Thompson for those offenses, Walter said that he "gave [Thompson] many tickets for each and every offense, yes." Id. 41. When shown an abstract of Thompson's driving record that did not identify any such tickets, Walter said he believed state prosecutors had dropped those charges.
Walter further testified that he handcuffed Thompson while inside the 7-Eleven store and that Maclaren was "in the doorway" of the store when Walter walked Thompson out and opened the door for them. Asked whether Maclaren had ever entered the store, Walter said "[h]e was standing in the doorway as I finished the standard field sobriety test." Id. 42. Walter stated that when he later looked inside the rear of the Isuzu after Maclaren summoned him to the car, Maclaren was standing at the driver's side of the car, with the driver's door open, and Walter approached the rear passenger door. Walter repeated that what he saw was a gun underneath the back of the driver's seat and that he "could see the handle sticking out"; the gun was "underneath the rear of the seat," not on the floor behind the seat. Id. 44-45. Walter stated that he had not seen a gun in the car, on the front seat, or on the front floor when he first approached Thompson's car. He also stated that he never saw Thompson reach behind the driver's seat.
Officer Maclaren, the government's second witness, testified that after being summoned by Walter, he drove with his partner to the 7-Eleven. After parking, he walked toward the door of the store, where he observed Walter conducting a field sobriety test. He waited inside the store near the doorway and then saw Walter escort Thompson toward the door. Maclaren and his partner followed Walter to his squad car, where Walter patted Thompson down, put him in handcuffs, and placed him in the back of the car. After Thompson was handcuffed, Maclaren and his partner did a "custodial search" of the car and found a pistol. Id. 50. The pistol was located "behind the driver's seat on the floor." Id. 51. He identified the gun in court. Maclaren stated that he later inventoried the pistol and the ammunition it had contained.
On cross examination, defense counsel again elicited from Maclaren that he had, in fact, entered the 7-Eleven store. Maclaren said he had begun to search Thompson's car while Walter was putting Thompson into Walter's squad car. According to Maclaren, the pistol was not underneath the driver's seat; rather, it was on the floor behind that seat. When he saw the gun, Maclaren said, he was standing outside the rear passenger side door, with the door open, looking in. That is when he asked Walter to come over to the car. Maclaren did not recall where Walter stood when he came to the car to look inside.
Herbert Keeler, a Chicago police department evidence technician, testified that he had tested the pistol for fingerprints and found none. He explained the properties of the pistol and other factors that decreased the likelihood that fingerprints would be left by someone handling the gun. Keeler stated that when he does testing on weapons that are handled in a conventional manner, he never recovers identifiable fingerprints. Keller testified, on both direct and cross examination, that he had tested the weapon on May 3, 2006; defense counsel elicited that this was about three and one-half months after it was recovered.
Hamilton Beal, an agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, identified a certified copy of the title for the Isuzu, showing Thompson as the registered owner. Beal demonstrated how the pistol is loaded and how a round is chambered.
b. Colloquy Prior To The Defense Case
After Beal's testimony was completed, the government rested its case. After the Court denied Thompson's motion for a judgment of acquittal, the government sought to preclude testimony by Mrs. Thompson, and the Court inquired what topics Mrs. Thompson's testimony would involve. Defense counsel stated that the testimony would concern how the interior of the Isuzu is structured and, in addition, the fact that she had picked up the car and then picked up Thompson at the Cook County Jail. When the Court inquired why the latter topics were relevant, defense counsel stated that he intended to recall the police officers as witnesses to establish the procedures for impounding the car and to show their lack of credibility by questioning them with regard to the impoundment issue. The Court noted that typically it is inappropriate to call a witness simply to set up impeachment of that witness. Defense counsel stated that because the government had not inquired of these witnesses regarding the events following Thompson's arrest, he had believed that inquiry on cross examination would be outside the scope of the direct examination. The Court indicated that it did not agree with that assessment.
Following further discussion, however, the Court concluded that the circumstances that [Mrs. Thompson] went to the police station, was given the car keys, went to the 7-Eleven, picked up the car and drove it home, I don't think that is unfairly prejudicial to the government. I mean, it's sort of a non-event in the scheme of things standing by itself, okay. So I am not going to preclude [the defense] from doing that.
Feb. 6, 2008 Tr. 97-98. On the topic of recalling the police officers to set up impeachment regarding the impoundment of the car -- a topic the government had not addressed in its questioning of the officers -- the Court stated that the government had rested its case. The witnesses weren't questioned about the subject of the impoundment or what happened to the car by either lawyer during the testimony of either Maclaren or Walter. To call them back now simply to establish that Walter says . . . [that] the car was driven back to the police station and simply to set up than impeachment him by Mrs. Thompson . . . , I don't think you can appropriately do that now. That is, as [the prosecutor] says, basically calling a witness simply to set up impeachment of that witness. So I am not going to permit you to do that.
Following the Court's ruling, Thompson himself expressed an objection, stating, "Your Honor, I feel like I was ineffectively represented then. This was established yesterday. Not one time did my attorney presented [sic] evidence to that, not one time." Id. 100. The Court understood this objection to concern defense counsel's failure to impeach the police officers during their testimony in the government's case in chief.
Discussion ensued concerning other evidentiary issues the government raised regarding potential defense witnesses. The Court then took a break. After the break, the Court stated:
The reason I took that break is I wanted to do a little bit further [sic] thinking about this issue that was discussed before that prompted Mr. Thompson's comment. Obviously, the witnesses are not here, and, you know, as I said before, . . . I am not going to make any kind of a judgment regarding the significance or materiality of the cross-examination or the potential cross-examination that I think probably could have been done during the cross of Walter and Maclaren.
But I will tell you I am a little bit concerned. Mr. Thompson's comment gives me, I think, some legitimate concern about issues that could be remedied now, I think potentially, as opposed to having to deal with them at some later point down the road either in appeals of this proceeding or in some other form of a proceeding.
And I guess my inclination would be to permit [defense counsel] to, I think what I would call it is, reopen his cross of Officer Maclaren and Officer Walter for the limited purpose of establishing what happened to the car. And he then either will or will not get the contradiction into evidence, but that is it because that is all I have been told about, is establishing this contradiction regarding what happened to the automobile afterwards. I think it probably was and in all likelihood was within the scope or would have been within the scope.
Mrs. Thompson was the first defense witness. She testified that she received a call from a friend of Thompson, and then a call from Thompson himself, advising her that he had been arrested. Thompson remained in custody over the weekend and was released a couple days later. She picked him up in the Isuzu after he made bail. Mrs. Thompson testified that she had picked up the Isuzu at the 7-Eleven on January 21, after an officer at the police station gave her the keys and told her where the car was. She was not required to fill out any forms or pay a fee and was never told the car had been impounded. She said the name of the officer who gave her the keys began with a "W" and that she believed it was officer Walter -- as the officer told her that he had Thompson in a back room and also told her what he had been charged with.
Mrs. Thompson testified that she drove the Isuzu on a daily basis. She described the car generally and then testified that it is impossible for the driver to place an object under the driver's seat because of non-removable electrical or other equipment that is part of the car and is located there. Mrs. Thompson identified several photos of the area under the driver's seat of the Isuzu that illustrated her testimony. She stated that this was the condition of the Isuzu on January 21, the date Thompson was arrested.
On cross examination, Mrs. Thompson said she did not remember the time on January 21 when she picked up the car keys. She also stated that the only space under the driver's seat of the Isuzu is the space needed for the equipment she had previously identified; there is no additional space. Mrs. Thompson testified that her husband drives the car and is the owner of the car.
The prosecutor then showed Mrs. Thompson the gun and asked, "[I]s this your gun?" Id. 132. Defense counsel objected and requested a sidebar. The ...