The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
On September 8, 2008 this Court conducted a one-day hearing on the motion to suppress that had been filed by defendant Andre Linear ("Linear"), who is charged with the knowing possession of a firearm (a Baretta .380 caliber semi-automatic pistol) after having previously been convicted of a felony offense (the current alleged offense is criminalized by 18 U.S.C. §922(g)(1) and is colloquially referred to as a "felon-in-possession" charge). This Court has given full consideration to the sharply different versions that were testified to by Linear and by the arresting officer, State Trooper Todd Wilhelmy ("Wilhelmy"), and it sets forth its ruling in this opinion.*fn1
It should be added that following the hearing this Court granted counsel for the litigants a period of 14 days after their receipt of the hearing transcript within which they might wish to supplement their prehearing submissions. Delivery of the transcript to government counsel then took place on September 19, so that the 14-day clock ran out on October 3. Nothing further has been tendered by either party then or since--no doubt because the hearing testimony presented no surprises that had not been addressed in the prehearing filings.
Interestingly, the government's prehearing filing in claimed support of its position placed its principal reliance on the majority opinion of our Court of Appeals in its en banc decision in United States v. Childs, 277 F.3d 947 (7th Cir. 2002). This opinion will address that authority later, after the facts have first been developed.
By way of a threshold summary, this Court's evaluation of the critical testimony is that although some limited portions of Wilhelmy's testimony may have the ring of truth, his version of the controlling events cannot be credited, while on the other hand Linear's version is far more consonant with common sense--especially as to the circumstances of their initial encounter when both were driving on the Stevenson Expressway in the wee morning hours of May 27, 2007.*fn2 Because those circumstances control the propriety--more accurately the lack of propriety--of Wilhelmy's later failure to let Linear go on his way promptly after Wilhelmy had made his traffic stop, it proves unnecessary for this opinion to explore the later events that flowed from that failure.
In terms of that initial encounter, it is most appropriate to begin with one fact on which the differing versions proffered by Linear and Wilhelmy basically agree: Linear's having moved from a right-hand lane on the Stevenson Expressway, where he was driving at about 1 a.m. on May 27, 2007, to the left, followed quickly by Linear's moving back to the right in another lane change.*fn3 Two things are known (and really undisputed) in that regard:
1. Linear was not speeding. Wilhelmy specifically said that he was traveling faster than Linear, and in any event no citation for speeding was added to the six citations ultimately written up against Linear.
2. Linear was not under the influence of alcohol. That too was expressly confirmed by Wilhelmy's observation, as to which more will be said later.
So there is an obvious question posed by those circumstances: What would cause a driver who was traveling at a normal speed, and who was not driving erratically, to make the lane-to-lane movements to which both Linear and Wilhelmy testified? Under Wilhelmy's version of events there would have been no reason at all to do that, for Linear was driving straight ahead in an otherwise clear expressway lane at 1 a.m. In candor, that version is simply not credible. By contrast, Linear has offered a wholly credible explanation: Wilhelmy's having pulled directly in front of him from the right (that is, from the shoulder, because Linear was in the farthest-to-the-right normal traffic lane), requiring Linear (1) to engage in a normal defensive driving measure by hitting his brakes and then cutting to the left to avoid rear-ending Wilhelmy's car, and (2) then, because that forced him into the path of another car traveling at a higher rate of speed, to move to another lane and then ultimately back to his right. That explanation is entirely plausible, is reinforced by Williams' testimony (Tr. 106:22-24 and 109:19 to 110:2) and is wholly consistent with the earlier-stated facts on which Linear and Wilhelmy agree. Accordingly this Court credits it.
What happened next is in dispute. According to Wilhelmy, his observation of Linear's lane changing led him to activate his Mars lights and then his siren so as to cause Linear to pull over and stop, with Wilhelmy's car then stopping on the shoulder a half car length behind Linear's car. That causal relationship might have been legitimate if it had indeed been grounded on Wilhelmy's perhaps reasonable suspicion, based on a premise that Linear's car movements might have been the product of his driving while impaired by alcohol or might otherwise have reflected improper lane usage. But given the far more likely explanation of the initial event that the preceding paragraph has already credited, it is much more probable that Wilhelmy's reaction of bringing Linear to a stop was triggered by something else that Linear did.*fn4
In that respect Linear proffers an innocuous explanation--he says he pulled up to ride parallel to Wilhelmy's car, rolled down the window on the passenger side of his Cadillac and called out (more than once) "Are you okay?" Now this Court was of course not there--it may well have been that Linear's comments were less solicitous than that because, after all, Wilhelmy had cut him off and compelled him to engage in the defensive driving moves described in the opinion. It seems entirely possible--indeed, perhaps more likely--that Wilhelmy's response of requiring Linear to pull over, coupled with what ensued thereafter, was an angry reaction to some provocation (rather than polite inquiry) that was called out by Linear.
Alternatively, if Wilhelmy were somehow to be given the benefit of a considerable doubt (something to which the preceding paragraphs of the text demonstrate that the most probable nature of the occurrence really does not entitle him), perhaps his observation of Linear's lane changes might have created a reasonable suspicion of a possible driving violation by Linear (whether a DUI offense or a lesser offense of improper lane usage). But as already explained here, the far more plausible explanation, and the one that is accepted by this Court, is that given by Linear.
Before the main discussion continues, it may be said parenthetically that this Court also does not credit Wilhelmy's testimony as to the ubiquitous license-plate-light-out violation that is sometimes offered up by traffic officers to bolster an otherwise shaky position. In that respect Wilhelmy has testified persuasively, and in accordance with common sense, that such a violation (if it does exist) more typically results in a warning rather than a ticket if a driver is stopped for that alone. But over and above Linear's vigorous denial that the light was really out, it should be remembered that here Linear ended up being tagged with six alleged violations in the citation issued against him--and in that light*fn5 it is simply not probable that, with the book being thrown at Linear, the license-plate-light-out violation (if it existed at all) would simply have been omitted from the panoply of charged offenses.
And there are some further factors that also discredit Wilhelmy as a witness. As one more example, he has denied that Linear questioned him as to why Linear was being arrested, something that totally defies common sense. It is difficult to conceive of anyone, under the circumstances described by either Linear or Wilhelmy, who would not make such an inquiry. So why would Wilhelmy deny the existence of a nonmaterial fact? Regrettably that is what frequently happens when witnesses get too creative ...