The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On June 3, 2008, Defendant Dezmin Star Woodland was indicted on one count of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On September 30, 2008, Defendant, through his court appointed counsel Assistant Federal Public Defender John Taylor, filed his First Motion to Suppress Evidence Pursuant to Rule 12 and 47 of the Rules of Criminal Procedure (#10). Along with the Motion (#10) Defendant filed that same day a Bench Brief in Support of the Motion to Suppress Evidence (#11). On December 1, 2008, the government, through Assistant United States Attorney Colin Bruce, filed its Response (#12). On January 22, 2009, an evidentiary hearing was held on the Motion to Suppress (#10). The transcript from the hearing was filed on January 27, 2009. On February 24, 2009, Defendant filed his Brief in Support of Motion to Suppress (#15) and the government filed its Response (#17) on March 31, 2009. For the following reasons, Defendant's Motion to Suppress (#10) is DENIED.
An evidentiary hearing on Defendant's Motion to Suppress (#10) was held before the court on January 22, 2009. The government waived an opening statement and accepted the burden of the presentation of evidence.
The first witness called by the government was Lonny Llewellyn, the arresting officer. Llewellyn was a patrol officer for the Decatur, Illinois, Police Department and had been with the department for ten years. On May 17, 2008, Officer Llewellyn was on patrol between approximately 11:30 and midnight, in full police uniform, near the area of business known as Block's Brewery. It was part of Llewellyn's usual practice on that shift to patrol the area of Block's because on weekends it was known for trouble. Officer Llewellyn had patrolled the downtown third shift for about a year. Llewellyn knew many of Block's clientele to be gang members who now frequented and caused trouble at the bar. These gang members had moved to Block's when a previous bar they frequented, known as the Viper Pit, closed down. Llewellyn and the police had been called plenty of times to the Viper Pit to break up fights and investigate property damage and they were now starting to see the same problems with the same clientele at Block's.
At about 11:55 pm that night Llewellyn drove through the parking lot at Block's Brewery and observed Defendant sitting in a vehicle parked in the parking lot. Defendant, who Llewellyn had never had contact with before, was in the passenger seat with the window down. Defendant was the only person in the vehicle. When Llewellyn first observed him, Defendant was sitting upright looking out the window, but as Llewellyn drove towards him and made eye contact, Defendant slouched over in the seat "as if he were trying to hide" from Llewellyn. Llewellyn felt the way Defendant was acting was suspicious because it looked as if Defendant was trying to hide from him.
Llewellyn parked three or four cars away from Defendant and approached Defendant's vehicle on foot.
Llewellyn asked Defendant what he was doing and Defendant said he was waiting for his cousin. Defendant told Llewellyn his name and the officer returned to his squad car to run the name through the LEADS system. Llewellyn then learned that Defendant was on parole through the Illinois Department of Corrections (IDOC). Llewellyn returned to Defendant's vehicle and asked him if he was on parole, and Defendant admitted that he was. Llewellyn ordered Defendant out of the car and told him he was going to search him. Llewellyn never pointed his gun at Defendant during the encounter. Defendant exited the car and Llewellyn patted him down. Through his training with the Decatur Police Department, Llewellyn knew that he had the ability to search anyone on parole through the IDOC. Llewellyn noticed a bulge in Defendant's right front pocket and could immediately tell it was a gun. Llewellyn removed the gun from Defendant's pocket and handed it to a backup officer who had arrived on the scene. Defendant was then placed under arrest.
Officer Llewellyn was then cross examined by Federal Public Defender John Taylor. Llewellyn had responded to several fights in the parking lot at Block's. Llewellyn stated that he was not blocking Defendant's car with his squad car when he approached him on foot. The parking lot in question was also frequented by gang members and "troublemakers." Attorney Taylor asked Llewellyn what suspicions he had of any possible illegal activity being done by Defendant at that time. Llewellyn stated that it was his experience as a patrol officer of ten years that people sitting in their cars outside of bars were not going inside. Or, at the Viper Pit, people would exit the bar to their car, smoke marijuana, and go back inside the club. Also, there were hand to hand drug transactions in bar parking lots, including the Viper Pit. However, Llewellyn did not suspect Defendant of a "hand-to-hand" and did not observe him smoking marijuana nor did Llewellyn smell marijuana. Llewellyn did state that just because he did not see marijuana in Defendant's hand or see smoke, that did not mean he did not suspect drugs were present. Llewellyn's suspicions were further raised when Defendant slumped over to the driver's side as he made eye contact with the officer. Defendant's presence in the bar parking lot and evasive maneuver to avoid being seen made Llewellyn suspect that Defendant was either smoking marijuana or drinking liquor illegally. Llewellyn walked back to Defendant's car to see why Defendant was trying to hide from him and to see if he could smell marijuana. When he arrived the window was down and no smell of marijuana was present. Llewellyn did not see anything else that indicated criminal activity, but it did not eliminate Llewellyn's suspicion, as his main intent in approaching the car was to find out why Defendant was hiding from him. After getting Defendant's information and running it through LEADS, Llewellyn learned Defendant was on parole. His training with the Decatur police told him that he had the right to search Defendant and search the area that Defendant is sitting in, as well as his parole address. He learned he had this right through the training sergeant at the station. After learning the policy, Llewellyn searched several other parolees besides Defendant in this manner. He would search them for no other reason than they were on parole. It was his good faith belief at the time that it was his legal right as an officer to search a parolee without more.
After learning Defendant was a parolee with no warrants, Llewellyn still believed there must be a reason he was hiding from him. The fact that Defendant was on parole played a direct role in Llewellyn's continued investigation. Had Defendant not been on parole, and as Llewellyn did not see or smell any marijuana, he would have had no other reason to get Defendant out of the car.
Llewellyn went back to the car because Defendant was on parole and had tried the evasive maneuver and Llewellyn wanted to search him. Both factors were equally important to Llewellyn.
On re-direct, it was established that, even with the evasive behavior, if Defendant was not on parole he would not have been asked to exit the car. Defendant would have been free to go as Llewellyn would have had nothing more to go on.
Following the conclusion of the evidentiary hearing, the court ordered a transcript to be prepared and the parties to submit bench briefs based on the transcript. The transcript (#14) was filed on January 27, 2009, and the Defendant's Brief in Support of Motion to Suppress (#15) was filed ...