The opinion of the court was delivered by: Reagan, District Judge
Before the Court is an August 2010 suppression motion -- thoroughly briefed and persuasively argued by counsel -- involving the admissibility of a firearm discovered during a vehicle search and a statement made to officers following that discovery. Having conducted a suppression hearing, heard the testimony, and carefully reviewed the evidence, the undersigned Judge finds that an illegal seizure occurred and, although the law enforcement officers were well-intentioned, their conduct was sufficiently deliberate and culpable that suppression is warranted.
B. PROCEDURAL OVERVIEW AND FACTUAL SUMMARY
An April 2010 one-count indictment charges Isaac Windom with being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1). Windom was arraigned before Magistrate Judge Donald Wilkerson and released on bond pending trial, which is set to commence on January 10, 2011.
On August 3, 2010, Windom moved to suppress "all evidence obtained as a result of the illegal seizure on January 4, 2010" (Doc. 19, p. 1). Drawing the facts from the testimony and exhibits introduced at the evidentiary hearing on October 7, 2010, the Court summarizes the events of January 4th.
On that day, Illinois State Police Officer Scott Boothe was working as part of the "WAVE" (Working Against Violent Elements) task force*fn1 patrolling in Washington Park, Illinois. Around 5:15 pm, Boothe was patrolling in the 5600 block of Warren Street. Extensive evidence was submitted to demonstrate, and indeed it is undisputed, that this is an area plagued by crime.
Boothe's police vehicle was a Black Chevy Tahoe, equipped with interior emergency red and blue flashing lights. In Boothe's vehicle that night were four law enforcement officers: (1) Scott Boothe driving the Tahoe; (2) Chris Lutz, a Monroe County, Illinois Sheriff's Deputy assigned to the Metropolitan Enforcement Group of Southern Illinois ("MEGSI"), sitting in the front passenger seat of the Tahoe; and (3) F.B.I. Agent John Kelly and (4) F.B.I. Agent Brian Yingling, both riding in the back seat of the Tahoe. All four officers wore clothing identifying them as police officers, and the Tahoe (though unmarked) was known to local residents as a police vehicle.
When Boothe turned the corner on Warren Street, he saw a white Ford Crown Victoria parked in front of an abandoned house at 5613 Warren. The car had its headlights off, and the engine was idling. The latter fact could be determined because the car exhaust was visible in the chilly evening air. Boothe immediately activated the police lights on his Tahoe, pulled up, and parked at an angle directly in front of Windom's idling Crown Victoria. According to Agent Lutz, Boothe parked the Tahoe (angled toward the curb, facing east) with his front bumper 8 to 10 feet from the front bumper of Windom's car (which was facing west), positioning the Tahoe so that Windom could not pull straight away (i.e., the Tahoe at least partially blocked Windom's path).
Several significant details merit mention here. Prior to activating the emergency lights and pulling in front of Windom's car that night, the officers: (a) had no reports or complaints regarding suspicious persons or activity in the area; (b) had no information that a white Crown Victoria was involved in any criminal activity; (c) had no reports or anonymous calls regarding a crime at 5613 Warren; (d) had no idea who the driver of the Crown Vic was; and (e) had no idea how long he had been parked in that spot. No traffic offense was being committed, and sitting in a running car parked by the side of the road is not illegal. All Officer Boothe knew at this point was that an African-American male was sitting in an idling car with his headlights off in front of an abandoned house in a high-crime area of Washington Park, Illinois.
After the lights were activated and after the Tahoe was parked, as two of the officers made their way to the idling Crown Victoria, Officer Boothe saw the driver (later identified as Windom) "moving around in the front seat" seemingly "determined to put something down." Boothe's impression was that the driver probably had a "bag of weed" he was trying to hide.
Boothe and Lutz exited the Tahoe and approached Windom's vehicle; the FBI agents remained in the Tahoe at this time. Boothe walked up to the driver's side of Windom's car while Lutz walked around to the passenger side of Windom's vehicle.
Boothe asked Windom for his driver's license, and Windom politely complied, producing identification. At this point, Agent Lutz (who, from his position, had a view of the Crown Victoria's ignition) indicated to Officer Boothe that the ignition had been popped or "punched," and a screwdriver was lying on the front seat.
Boothe directed Lutz to step out of the vehicle,*fn2 based on a concern that the car was stolen (due to the condition of the steering column/ignition). Windom did so, remaining cordial and compliant. Once he was out of the vehicle and asked about the ignition, Windom explained that he purchased the car in that condition and used the screwdriver to start the car.*fn3 Windom was respectful and responsive throughout the exchange with officers.
After querying Windom regarding the ignition, Officer Boothe asked Windom if he had any drugs or guns on his person or in his vehicle. Windom said no. Officer Boothe asked if Windom would mind consenting to a search of his vehicle. Windom agreed to the search.
After Windom consented to the search, Boothe "felt very at ease with Mr. Windom," who was polite, maintained good eye contact, and gave no indication he "was thinking about running." In fact, Boothe felt so comfortable that he turned and walked to his vehicle while Agent Lutz searched the Crown Vic.
As he sat in his patrol vehicle running the license and registration check, Boothe looked up and saw Agent Lutz placing Windom in handcuffs. Lutz walked over to the Tahoe and advised Boothe that Lutz had found a .25-caliber Beretta in the passenger compartment of Windom's car. Boothe obtained a box from his Tahoe in which to secure the firearm. The agents finished searching the Crown Victoria, read Windom his Miranda rights, and then conducted an on-scene interview of Windom in their vehicle. Boothe's impression from the interview was that Windom had forgotten the firearm was in the vehicle.
During this questioning, Windom told the officers that he bought the gun from a "crackhead on the street" for $30 and that although the seller had test-fired it to prove that the gun worked, Windom himself had never fired it or cleaned it. Windom told the officers he did not remember leaving it in the car, but he worked a 24-hour "on call" job and was quite tired. He also referenced the fact he would rather be caught with the gun than without it.
When asked why he was parked on Warren with his engine running and lights off, Windom said he was using his cell phone to make a call. He offered that he used to live nearby (just down the street), and he sometimes parks on Warren, drinks beer, and talks to his girlfriend on the phone.*fn4
In moving to suppress, Windom claims that his initial detention was illegal, thus his consent to search the vehicle was tainted, and the evidence discovered both during the search (the Beretta) and after the search (the "confession") must be excluded. The Government counters that no Fourth Amendment violation occurred, because the officers lawfully approached Boothe's vehicle, Boothe consented to the car search, ...