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United States of America v. Michael Dorsey

May 5, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MICHAEL DORSEY, DEFENDANT.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Michael Dorsey's ("Dorsey" or "Defendant") Motion to Suppress. For the reasons that follow, the motion is denied.

I. BACKGROUND

Dorsey is charged with unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Dorsey seeks to suppress the weapon, a .25 caliber semiautomatic pistol, arguing that he was unlawfully seized and searched in violation of the Fourth Amendment. Dorsey also moves to suppress any statements he made to police following his detention, arguing that the statements are the fruit of an unlawful search and seizure. Alternatively, Dorsey moves to suppress his statements on the ground that they were the result of a custodial interrogation without the benefit of Miranda warnings.

A. Facts

On December 19, 2009, Chicago's Office of Emergency Management and Communications received a 911 call reporting that a black male security guard in a liquor store was carrying a gun without a permit. The female caller said the security guard was wearing a black uniform with a gun on his waist. A recording of the call no longer exists.

At about 8:30 p.m., a dispatcher gave the following broadcast over the Chicago Police Department radio: "When you get rolling, can you, uh, check the guy who supposedly has a gun, security working at the store, who is not allowed to carry one, 6300 South Western." Chicago Police Officers Dorng and Hasenfang responded to the F&G Liquor and Food Mart, located at 6259 S. Western Ave.

There, according to the arrest report, the officers observed Dorsey, who was wearing a security badge around his neck. They approached Dorsey and asked him for identification and if he was an armed security officer. Dorsey responded that he was unarmed and said his identification was in the back of the store. At that point, according to the report, Dorsey "bladed" his right side away from the officers, which the Court interprets to mean that he turned that side of his body away from them. At the same time, Dorsey made what the arrest report describes as "awkward adjusting movement to the right side of his pants." Hasenfang and Dorng then performed a pat-down search of Dorsey and recovered the handgun in his right rear pants pocket.

Up until this point in the encounter, the parties essentially agree as to the facts of what occurred. However, Dorsey contends there are discrepancies in the police reports as to when Dorsey was read his Miranda warnings that necessitate the suppression of his statements. Dorsey contends that the arrest report "unequivocally states" that Dorsey was advised of his rights at the scene, while the ATF reports state that he was not advised of his rights until after he was taken the police station.

Because of this inconsistency, Dorsey seeks suppression of any statements he made at the scene of the arrest or while enroute to the police station. Further, Dorsey contends that even if he was read his rights at the police station, any statements he made should be suppressed because a Miranda violation cannot be cured by a second round of questioning following Miranda warnings. Dorsey also seeks an evidentiary hearing on the Miranda issue to resolve what he contends is a factual dispute over when and where Dorsey was read his rights. The Government responds that the reports are consistent, and that Dorsey has not raised a factual dispute entitling him to an evidentiary hearing. The Court will save a detailed recitation of the facts underlying that claim for its analysis of that issue.

II. ANALYSIS

"A defendant who seeks to suppress evidence bears the burden of making a prima facie showing of illegality." United States v. Randle, 966 F.2d 1209, 1212 (7th Cir. 1992). "Reliance on vague, conclusory allegations is insufficient." Id. In order to obtain a hearing on the motion, the proponent of a motion to suppress must show "definite, specific, detailed, and nonconjectural facts that justify relief." Id.

A. Search and Seizure of Dorsey

Dorsey's Fourth Amendment suppression argument hinges on his claim that police subjected him to a Terry stop without reasonable suspicion, so all evidence seized as result of the stop must be suppressed. Under Terry v. Ohio, 392 U.S. 1, 24 (1968), an officer may conduct a brief investigatory stop without probable cause provided that the officer has a reasonable suspicion that the individual has or is about to commit a crime. Here, Defendant claims he was subjected to a Terry stop the moment Officers Dorng and Hasenfang approached him in the liquor store. Citing Florida v. J.L., 529 U.S. 266, 270 (2000), Dorsey argues the anonymous tip in this case was not sufficiently detailed to justify a Terry stop. The Government counters that there was no seizure until Defendant "bladed" his body away from the ...


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