The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on defendant Petre D. Washington's motion to suppress evidence obtained pursuant to a stop, search and seizure on October 24, 2010, along with all the fruits of that "poisonous tree" (Doc. 47). The Government has responded to the motion (Doc. 49), and Washington has replied to that response (Doc. 51). The Court held a hearing on the motion on October 4, 2011. Washington called as witnesses in his case Carbondale Police Sergeant Anthony Williams and investigator Gail Jones; the Government called Carbondale Police Detective Adam Boyd.
At about 2 in the morning on October 24, 2010, Williams and Boyd performed a Terry stop and found a loaded firearm on Washington's person. Washington claims they had no reasonable suspicion of criminal activity and that the stop, search and seizure of the gun violated his Fourth Amendment rights. Washington is charged in this case with one count of knowingly possessing a firearm after being convicted of a felony in violation of 18 U.S.C. § 922(g)(1).
The Court found the witnesses to be credible based on their demeanor while testifying, the foundations they had for testifying to certain facts and the consistency of each witness's testimony with other evidence in the case. The evidence in the file and at the hearing established the following facts.
In the early morning hours of October 24, 2010, Williams, who has had special training and experience in street crime, was on foot patrol near the Don Taco restaurant parking lot on Grand Avenue in Carbondale shortly after several neighboring bars had closed for the evening. He believed this area at this time of night was a high crime area. An unidentified man approached him and reported that a very large (but not obese) black male wearing a black jacket with a white tee shirt underneath had retrieved a gun from under the hood of a purple chameleon-colored*fn1 car parked in the parking lot and put the gun in his waistband. The informant walked with Williams to the Don Taco parking lot and pointed out the car, which matched the description he had given earlier. The informant said he did not see the person he had seen retrieve the gun. The informant's behavior led Williams to believe he was not intoxicated and did not want to be observed talking to a law enforcement officer. Williams asked the informant to give his name, but he refused, did not give any further information to identify the suspect, and left the scene.
Williams approached the car and asked the only two people standing near the car -- two black men, one in a black shirt, one in a black jacket and both obese and tall -- if the car was theirs, but they said no. He also asked them if they had any guns, and they said no and consented to a pat-down search. The searches yielded no weapons.
Williams then looked into the car from the outside and thought he saw a black jacket in the car, although it turned out later to be a gray sweatshirt. This led Williams to believe the suspect may have shed his jacket and placed it in the car. He also noticed Washington, a large but not obese black man wearing a white tee shirt but not a black jacket, intently looking at him from the corner of the Don Taco building. After Williams and Washington locked eyes, a Don Taco security guard Matt Stubblefield told Williams that Don Taco patrons had in the past told him and other Don Taco security guards to watch out for Washington.
When Williams began to walk towards Washington, Washington turned to walk behind the corner of the Don Taco building and away from Williams. Williams called for Boyd and other officer to go with him, and as they rounded the corner of Don Taco, Washington quickened his pace and turned around to glance at the officers following him. Williams and Boyd thought Washington was checking to see if they were pursuing him. Washington stopped when Williams asked him to, and Williams asked Washington if the purple car was his and if he had a gun. Washington did not make eye contact with Williams, dropped his eyes to the front left side of his waistband and worked his hands towards his pockets. At that point, Williams decided to conduct a pat-down search. Williams grabbed Washington's hands while Boyd patted down Washington's waistband area and located the gun that is the basis of this prosecution.
The events described above occurred in fairly rapid success and took no more than five minutes in total. No black jacket was ever found on Washington's person, in his car or in the Don Taco parking lot area.
This issue here is whether, considering the totality of the circumstances, Williams had reasonable suspicion of criminal activity to justify his stopping and patting-down Washington for a weapon. The Fourth Amendment to the Constitution provides, in pertinent part, that the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. Where evidence is obtained in violation of this guarantee, the exclusionary rule generally requires the evidence to be suppressed at a criminal trial where the utility of the rule in deterring unconstitutional police behavior outweighs its costs. See Brock v. United States, 573 F.3d 497, 499-500 (7th Cir. 2009).
The Fourth Amendment requires that searches and seizures, even those of a very short duration, be founded on an objective justification. United States v. Mendenhall, 446 U.S. 544, 551 (1980). The seizure in this case was an investigatory stop, also called a Terry stop, named for Terry v. Ohio, 392 U.S. 1 (1968), the seminal Supreme Court case addressing the issue. An investigatory stop is a brief, non-intrusive detention that may include a moderate number of questions to determine identity and whether criminal activity is afoot as well as a pat-down search. Florida v. Royer, 460 U.S. 491, 498-99 (1983); United States v. ...