The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
E-FILED 3:11-cr-30068-SEM-BGC # 21 Page 1 of 32
Tuesday, 28 February, 2012 03:33:46 PM
Clerk, U.S. District Court, ILCD
This matter is before the Court on the Report and Recommendation (d/e 15) entered by United States Magistrate Judge Byron G. Cudmore on January 6, 2012. Defendant Anthony M. Lyons filed an Objection to the Report and Recommendation (d/e 16) ("Objections") on January 20, 2012. See 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b). The Government filed a Response to Defendant's Objections (d/e 19) on February 15, 2012.
In the Report and Recommendation, the Magistrate Judge recommends that this Court deny Defendant's Motion to Suppress Evidence Obtained During a Warrantless Search and Quash the Arrest That Followed (d/e 11) ("Motion"). This Court reviews de novo any part of the Report and Recommendation to which there has been a proper objection. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(3). For the reasons set forth below, the Court overrules Defendant's Objections and adopts the Magistrate Judge's Report and Recommendation.
While this Court adopts the Magistrate Judge's conclusion that officers lawfully seized the evidence from Defendant, this Court respectfully declines to adopt a portion of the underlying analysis in the Report and Recommendation. Specifically, this Court declines to adopt the Magistrate Judge's conclusion that the officers never commenced a pat-down search of Defendant. See R&R at 6. However, this Court adopts the Magistrate Judge's conclusion that Defendant's Motion to Suppress must be denied because this Court finds that whether the officers obtained the gun as a result of a Terry pat-down search of Defendant or as a result of a search incident to Defendant's arrest, the officers' search of Defendant and seizure of the gun was lawful.
This Court has independently reviewed the facts as set out in the Indictment (d/e 2), the pleadings, and the official transcript of the January 4, 2012 evidentiary hearing on Defendant's Motion held before the Magistrate Judge. The relevant facts are as follows.
On the night of September 14, 2011, Officers Dodd, Leech, Burns, and Redpath of the Springfield Police Department (SPD) Street Crimes Unit were patrolling near the corner of Second and Edwards Streets in Springfield, Illinois. Officer Dodd testified that the officers' vehicle was an "inconspicuously marked" vehicle that was not marked as a squad car but could be identified as a law enforcement vehicle.
At 9:01 p.m., the officers saw a blue Cadillac automobile ("Cadillac") driving east on Edwards.*fn1 Officer Leech, who was driving, viewed the driver of the Cadillac and reported to the other officers that he recognized the driver to be James White ("White"). Defendant was seated in the passenger seat of the Cadillac.
The officers knew White from prior encounters. In February 2011, White fled from Officer Dodd and another officer after they had attempted to initiate a traffic stop of White's vehicle. White proceeded to crash his vehicle at the corner of Ninth and Edwards Streets, and officers found a gun inside the vehicle. Officer Burns testified that although he was not involved in the February 2011 chase, he was aware of it. The officers were also familiar with White because, in May 2011, Officer Dodd and a sergeant of the SPD Street Crimes Unit obtained and executed a search warrant for White's residence and found two guns and approximately one ounce of crack cocaine in the residence. Officer Dodd testified that when he and the sergeant had attempted to execute the search warrant on White's residence, White had initially barricaded the front door of the residence with his body. Officer Dodd and the sergeant eventually forced the door open. Officer Burns testified that he did not participate in executing the May 2011 search warrant but was aware of the May 2011 search and was aware that officers had found guns and crack cocaine in White's residence on that occasion. Officer Dodd further testified that he and other officers had seen White "numerous times" in the past due to traffic stops on White's vehicle, including traffic stops on White's blue Cadillac.
Officer Burns testified that he did not know Defendant prior to the September 14, 2011 incident. However, Officer Dodd testified that he knew Defendant before that night because he had seen Defendant with White "on numerous occasions in different areas," including in front of White's residence.
When the officers saw White driving the Cadillac on the night of September 14, 2011, the officers knew that White's driving license was suspended. The officers followed the Cadillac as it turned left from Edwards Street onto Second Street and drove north two blocks. At the corner of Second and Capitol, Officer Leech activated the emergency lights on the officers' vehicle to conduct a traffic stop for White's driving with a suspended license. White did not initially stop. White continued to drive his vehicle east on Capitol Street and drove through a "solid red light" at Fourth and Capitol. White then pulled over on Capitol about halfway between Fourth and Fifth Streets.
When the Cadillac came to a stop, Officers Dodd and Redpath walked to the driver's side of the Cadillac, Officer Burns walked to the passenger's side, and Officer Leech stayed in the patrol vehicle. Officers Dodd and Redpath spoke with White and asked White to step out of the vehicle. Officer Redpath then searched White.
When Officer Burns reached the passenger side of the vehicle, he noticed that Defendant's hands were shaking. Officer Burns testified that while he was speaking to Defendant, Defendant was "kind of glancing at me, not looking directly at me while speaking to me." This behavior indicated to Officer Burns that Defendant was nervous. Officer Burns then asked Defendant to step out of the vehicle. When Defendant exited the vehicle, Officer Burns noticed that Defendant still appeared nervous and his hands were still shaking. Officer Burns asked Defendant if he had any weapons on him, and Defendant answered no. At that time, Officer Burns informed Defendant that he was going to "pat him down for weapons." Officer Burns testified that after he told Defendant he was going to pat him down, Defendant "kind of put his head down and said, I have a gun on me." At that point, Officer Burns had not yet placed his hands on Defendant.
Officer Burns knew that carrying a concealed weapon in a vehicle was a crime. After Defendant said he had a gun, Officer Burns took out his handcuffs and put Defendant's hands behind his back. Officer Dodd made eye contact with Officer Burns and saw that Officer Burns had reached for his handcuffs. Recognizing that Officer Burns likely needed assistance, Officer Dodd walked over to Officer Burns. When Officer Dodd reached Officer Burns, Officer Burns communicated to Officer Dodd that Defendant had a weapon on his person. Officer Dodd then lifted up Defendant's shirt and removed a loaded firearm from Defendant's waistband. Officer Dodd took the firearm back to the patrol car, and Officer Burns secured Defendant. White was given a citation for driving while his license was suspended, but he was not arrested. White was not given a citation for driving through a red light.
At the evidentiary hearing, defense counsel asked Officer Burns to estimate the time that had elapsed during the entire stop. Officer Burns estimated that five to ten minutes had elapsed from 9:01 p.m., the time when the officers first saw White's Cadillac, until the time that Officer Dodd removed the weapon from Defendant's person. Officer Burns testified that he did not know how much time had elapsed from the moment he began speaking with Defendant to the moment Officer Dodd removed the gun from Defendant's person. The Parties stipulated ...