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United States of America, Plaintiff v. Anthony D. Bady

February 29, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ANTHONY D. BADY, DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge:

MEMORANDUM and ORDER

I. Introduction and Background

Pending before the Court is Bady's motion to suppress (Doc. 21). The government opposes the motion (Doc. 24). On February 23, 2012, the Court conducted a suppression hearing, heard testimony and took the matter under advisement. Based on the following, the Court denies the motion to suppress.

On October 19. 2011, the grand jury charged Anthony D. Bady with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)(Doc. 1). On December 12, 2012, Bady was arraigned before Magistrate Judge Stephen Williams and remanded to the custody of the U.S. Marshal pending trial.

On December 30, 2011, Bady moved to suppress all evidence obtained as a result of an illegal search and seizure on May 7, 2011 (Doc. 21). Drawing the facts from the testimony and exhibits introduced at the suppression hearing, the Court summarizes the events of May 7, 2011.

On that day, Illinois State Police trooper Larry Lohman was working as part of the "WAVE" (Working Against Violent Elements) task force and patrolling with "MEGSI" (Metropolitan Enforcement Group of Southwestern Illinois) agent Joshua Hubbard, a city of Fairview Heights, Illinois police officer, in East St. Louis, Illinois.*fn1

Around 2:45 a.m., the officers were patrolling a high crime area in East St. Louis in and around Martin Luther King Drive and Collinsville Avenue.*fn2 The officers were riding in an unmarked Dodge pick-up truck. Hubbard was driving. Both officers wore clothes that identified themselves as police officers and both officers had badges.

While patrolling that area, the officers observed a red Alero parked behind a parked tan car on the north east side of the street and observed the passenger of the Alero get out and walk to the passenger side of the tan car. The tan car did not appear to be occupied. The officers were interested in what the passenger was doing and they were concerned that he might have been breaking into the car. Hubbard passed the Alero, made a u-turn, activated the emergency lights and pulled his vehicle at an angle directly in front of the Alero with his vehicle six to ten feet from the front of the Alero. As Hubbard was making the u-turn, the officers saw Bady quickly return to the Alero.

After the lights were activated and after the officers' vehicle was parked, the Alero backed up and it appeared to the officers that the Alero was trying to leave. The officers got out of the car and ordered the driver to stop, which he did. Lohman walked to the passenger's side of the Alero and Hubbard walked to the driver's side of the red Alero. As Lohman was approaching Bady, Bady got out of the Alero and "quickly" walked towards Lohman. Lohman directed Bady back inside the car and Bady complied. Lohman asked Bady for identification and Bady gave it to him. Lohman then asked Bady what he was doing and Bady did not respond. Lohman also asked Bady if he had anything that he should not have and Bady did not respond.

Lohman directed Bady to step out of the vehicle and asked him if he had any weapons which, again, resulted in no response. Thereafter, Lohman conducted a pat-down search of Bady and found a small cellophane bag that contained marijuana in Bady's front pant pocket. Bady admitted to Lohman that it was marijuana. After finding the marijuana, Lohman asked Bady to move and Lohman leaned in the passenger seat with one knee and saw the end of the Glock model gun in between the console and the seat.

Lohman testified that he was in the car about ten seconds before he saw the gun and that it was in plain view. Lohman also stated that the total encounter with Bady lasted between three and five minutes. Lohman did not give Bady his Miranda rights before he patted him down or searched the car.

While Lohman was with Bady, Hubbard spoke to the driver of the Alero, A. Collier. The driver told Hubbard that the car belonged to his girlfriend. The driver made no incriminating statements. While Hubbard was talking to the driver, Lohman told Hubbard that he found a gun.

Thereafter, FBI agent Daniel Cook arrived on the scene at 2:54 a.m. Cook read Bady his Miranda rights, Bady waived those rights, and gave Cook a statement at 3:18 a.m. Bady indicated that he was with a friend from St. Louis and that they were going to a strip club in Brooklyn, Illinois called "Bottoms Up." He also stated that when he saw law enforcement he got out of the car and was told to get back in the car. He indicated that he got out of the car because he had a gun and he did not want the gun to be found. He also stated that he knew the gun was loaded but that he did not load the gun. He further stated that the car was not his.

In moving to suppress, Bady claims that his initial detention was illegal, thus all the evidence seized is ...


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