The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
On March 1, 2012, this Court held a hearing on Defendant's Motion to Suppress his arrest, and the heroin and gun recovered in connection with that arrest. For the reasons stated herein, the Motion is GRANTED.
Both the Government and Defendant agree that, on September 18, 2009, Defendant Sundiata Brown ("Brown") was standing on the west side of King Drive, on the sidewalk, at approximately 5840 South King Drive. Brown testified he had parked his black Cadillac behind a Buick owned by a friend, Curtis Nowells ("Nowells"), who was also present. Nowells' friend Terrance Olawumi ("Olawumi"), Nowells' "alley mechanic" (unnamed at the hearing, but identified in a separate affidavit by Nowells as Ralph Clay), and an unnamed a male friend of the alley mechanic were also present. All were on the sidewalk.
Sometime shortly before noon, Chicago police tactical officer David Brown ("Brown") was driving his squad car north on King Drive. He was accompanied in the car by fellow tactical officers Erika Rodriguez ("Rodriguez") and James Franklin ("Franklin"). All were in plain clothes. Officer Brown spotted Defendant's group and pulled his unmarked squad car into the southbound lane of traffic, parking it roughly parallel to Nowells' car. There, the stories diverge, but both agree that shortly thereafter, Defendant Brown was charged with possession of heroin with intent to deliver (21 U.S.C. § 841(a)(1)), possession of a firearm in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)(A)) and possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)).
A. Witness Olawumi's Testimony
Olawumi testified that prior to that day, he had never met Sundiata Brown. When the three tactical officers arrived, an officer whom Olawumi described as a female Hispanic yelled "They're swallowing," apparently believing someone in the group was swallowing contraband to avoid the recovery of evidence.
One male tactical officer grabbed Olawumi and forced him to open his mouth; another male tactical officer grabbed Defendant Brown. Olawumi said he had not swallowed any drugs, he did not see Defendant Brown or anyone else swallow drugs, and he did not see anyone in the group drinking or with a bottle. He did not see Defendant Brown drop anything to the ground. He testified one of the male tactical officers patted Defendant Brown down and yelled to the other officers that Defendant Brown had a gun. Olawumi then saw one of the male officers take the gun off of Defendant Brown.
At the hearing, Olawumi was shown a video exhibit, footage taken by a later-arriving police car. That video shows the filming police car pull up directly behind the tactical officers' unmarked squad car. It shows five men against the driver's side of the unmarked squad car. Olawumi identified the two men toward the rear of the unmarked car (closest to the camera) as the alley mechanic (Clay) and Clay's friend. Next to these two men were Nowells, then Olawumi, and finally Defendant Brown, positioned furthest from the camera.
Olawumi testified the video of the scene begins after the gun had been seized from Defendant Brown. He described the action on the video as follows: a plainclothes, dark-haired female officer that Olawumi identified as Rodriguez begins searching Brown. Olawumi's head is at first pointed toward the camera, but then turns to his left, toward Defendant Brown and Rodriguez, who then pulls something from Defendant Brown's jacket with her left hand and moves it up toward to Defendant Brown's face.
"I seen her pull a plastic bag from inside" his jacket, Olawumi testified, referring to his perception when he was at the scene. Olawumi also testified that, by his in-court perception of the video tape, he heard someone on the audio track of the video say "he's got dope too."
On cross-examination, Olawumi testified that, at the scene, he saw what Rodriguez recovered, and that it was a bag with "little small bags" inside it.
After Rodriguez recovered the bag, Olawumi said he and Nowells were handcuffed and taken to the police station in the same marked police squad car, but were both later released in about an hour without charges.
B. Defendant Brown's Testimony
Defendant Brown testified that when officers arrived, he heard Officer Rodriguez shout "They're swallowing." It was Officer Franklin, not Officer Brown, who first accosted him and found the gun, which Defendant Brown said was hidden in his waistband on the left side, covered by both a sweatshirt and his jacket.
Upon feeling the gun, Officer Franklin pressed him tightly down upon the hood of the car and asked him, "Nigger, you the police?" Officer Franklin retrieved the gun and handed it off to Officer Brown. Then the "transport vehicle" (another squad car) arrived and Officer Rodriguez announced she was going to "run through" the suspects again (search them again). It was at that point that Rodriguez ...