The opinion of the court was delivered by: Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
DeMarko Smith*fn1 has been charged with one count of knowingly possessing a firearm in violation of 18 U.S.C. 922(g)(1) and one count of knowingly and intentionally possessing a controlled substance with the intent to distribute in violation of 18 U.S.C. 841(a)(1). Chicago Police Officers Skarupinski and Officer Byrne seized a Smith & Wesson .380 semi-automatic pistol and six individually wrapped baggies containing crack cocaine during their sidewalk encounter with and stop of Smith. Smith moves to suppress all evidence obtained and statements made as a result of the stop and subsequent arrest as the fruit of an illegal search. For the following reasons, the court finds that the officers' account of the Terry stop at the suppression hearing was not credible and that the officers' did not demonstrate that they possessed sufficient reasonable suspicion to subject Smith to a Terry stop. Defendant's motion to suppress is granted.
Officers Byrne and Skarupinski were patrolling in the 5th police district, specifically in the residential neighborhood of 113th Place and Perry Street on April 17, 2011 at approximately 8:20 PM. Officer Byrne is a tactical Chicago police officer assigned to the Fifth District and has been with the Chicago Police Department for over four years. Officer Skarupinski also testified that he had been a Chicago police officer for over four years and is a tactical officer assigned to the Fifth District. On April 17th
Skarupinski was driving an unmarked squad car and Byrne was seated in the passenger seat. Byrne testified that the officers were on an "arms mission" to prevent firearms-related violence in the area. Smith, a tall, heavy black man dressed in dark pants and a long-sleeved dark top, walked alone on the sidewalk south on Perry and then westbound on the one way eastbound street of 113th Place.
After observing Smith walking alone, the officers decided to follow him down the one-way street, driving in the wrong direction and at a slow-idle speed. When the unmarked squad car pulled abreast of Smith, Officer Byrne focused on Smith's waistband area because "that is a very common area where people are known to carry firearms." While focusing on Smith's waist, from inside the police car approximately 25 feet away from the sidewalk, Officer Byrne saw the butt of a handgun at Smith's waistband. Officer Byrne testified that he stated "gun" and Skarupinski stopped the slow-moving car. Once the car had been stopped, Officer Byrne exited the vehicle without drawing his weapon and ordered Smith to show his hands. According to the officer's testimony, Smith complied with that request but was non-compliant with Byrne's attempts to handcuff him. Upon stopping the car, Officer Skarupinski left the car with his gun drawn in the "low-ready" position, but holstered it when he saw his partner struggling to handcuff Smith and began to assist with Smith's arrest. Both officers testified that a gun was visible in Smith's waistband throughout the struggle which continued into the street in front of the squad car. During the struggle both officers' testified that Smith kept one fist clenched until reaching the squad where he took threw small baggies of suspect drugs on the hood of the car. Then Smith, according to the officers, pulled a gun out of his waistband, which Skarupinski knocked out of his hand and onto the ground.
Early on in the incident, Skarupinski requested assisting units to help with Smith's arrest although no reference to an armed suspect was conveyed during the request. One of the assisting officers, Officer Stacker, a 15 year veteran, testified that once at the scene of the stop, he saw the arresting officers' attempts to handcuff Smith in front of the squad, Smith subdued on the ground then handcuffed and a gun being recovered from under the squad car by Skarupinski. Once handcuffed, Smith was arrested and charged with possessing a semi-automatic and six individually wrapped baggies of suspect crack cocaine.
Smith now brings forth this motion to suppress arguing that he was confronted and detained by Chicago police officers for no reason or at most based on a suspicion or hunch, then eventually, handcuffed and arrested because he would not get off the phone or on the ground as ordered by the arresting officers. Smith contends that this was an unreasonable detention and unlawful arrest which requires the suppression of all evidence seized and all statements made as a result of the arrest.
In Terry v. Ohio, the Supreme Court noted that not all personal interaction between policemen and citizens is impermissible, but instead police officers can stop and detain a person for certain investigative purposes. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Terry stops are permissible when a police officer has a reasonable suspicion supported by articulable facts that criminal activity has or is likely to occur. Id. at 21-22. While reasonable suspicion requires less than probable cause, it requires more than a mere "hunch." United States v. Bullock, 632 F.3d 1004, 1012 (7th Cir. 2011). Further, the Seventh Circuit has held that whether an officer had a reasonable suspicion is based upon "the totality of the circumstances" and "'common-sensical judgments and inferences about human behavior.'" Jewett v. Anders, 521 F.3d 818, 823-25 (7th Cir. 2008) (quoting United States v. Baskin, 401 F.3d 788, 791 (7th Cir. 2005)); United States v. Ienco, 182 F.3d 517, 523 (7th Cir. 1999) (citing United States v. Quinn, 83 F.3d 917, 921 (7th Cir. 1996)).
Here, the Court applies the foregoing legal standards to one question: whether the officers had a reasonable suspicion to stop Smith as he was walking near the intersection of Perry Street and 113th Place. The government argues that the police officers had reasonable suspicion based on the fact that (1) Officer Byrne testified that he observed the butt of a handgun exposed in Smith's waistband; (2) Byrne's testimony was corroborated by Skarupinski who also saw the butt of a handgun once he exited his squad car; (3) Skarupinski eventually struck a handgun out of Smith's hand and (4) Officer Stacker saw Skarupinski retrieve a handgun from underneath Skarupinski's squad car.
According to the government, this combination of circumstances was enough to demonstrate that the initial stop of Smith was constitutionally justified. The court's review of the testimony finds the government's arguments unpersuasive.
First, Byrne alleges to have seen the three (3) inch handle of a dark handgun against Smith's dark shirt from a distance of 25 feet, in a moving car, at night. Not only does the court find it implausible that Byrne was able to see the handgun under these circumstances, Byrne's subsequent actions shed further doubt on his testimony. Upon seeing the gun, Byrne testified that he did not attempt to disarm Smith, but instead engaged in a physical struggle with Smith to place him under arrest. The court finds it highly unlikely that a trained police officer would engage in physical wrangling with an armed defendant instead of first disarming the defendant, especially when the police officer knows the exact location of the weapon. United States v. Price, 328 F.3d 958, 960 (7th Cir. 2003) ...