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United States v. Colbert

United States District Court, Seventh Circuit

June 10, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
LAMONT COLBERT Defendant.

MEMORANDUM OPINION AND ORDER

JOHN Z. LEE, District Judge.

On March 7, 2012, Defendant Lamont Colbert, a convicted felon, was arrested for possessing a firearm in violation of 18 U.S.C. ยง 922(g). He moved to quash the arrest and to suppress the gun and a statement he made to police, arguing that the police lacked reasonable suspicion to stop and detain him and, consequently, the gun that he threw onto the sidewalk while he was being detained and that formed the basis of his arrest was the product of an unlawful seizure and his statement was derivative of an illegality. The Court denied his motion, finding that the police had reasonable suspicion. Now, Colbert has filed a second motion seeking the same relief.

In his second motion, Colbert argues that, in an interview that took place after the Court had ruled on the first motion, one of the two arresting officers stated that he grabbed Colbert before Colbert threw the gun onto the sidewalk. According to Colbert, this differed from the officer's initial account of the incident in which the officer had not mentioned this physical contact with Colbert. The Court conducted an evidentiary hearing at which both arresting officers testified. For the reasons stated herein, Defendant's second motion to quash arrest and suppress evidence is denied.

Facts

On March 7, 2012, at approximately 10:45 p.m., Chicago Police Department Officers Ludwig and Gentile were on patrol near the intersection of East Marquette Road ("E. Marquette") and South Maryland Avenue ("S. Maryland") in Chicago, Illinois. (4/9/13 Evidentiary Hr'g Tr. ("Tr.") 6-7.) The officers knew that a homicide had taken place approximately one block away the day before. ( Id. 41.)

As the officers were driving in their patrol car westbound on E. Marquette Road, they saw a man near the corner on S. Maryland Avenue. ( Id. 8-9.) The man was initially looking west, then, as the officers approached, he looked east towards the officers. ( Id. 50.) The man then turned south and yelled and made motions to an individual (later identified as Defendant) on the other end of the block. ( Id. 50, 53) The officers believed the man was serving as a lookout. ( Id. )

The officers then observed Defendant running onto the porch of a residence at 6604 S. Maryland Avenue. ( Id. 9, 12, 53.) Detective Ludwig, who was driving the patrol car, turned the car southbound on Maryland Avenue and observed Defendant run approximately seven to nine feet to the porch. ( Id. 9, 22) Ludwig then pulled the car up in front of the residence. ( Id. 12.) Officer Gentile, the passenger in the patrol car, watched Defendant run from the street curb, over some grass, onto the porch. ( Id. 53.) Gentile estimated that Defendant ran "10, 15 feet, " at a "fast" pace. ( Id. 54-55, 75.) Although other people were in the area, Gentile observed only Defendant running. ( Id. 75.)

Gentile exited the vehicle first and approached the porch to speak with Defendant about the homicide that had occurred the day before and to investigate whether Defendant had a weapon or contraband. ( Id. 12-13, 40-41, 56, 74.) Ludwig put the car in park, waited to see if Defendant was going to flee from the porch, and then, upon determining that Defendant was going to remain on the porch, exited the car and approached the porch. ( Id. 13.)

As Gentile approached, Defendant was sitting on the porch with his hands hidden; his left hand was in his pocket and his right hand was not visible. ( Id. 56-57.) Initially, Gentile held his firearm in the ready position, pointed downwards, but when he noticed that Ludwig had exited the car and was near him, Gentile re-holstered his weapon. ( Id. 61-64.) As the officers approached, they asked Defendant three to four times to show them his hands, but he refused. ( Id. 13-15, 56-57.) The officers wanted to see his hands because they were concerned for their own safety and thought he might have had a weapon. ( Id. 40, 56, 74.)

When Gentile reached the porch, he approached Defendant's left side and tried to feel the outer garment area where Defendant had his left hand, but Defendant "tensed up" and would not give Gentile his left hand. ( Id. 63-64.) Gentile tried to search Defendant's right side from behind, but Defendant moved back and forth, and moved his body down, preventing Gentile from feeling Defendant's right side. ( Id. 64.) Gentile also tried to restrain Defendant's left hand behind his back. ( Id. ) As Gentile was trying to get Defendant's left hand out of his pocket, Defendant reached and grabbed a railing with his right hand. ( Id. 14-15.)

Because Defendant was not complying with the officers' commands, Ludwig grabbed Defendant's right arm, but Defendant pulled his arm back, causing Ludwig to fall forward a step or two. ( Id. ) After Ludwig fell, he saw something go over his head. ( Id. 15.) He looked behind him and saw a gun land on the sidewalk. ( Id. 15-16) He could hear it land, and he immediately went down to the sidewalk and recovered it. ( Id. 16.)

From his angle, Gentile could see Defendant with the gun in his right hand as he was throwing it forward. ( Id. 66.) Gentile did not see where it landed, but he heard it hit the ground. ( Id. ) When the gun hit the ground, Gentile heard other people in the area, who had gathered on the sidewalk in front of the porch, say "oh, wow" and back away from the gun. ( Id. 16, 66-67.)

Defendant was placed into custody and taken for processing. (Chicago Police Department Original Case Incident Report.) After he was advised of his Miranda rights, Defendant told police, "I have the gun because my little brother got killed yesterday." ( Id. ) Defendant now moves, for the second time, to quash his arrest and suppress the gun and his statement, arguing that Officers Ludwig and Gentile lacked reasonable ...


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