United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Michael J. Reagan United States District Judge.
on a charge of felon in possession of a firearm, Timothy
Cross is set for trial on December 11, 2017. Specifically,
the indictment alleges that on or about June 17, 2016, in St.
Clair County, Illinois, Timothy Cross knowingly possessed, in
or affecting commerce, a Smith & Wesson .357 caliber
revolver, in violation of 18 U.S.C. 922(g)(1). Cross
initially appeared before Magistrate Judge Wilkerson, entered
a not-guilty plea, was found financially unable to retain
counsel, had the Federal Public Defender's Office
appointed to represent him, and was given a trial date. Cross
successfully moved to continue the trial several times and,
more than six months after the February 2, 2017 motion
deadline elapsed, sought leave to file a belated suppression
motion. Finding good cause, the undersigned allowed the late
suppression motion and continued trial to the current
November 15, 2017, the Court held an evidentiary hearing,
received evidence, heard witness testimony, and took the
motion under submission. For the reasons stated below, the
Court denies the suppression motion.
Summary of Key Evidence and Arguments
10:25 p.m. on June 16, 2016, an off-duty part-time Washington
Park Illinois police officer, Lawrence Keel, was working as a
private security guard at the Crown Food Mart at 8301 State
Street in East St. Louis, Illinois. Three women told Keel (who
was inside the store) that there was a fight going on in the
store parking lot. Keel exited the store and saw two men
shoving or pushing each other. One of the men was Timothy
Cross. Keel recognized Cross, as the two had attended
elementary school together. Keel had also seen Cross, over
the recent few years, frequenting the Crown Food Mart. Keel
separated the two men and ordered them to leave the property.
men went to vehicles. Cross did not immediately leave. He
yelled several times to the other man, who had gotten into
his own vehicle. Cross got into his car (in which a lady was
seated), drove to a gas pump, got out of the car,
and continued yelling at the other man. Keel approached Cross
and again ordered him to leave. Keel suggested that the lady
in the car get in the driver's seat and “get him
away from up here.” Cross got into the passenger side
of the car and, as they pulled from the lot, Cross shouted
out the passenger window: “When I see you, it's
like that.” Keel heard and interpreted this as a threat
of harm by Cross - either directed at Officer Keel or, more
likely he thought, aimed at the man with whom Cross was
involved in the fight.
minutes later, just after midnight on June 17, 2016, Keel was
inside the Crown Food Mart still working his security shift,
when a black male (unknown to Keel) came in the store and
reported that a guy was in the parking lot with a gun. At
this time, Keel was standing near or slightly beyond the cash
register area of the store, which was approximately 15 to 20
feet from the glass double doors at the front of the
store. Keel walked to the doorway and testified
that from in (or just outside) the doorway he saw Cross in
the lot with a silver firearm in his hand, which Cross
quickly tucked into his trousers. Specifically, Keel
testified that when Cross made eye contact with Keel, Cross
tucked the gun inside the right waistband of his pants.
who testified that he (a) knew Cross was a convicted felon
and (b) perceived potential for injury to himself or the
public, briefly surveyed the situation from the doorway,
noticing other persons in the lot. Keel then moved from the
store to the parking lot. As he was walking toward Cross,
Keel told Cross to show his hands. Cross quickly complied but
kept walking away from Keel and went around the back
of a white Lincoln or Grand Marquis. Keel drew his weapon,
followed Cross around the car, ordered Cross to the ground,
closed the distance between himself and the then-prone Cross,
and handcuffed him. Keel immediately reached into the
right-side waistband of Cross' pants and removed a chrome
Smith and Wesson .357 caliber revolver (which, according the
Government, Doc. 44, p. 3) contained six live bullets. Cross
was taken inside the store, and Keel contacted the East St.
Louis Police. Officer Andre Henson of the East St. Louis
Police arrived and took custody of Cross, who was arrested
for unlawful use of weapon. See Defendant's
Exhibit (“Def Exh.”) A.
St. Louis Detective Sergeant Jerry Simon, who was part of the
U.S. Marshals Fugitive Task Force but also assisted East St.
Louis police detectives in interviewing suspects,
interviewed Cross at 9:30 a.m. that morning (June 17, 2016).
At the time of the interview, Simon had not spoken to Keel,
had not reviewed Keel's report, and had not seen any
video footage from the incident. Simon fully Mirandized
Cross. The Miranda form was admitted in evidence
(Government's Exh. 3). The entirety of the interview was
videotaped, and the tape was admitted (Government's Exh.
the interview, Cross repeatedly and freely stated that he had
a gun on the date in question. He also noted that he was
“drunk, ” “intoxicated, ” and
“mad.” Cross explained that earlier in the day
(June 16, 2016), he had been in his car with a guy named
Jeremy, that subsequently Cross' girlfriend, Stephanie
Taylor, got in Cross' car and discovered a gun-a gun
belonging to Jeremy that Jeremy had left in Cross' car,
unbeknownst to Cross. According to Cross, the 10:30 p.m.
tussle at the Crown Food Mart lot was an argument about the
gun, which Jeremy accused Cross of stealing.
told Detective Simon that, during this 10:30 p.m. encounter,
Jeremy retrieved a weapon from his trunk, pushed Cross, and
struck Cross in the neck. Cross offered to show Detective
Simon a bruise he felt developing where he was hit by Jeremy.
Cross said the security guard (Lawrence Keel, whom Cross
refers to as “Officer Lawrence”) came out of the
Food Mart and told Cross to leave the property. This upset
Cross, because (by his account) Jeremy had pulled a gun on
him, struck him, shoved him, and was allowed to leave, and
Keel - who should be protecting Cross - did nothing to Jeremy
while harshly hustling Cross off the premises.
admitted that he returned to the store ninety minutes later,
with the gun in his car. Reluctant to confront the irate
Jeremy but not wanting to take the gun to his own home in
Belleville, Cross was going to take the gun to his
mother's house, just two blocks from the Food Mart. Then
Cross happened to see Jeremy's uncle in a car at or near
the Food Mart, and he decided to return Jeremy's gun to
the uncle. So Cross flagged down the uncle for this purpose.
Cross freely acknowledged that he parked his car at the Food
Mart, grabbed the revolver from “out of the back seat,
” stepped out of the car holding the gun, and as he
walked away from his car toward the front of the store,
tucked the gun into his right waistband. A man walked up to
Cross, but Cross did not want to take time to talk to him.
Cross repeated that at this point he was mad because Keel had
let a Jeremy pull a gun on him, that this was all surely
captured “on camera, ” and that Jeremy faced no
consequences from this attack. Crown insisted that if
Detective Simon would review the videotapes, they would back
up his account of the initial altercation he had with Jeremy
in the Food Mart parking lot.
days later, on June 20, 2017, Detective Simon went to the
Crown Food Mart and requested any video surveillance from
June 16-17, 2017. He was told by the store manager that he
could view the video, but (due to the system being replaced
and the fact they were “waiting on IT” to install
a new system) they were unable to make copies of the footage
or transfer it to a thumb drive. Detective Simon and the
manager viewed the video on the store's monitor. Simon
searched for the date and times in question. Using his cell
phone camera pointed at the monitor, Simon recorded two
excerpts he thought were relevant. See East St.
Louis Police Department Report by Jerry C. Simon, Doc. 36-2,
p. 1. Via this method, Detective Simon preserved two portions
of the video surveillance footage -- Exhibits B & C to
Doc. 36, admitted at the hearing as Government's Exhibits
1 and 2.
first clip is ten seconds long, running from 00:16:27 a.m. to
00:16:37 a.m. The second clip, shot from a different camera,
runs from 00:17:49 a.m. to 00:18:39 a.m. No video was
presented of the one-minute-and-twelve-second gap between
these two videos. Simon testified that he viewed the video of
the one-minute-twelve-second period, and it depicted Cross
walking casually toward a car in the parking lot and talking
to a couple of people on the lot. He did not deem it of
first video plainly shows Timothy Cross walking away from his
vehicle, one of three cars parked at the front of the Crown
Food Mart, near the store entrance. As he walks from his car,
Cross is approached by an individual who talks to Cross
momentarily, and Cross can be seen tucking an object of some
kind (it is not clear that it is a gun) into the waistband of
his pants on the front right side. The second video shows
Keel striding across the parking lot toward Cross. Cross does
not stop while being advanced on by Keel. He continues to
walk away from Keel, raising his arms and circling around the
back of a white vehicle (which appears to be the Lincoln or
Grand Marquis previously parked by the store entrance). Keel
can be seen, as he comes around the Lincoln pursuing Cross,
to raise his weapon - after which Cross lies down on the
ground, on his stomach. Testimony established that Keel
ordered Cross to get on the ground, and Cross complied
without resistance. After cuffing Cross, Keel reached
directly for Cross' front right waistband and retrieved a
silver revolver. This, Keel maintains, is the weapon he saw
Cross holding and tucking into his pants, after a customer
reported a man in the lot with a gun.
challenging Keel's account that Keel saw Cross with a gun
in his hands, Defendant argues that there was no warrant to
arrest Cross and no probable cause to arrest Cross, so all
evidence acquired from the arrest and subsequent search (both
the .357 and the testimonial evidence) is “fruit of the
poisonous tree” which must be suppressed. In its
written submission, the United States (“the
Government”) responded on three fronts.
the Government asserted that Lawrence Keel was not acting as
a police officer. He was acting as a private individual,
whose conduct the Fourth Amendment does not govern. Second,
the Government asserted that if Keel was functioning as an
instrument of the government, he had probable cause to arrest
Cross, and the lawful arrest supports a warrantless search
incident to arrest. Third, the Government asserted that if
Keel was an agent of the government and lacked probable cause
to arrest Cross, Keel's conduct was a permissible
Terry stop and protective frisk.
Fourth Amendment to the United States Constitution protects
the right of the people to be secure in their persons against
unreasonable searches and seizures. Ziglar v.
Abbasi, ___ U.S. ___, 137 S.Ct. 1843, 1866 (2017);
Manuel v. City of Joliet, Ill., ___U.S. ___, 137
S.Ct. 911, 917 (2017). But the prohibition against
unreasonable searches and seizures does not apply ...