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United States v. Cross

United States District Court, S.D. Illinois

November 22, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TIMOTHY CROSS, Defendant.

          MEMORANDUM AND ORDER

          Michael J. Reagan United States District Judge.

         A. Introduction

         Indicted 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 setting.

         On 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.

         B. Summary of Key Evidence and Arguments

         Around 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.[1] Three women told Keel (who was inside the store) that there was a fight going on in the store parking lot.[2] 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.

         Both 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.

         Ninety 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.[3] 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.

         Keel, 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.

         East 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, [4] 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. 4).

         During 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.

         Cross 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.

         Cross 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.

         Three 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.

         The 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 evidentiary significance.

         The 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.

         Squarely 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.

         First, 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.

         C. Analysis

         The 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 ...


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