United States District Court, S.D. Indiana, Indianapolis Division
JANE MAGNUS-STINSON, District Judge.
Presently pending before the Court is Defendant Berton Mays' Motion to Suppress. [Filing No. 40.] Mr. Mays has been indicted with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). [Filing No. 5.] He seeks to suppress evidence recovered after what he contends was an illegal seizure in violation of his Fourth Amendment rights, as well as evidence of an inculpatory statement he later made to federal agents that he contends was taken in violation of his Fourth and Sixth Amendment rights. While various aspects of this case bring to mind images of a spider and a fly,  Mr. Mays' motion must be denied because he has not identified any constitutional violations. [Filing No. 40.]
FINDINGS OF FACT
On April 10, 2015, the Court held an evidentiary hearing on Mr. Mays' Motion to Suppress. [Filing No. 40.] The following are the Court's factual findings from the evidence presented at that hearing and submitted with the parties' briefs. In making the findings that follow, the Court has considered the testimony and the demeanor of the witnesses who testified at the evidentiary hearing: Indianapolis Metropolitan Police Department ("IMPD") Officer Matthew Coffing, IMPD Officer Douglas Lepsky, and IMPD Major Thomas Kern.
Shortly before 6:00 p.m. on August 8, 2013, Officer Coffing was patrolling in his police car and came across a fight in progress involving at least three individuals near Southeastern Avenue and Villa Avenue in Indianapolis, which is an area of the city with a higher than average crime rate. Mr. Mays, though present, was not involved in the fight. Officer Coffing got out of his police car to break up the fight.
Mr. Mays began to walk away, and Officer Coffing told him to stop. Mr. Mays did not stop. Officer Lepsky arrived as back up, and Officer Coffing asked him to make contact with Mr. Mays. Officer Lepsky initially followed Mr. Mays in his marked police car. As Mr. Mays proceeded north on Harlan Street, Officer Lepsky parked his police car and began to follow Mr. Mays on foot. Officer Lepsky asked Mr. Mays to stop and identify himself. With his back to Officer Lepsky, Mr. Mays continued to walk north and said over his shoulder, "Fuck you! I don't have to stop!" Officer Lepsky continued to follow Mr. Mays and asked him to stop so that he could ask him about the fight. Mr. Mays continued to curse at him and refused to stop.
As Officer Lepsky got closer to Mr. Mays, he saw that Mr. Mays' hands were in his pockets. Officer Lepsky asked Mr. Mays to remove his hands from his pockets. Mr. Mays continued to walk away from Officer Lepsky, removed only his left hand from his pocket, and cursed, "Fuck you!" Officer Lepsky noticed that Mr. Mays kept his right hand in his pocket and angled his body away from Officer Lepsky in an apparent attempt to shield that side from Officer Lepsky's view. Officer Lepsky again asked Mr. Mays to remove his right hand from his pocket, and Mr. Mays again yelled "Fuck you!"
Mr. Mays suddenly stopped moving forward and began to move in a circular direction, further obstructing Officer Lepsky's view of Mr. Mays' right side. Officer Lepsky became concerned that Mr. Mays might have a weapon in his right pocket and that the situation was about to escalate into a confrontation. Officer Lepsky placed his left hand on Mr. Mays' right shoulder and, shortly thereafter, saw that Mr. Mays had a gun in his right hand. Officer Lepsky radioed "Gun!" and tased Mr. Mays with his issued Taser. The gun landed on the ground a few feet away from Mr. Mays' body. The entire encounter between Officer Lepsky and Mr. Mays lasted the amount of time it took them to walk approximately one-half of a city block.
Mr. Mays was placed under arrest for resisting law enforcement and being a felon in possession of a firearm. [Filing No. 40-1.] He was read his Miranda rights and questioned about the gun and the fight, but he claimed not to have knowledge of either. [Filing No. 40-1 at 1; Filing No. 50-1 at 5.]
On August 9, 2013, Mr. Mays was charged in state court with Unlawful Possession of a Firearm by a Serious Violent Felon and Resisting Law Enforcement. [Filing No. 40-2.] On August 12, 2013, two federal agents with the Bureau of Alcohol, Tobacco, Firearms, and Explosives visited Mr. Mays in jail. Mr. Mays signed a waiver of his Miranda rights, [Filing No. 48-2], and made an inculpatory statement. Mr. Mays appeared in state court on August 13, 2013, and was appointed a public defender at that time. [Filing No. 40-2 at 1.]
On August 21, 2013, Mr. Mays was charged in federal court with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). [Filing No. 1.] A federal grand jury later indicted him of that charge, [Filing No. 5], and the state court charges against Mr. Mays were dismissed on November 14, 2013, [Filing No. 40-2 at 1-2]. Mr. Mays now moves to suppress the evidence of the firearm recovered after what he contends to be an illegal seizure, as well as evidence of the inculpatory statement he later made to federal agents.
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