United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANT'S MOTION TO SUPPRESS
WALTON PRATT, JUDGE
matter is before the Court on Defendant Shawn L. Miller's
(“Miller”) Motion to Suppress. (Filing No.
23.) On February 14, 2017, Miller was indicted on Count
One: violating 18 U.S.C. § 922(g)(1), possession of a
firearm by a prohibited person, and Count Two: 21 U.S.C
§841(a)(1), possession with the intent to distribute
marijuana. (Filing No. 1.) Miller asserts that he
was unreasonably seized in violation of his Fourth Amendment
rights. Neither party requested an evidentiary hearing, nor
is one warranted, as the Court has noted no significant
disputed factual issues. “District courts are required
to conduct evidentiary hearings only when a substantial claim
is presented and there are disputed issues of material fact
that will affect the outcome of the motion.” United
States v. Curlin, 638 F.3d 562, 564 (7th Cir. 2011).
Pursuant to Federal Rule of Criminal Procedure 12(d), the
Court now states its findings of fact and conclusions of law.
For the reasons set forth below, the Court
denies the Motion to Suppress.
FINDINGS OF FACT
Tuesday, November 30, 2016, at approximately 11:43 p.m., a
representative from Protection 1 commercial alarm business,
called the Indianapolis Metropolitan Police Department
(“IMPD”) after a burglary alarm was activated at
Intercall Services (“Intercall”), a business that
Protection 1 monitors. (Filing No. 29, Govt. Exhibit 1.) At
11:44 p.m., the IMPD dispatch officer routed Daniel Reed
(“Officer Reed”) and Ian Peterson (“Officer
Peterson”) to Intercall, located at 2615 West
Washington Street, Indianapolis, Indiana, to investigate.
(Filing No. 23-2.) When the officers arrived at the
scene, Officer Peterson proceeded to check the front of the
building while Officer Reed drove his fully marked patrol car
to the rear of the building, located on an alley south of
Washington Street. Id. The alley was modestly
illuminated by street lights and, upon arriving, Officer Reed
immediately observed Miller standing in the alley near the
vicinity of Intercall's back door. (Filing No. 27 at
2.) Officer Reed placed his spotlight on Miller and
Miller immediately turned away. (Filing No. 32 at
2.) Officer Reed activated his emergency lights and
commanded Miller to stop. (Filing No. 32 at 1.)
Miller complied and put his hands up. (Filing No. 23-2 at
1.) Officer Reed then asked Miller what he was doing
behind the building and Miller explained he was
“walking home from his girl's house.”
Id. Officer Reed asked Miller for identification and
Miller initially denied having his wallet. Id.
Miller patted his pockets, and then changed his answer and
stated that he did have his wallet and retrieved it from his
left rear pocket. Id. At that time, Officer Reed
noticed a large bulge in Miller's front left pants pocket
and a second bulge near Miller's waist line. Id.
Miller handed Officer Reed his wallet, and when Officer Reed
took the wallet, Miller took flight. Id. Officer
Reed commanded Miller to stop and informed Officer Peterson
that Miller had taken flight. Id. Officer Peterson
observed Miller running and managed to grab Miller's
jacket. Id. Miller attempted to wiggle out of
Officer Peterson's grasp but was unsuccessful.
Id. Once Officer Reed caught up to Miller, both
officers tackled Miller and placed him in handcuffs.
Id. As he was being placed in handcuffs, Miller
voluntarily informed the officers that he possessed a gun in
his pocket. Id. Officer Reed asked Miller if he had
anything else on him that he needed to know about and Miller
responded, “a little weed.” (Filing No. 23-2
at 2.) While searching Miller incident to the arrest,
Officer Reed found a black sock, containing a baby bottle
with sixteen plastic bags of “green leafy
substance” stuffed inside Miller's waistband and
$303.00 was located in his front right pants pocket.
(Filing No. 27 at 6.) After reading Miller his
Miranda rights, Officer Reed asked Miller what was
in the bottle and Miller responded that it was marijuana.
(Filing No. 27 at 5; Filing No. 23-2 at 2.)
was arrested and charged with one count of Prohibited Person
in Possession of a Firearm in violation of 18 U.S.C. §
922(g)(1), and one count of Possession with the Intent to
Distribute Marijuana in violation of 21 U.S.C
§841(a)(1). (Filing No. 1.)
CONCLUSIONS OF LAW
moves to suppress all evidence obtained from his seizure,
specifically the firearm and marijuana. Miller asserts this
evidence should be suppressed because the initial stop,
detention, and interrogation were conducted without
reasonable suspicion and violated Miller's Fourth
Amendment rights. The issues before the Court are whether the
initial stop amounted to a seizure and, if so, whether the
seizure was supported by reasonable suspicion.
The initial stop amounted to a seizure.
argues that the initial encounter with Officer Reed in the
alley amounted to a seizure because he was not free to leave.
“It is well established that a seizure does not occur
merely because a police officer approaches an individual and
asks him or her questions.” United States v.
Smith, 794 F.3d 681, 684 (7th Cir. 2015) (citations
omitted). Only when a police officer, “by means of
physical force or show of authority, has in some way
restrained the liberty of a citizen may we conclude that a
seizure has occurred.” Terry v. Ohio, 392 U.S.
1, 20 n.16 (1968). “The crucial test for determining if
there has been a seizure is ‘whether taking into
account all of the circumstances surrounding the encounter,
the police conduct would have communicated to a reasonable
person that he was not at liberty to ignore the police
presence and go about his business.'”
Smith, 794 F.3d at 684 (quoting Florida v.
Bostick, 501 U.S. 429, 434 (1991)). The Court considers
several factors when determining whether a person was seized,
including: “the threatening presence of several
officers, the display of a weapon by an
officer…physical[ly] touching … the citizen,
[and] the use of language or tone of voice indicating that
compliance with the officer's request might be
compelled.” United States v. Mendenhall, 446
U.S. 544, 554 (1980) (citations omitted).
Court concludes that the initial stop amounted to a seizure
because a reasonable person under similar circumstances would
not believe he was free to leave. Officer Reed shined his
spotlight on Miller and when Miller turned away from the
squad car, Officer Reed commanded Miller to stop. Officer
Reed's conduct and command clearly communicated to Miller
that he did not have an option of ignoring the officer's
presence and he was not free to leave. The location in the
darkened alley also weighs in favor of seizure. See
Smith, 794 F.3d at 685 (holding a “[a] citizen
approached in an alley will very often be alone...and have
limited room in which to maneuver, conditions that may
contribute to the reasonable belief that simply walking away
from the police is not an option”). Accordingly, the
Court finds that the initial stop amounted to a seizure.
The seizure was supported by reasonable
next argues that the Court should suppress the firearm and
marijuana because the initial seizure by Officer Reed was
unreasonable under the Fourth Amendment. A police officer may
conduct an investigatory stop if that officer has a
reasonable suspicion supported by articulable facts that
criminal activity is afoot. See United States v.
Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (citing
Terry, 392 U.S. 1); see also United States v.
Bullock, 632 F.3d 1004, 1014- 15 (7th Cir.2011)
(citations omitted). Reasonable suspicion is more than a
hunch but less than probable cause, and it requires
“some minimal level of objective justification”
for making a stop. United States v. Sokolow, 490
U.S. 1, 7, (1989). When determining whether reasonable
suspicion exists, courts must assess the “totality of
the circumstances to evaluate whether the officer has a
particularized and objective basis for suspecting illegal
activity.” United States v. Zambrana, 428 F.3d
670, 675 (7th Cir. 2005) (quotation marks omitted). This
assessment is based on “the totality of the
circumstances known to the officer at the time of the stop,
including the experience of the officer and the behavior and
characteristics of the suspect.” United States v.
Lawshea, 461 F.3d 857, 859 (7th Cir. 2006). The
government bears the burden of establishing reasonable
suspicion by a preponderance of the evidence. United
States v. Uribe, 709 F.3d 646, 650 (7th Cir. 2013).
Court finds that the totality of the circumstances in this
case meet the standard of reasonable suspicion required by
Terry. See Terry, 392 U.S. 1. The officers
are able to point to specific and articulable facts that
warrant an investigatory stop. Officers Reed and Peterson
responded to a burglary alarm at Intercall. When Officer Reed
arrived at the scene shortly before midnight, a time when the
business was closed, Miller was the only person present and
standing in the alley near the vicinity of Intercall's
back door. Based on Miller's proximity to the location of
the tripped burglary alarm and the lack of other civilians in
the commercial area at the time, the Court concludes that
Officer Reed reasonably believed Miller was engaged in
illegal activity to justify a brief detention and the initial
questioning. Within less than two (2) minutes of the stop,
the officer observed Miller patting his pockets, changing his
statement about whether he had identification with him, and