United States District Court, N.D. Indiana, Fort Wayne Division
THERESA L. SPRINGMANN CHIEF JUDGE
17, 2017, several Fort Wayne Police Department officers
responded to two 911 calls, both identifying a black male,
potentially armed, threatening individuals in the same area.
This led to the arrest and search of Defendant Michael Smith,
who was found with two loaded Smith and Wesson 40 caliber
magazines. Upon searching the nearby area for the matching
gun, officers found a Smith and Wesson 40 caliber pistol and
a holster. On July 26, 2017, a grand jury indicted the
Defendant, charging him with being a felon in possession of a
firearm, a violation of 18 U.S.C. § 922(g)(1) [ECF No.
1]. On August 4, 2017, the Defendant pled not guilty [ECF No.
12]. On September 18, 2017, the Defendant filed a Motion to
Suppress [ECF No. 20], and the Government filed a Response
[DE 21]. On September 21, 2017, the Court referred [ECF No.
22] the instant Motion to Magistrate Judge Susan Collins to
review the Defendant's Motion and the Government's
Response, and order any necessary hearings or additional
briefing. On October 17, 2017, the Magistrate Judge held an
evidentiary hearing [ECF No. 24] and received post-hearing
briefing. Subsequently, Judge Collins issued a Report and
Recommendation [ECF No. 32], recommending that the Court deny
the Defendant's pending Motion
to the Federal Magistrate's Act, Title 28 U.S.C. §
636(b)(1)(A)-(C), the Magistrate Judge does not have
authority to issue a final order on this pending Motion to
Suppress. Instead, the Magistrate Judge submits proposed
findings of fact and recommendations to a district court.
See United States v. Sabo, No. 1:10-CR-21, 2010 WL
4628242, at *1 (N.D. Ind. Nov. 8, 2010). If a party files a
timely objection to the Magistrate Judge's report and
recommendation, § 636(b)(1) provides that a district
judge is to make a de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made. The court may accept, reject,
and/or modify, in whole or in part, the findings or
recommendations made by the Magistrate Judge. The judge also
may receive further evidence or recommit the matter to the
Magistrate Judge with instructions.
time for filing objections to the Report and Recommendation
has passed, and no objections have been filed. Portions of a
recommendation to which no party objects are reviewed for
clear error. Johnson v. Zema Sys. Corp., 170 F.3d
734, 739 (7th Cir. 1999).
evidentiary hearing, Fort Wayne Police Department Officer Tom
Vachon, Officer David Wilkins, and Detective Marc DeShaies
testified. The Magistrate Judge found both that the Defendant
did not meaningfully contest the officers' testimony and
that the officers' testimony was credible. Neither party
has objected to this assessment or to the Magistrate
Judge's characterization of the testimony. Accordingly,
the Court adopts the Magistrate Judge's findings of fact
regarding the events of June 17, 2017, as well the events
regarding the Defendant's phone call on July 26, 2017.
Finding no clear error, the Court adopts, in full, the
Magistrate Judge's detailed analysis of the law that is
applicable to 911 emergency calls by witnesses, and the
conclusion that the callers' identifying information, the
sufficiency of detail contained in the calls, and a
caller's request for immediate dispatch in the face of an
ongoing emergency, gave the officers the necessary reasonable
suspicion to stop the Defendant. The Court also adopts the
Magistrate Judge's conclusions that the officers did not
de facto arrest the Defendant and violate his Fourth
Amendment rights, and that it was appropriate to tase the
Defendant, because (1) under the circumstances, the officers
could not ask the Defendant questions typical of an
investigatory stop; (2) the officers acted reasonably when
raising their weapons at the Defendant after he refused to
comply with the officers' commands; (3) the Defendant
failed to comply with the officers' instructions; and (4)
the officers could see the outline of a pistol grip in the
Defendant's left front pant pocket. Moreover, the Court
adopts the Magistrate Judge's conclusion that the pat
down of the Defendant did not violate his Fourth Amendment
rights because the officers had reasonable suspicion to
believe that the Defendant was armed and that the
Defendant's apparent state of intoxication provided
probable cause to arrest him. Finally, the Court adopts the
Magistrate Judge's analysis of the law applicable to the
fruit of an unlawful search and seizure doctrine, and the
Magistrate Judge's conclusion that because the pistol was
not discovered as a result of a search of the Defendant's
person, the Defendant has failed to show any grounds for
suppressing evidence of the recovered pistol.
the Court adopts the recommendation to deny the Motion to
Suppress on grounds that the officers did not violate the
Defendant's Fourth Amendment rights, either during the
investigatory stop or the resulting protective pat-down, as
both were conducted within the parameters of Terry v.
Ohio, 392 U.S. 1 (1968).
detailed above, the Court ADOPTS the Report and
Recommendation [ECF No. 32], and DENIES the Motion to
Suppress [ECF No. 20] for the ...