US v. Steele

• Decision Date: 28 January 1992
• Docket Number: No. IP 91-105-CR.,IP 91-105-CR.
• Parties: UNITED STATES of America v. Robert Dale STEELE, Defendant.
• Court: U.S. District Court — Southern District of Indiana

782 F. Supp. 1301

UNITED STATES of America v. Robert Dale STEELE, Defendant.

No. IP 91-105-CR.

United States District Court, S.D. Indiana, Indianapolis Division.

January 28, 1992.

COPYRIGHT MATERIAL OMITTED

Timothy Morrison, Asst. U.S. Atty., Indianapolis, Ind., for plaintiff.

Jeffrey A. Baldwin, Baldwin Martenet & Clutter, Indianapolis, Ind., for defendant.

ENTRY DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

TINDER, District Judge.

Defendant Robert D. Steele (Steele) moved to suppress evidence of a handgun seized from him on the evening of May 26, 1991 by Officer Roger Phillips (Phillips) of the Kokomo Police Department. Steele contends that he was seized and searched without a warrant or probable cause, and that the circumstances of the seizure did not fall within any of the recognized exceptions to those prerequisites. The government propounds a single argument in opposition to Steele's motion. The government argues that the encounter was voluntary; and, therefore, no fourth amendment seizure occurred. Because Steele was not seized until Phillips observed the shiny handgun in Steele's bag, Steele's Motion to Suppress will be denied.

FINDINGS OF FACT

Steele did not testify at the hearing on the Motion to Suppress, so the Court must examine the encounter based on the version of the facts given by the testimony of the two police officers.

At about 9:15 p.m. on Sunday, May 26, 1991, Officer Phillips, a rookie member of the Kokomo Police Department, was on routine patrol at the wheel of a marked police car. Phillips was in full police uniform. Officer Kelvin Lynn Archer (Archer), a four-year veteran of the Kokomo Police Department, accompanied Phillips that night as a Field Training Officer, presumably to observe Phillips' performance and to back him up in the performance of his police duties. Archer was wearing what he referred to as "plain clothes."

Phillips and Archer travelled south along Home Avenue. They observed Steele standing in front of a commercial building called the "Playhouse," which was on the west side of the street (right side of their vehicle). The officers believed that Steele was looking in the direction of their police vehicle. The Playhouse was closed on that evening, and the police had received reports of several burglaries at that business during Phillips' nine-month tenure with the Kokomo Police Department. Both Phillips and Archer testified that, because of these burglaries, they decided to stop and question the person seen by the shadows of the building. At this point, they had not identified the person as Robert Steele; however, apparently they believed that anyone near the closed building at this hour was suspicious enough to detain and question. Phillips drove beyond the Playhouse about one-half block and then turned back north on Home Avenue and pulled into the Playhouse parking lot.

As Phillips drove toward the Playhouse, Steele walked to the southeast side of the building, temporarily out of sight of the officers. Phillips maneuvered the patrol car so that it pointed southwest in the lot — aimed toward the southeast corner of the building. The patrol car stopped about thirty feet from the building. The Playhouse lot was not well lit; there were no other cars in the lot. Phillips turned on the halogen lights mounted on the roof of the patrol car. These lights were not the flashing red or blue lights traditionally used by police to signal a warning or to indicate a stop command; they were lights used solely to illuminate an area in need of additional lighting.¹

As the patrol car stopped in the parking lot, Steele returned to the front side of the Playhouse. Steele walked toward the police car without saying anything and without making any significant gestures. Phillips opened his car door, leaned out and told Steele to "stop right there." Phillips made his statement to Steele in an ordinary tone of voice, unaided by a megaphone or other method of amplification. Steele complied immediately; at that point he was directly in front of the car, about fifteen feet away. The patrol car's overhead halogen lights illuminated Steele and provided the officers a good view of him.

While Phillips approached Steele, Archer exited the passenger side of the car and remained near the vehicle. Neither officer displayed his firearm; Phillips carried a large police flashlight. Phillips and Steele stood in the illuminated area and faced each other directly. Phillips asked Steele what he was doing; Steele replied that he was on his way home and felt the urge to urinate, which he had done on the side of the Playhouse building. Both officers' testimony described Steele's demeanor as cooperative and pliant. Phillips asked Steele for identification; Steele handed Phillips a New Jersey driver's license.²

During this exchange, Phillips observed that Steele carried a black pouch on his right hip. Steele had his right hand on the pouch and appeared to be pushing the pouch to the rear — as though he did not want it to be in the officers' line of sight. Phillips asked Steele what was in the pouch, to which Steele replied "just clothes." Without further prompting, Steele opened the pouch and pulled out a T-shirt to display to Phillips. When Steele pulled out the shirt, Phillips saw into the pouch and observed the glint off a shiny steel handgun in the bottom of the bag. Phillips then saw the gun itself. After seeing the gun, Phillips directed Steele to remove the bag from his side. Steele complied and Phillips seized the gun and unloaded it. The gun is the evidence upon which the indictment is based and the evidence subject to Steele's Motion to Suppress.

Phillips testified that he told Steele to stop in front of the car because that location provided a good vantage point for the officers' protection. He testified that he did not have any specific reason to fear Steele at this point in the encounter; but, general police procedures dictate that caution be exercised. Both officers testified that if Steele would not have complied with Phillips' command to stop, then the officers would have further compelled him to stop. Phillips testified that he would not have allowed Steele to leave even after Steele produced his license, although Phillips was not prepared to make an arrest at that time.

Steele never told the officers that he did not want to talk to them; he never asked for an attorney or whether he was free to leave. Phillips did not inform Steele that Steele did not have to stay and did not advise Steele that he was not required to answer questions. Archer confirmed Phillips' view of the situation and Phillips' verbal communications with Steele, adding only that the decision to detain Steele had been made after he was spotted and before the encounter in front of the police car. Archer was not able to see the gun before its seizure, because of his limited view from the passenger side of the car. Archer remained by the patrol car and said nothing to Steele during the encounter.

As the Discussion section below concludes, the main fact to be determined by the Court is whether, based upon all the circumstances of the encounter, a reasonable person in Steele's position would have felt free to break off contact with the police and proceed unimpeded about his own affairs. Based upon the evidence produced at the hearing, this Court finds that a reasonable person in Steele's position would have felt free to leave.³

DISCUSSION AND CONCLUSIONS OF LAW

The government contests Steele's Motion to Suppress based solely on the strength of its argument that the encounter between Steele and the officers was not a seizure. At the hearing, and in its documents filed in opposition to Steele's Motion, the government declined to argue that the officers had the requisite suspicion to stop Steele and compel him to answer their questions.⁴ Thus, the sole issue presented is whether the officers "seized" Steele prior to the point that Officer Phillips saw the handgun in Steele's pouch and arrested him.⁵

The fourth amendment provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const. amend. IV. To suppress evidence of the handgun found on his person, Steele must prove that the government violated the fourth amendment in the process of obtaining that evidence from him. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In most cases, the primary focus is upon the order of two events: (1) when reasonable suspicion developed, and (2) when the seizure occurred.⁶ If a seizure is effected prior to the occurrence of facts creating a reasonable suspicion "justifying" the seizure, then the seizure is contrary to law.

In this matter, the government implicitly concedes that any seizure of Steele's person prior to the time Phillips saw the gun would be "unjustified." Thus, the only question is whether Steele had been "seized" prior to this time; if Steele was not seized, then there can be no fourth amendment violation and no basis for suppression. The threshold question is if and when a seizure occurred. United States v. Jaramillo, 891 F.2d 620, 625 (7th Cir.1989), cert. denied, 494 U.S. 1069, 110 S.Ct. 1791, 108 L.Ed.2d 792 (1990); United States v. Teslim, 869 F.2d 316, 321 (7th Cir.1989); United States v. Borys, 766 F.2d 304 (7th Cir.1985), cert. denied, 474 U.S. 1082, 106 S.Ct. 852, 88 L.Ed.2d 893 (1986).

Steele bears the burden of proving by a preponderance of the evidence that he was seized during his encounter with Officer Phillips. See United States v. Matlock, 415 U.S. 164, 177, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974) (preponderance standard); United States v. Feldman, 606 F.2d 673 (6th Cir.1979) (burden on party moving to suppress). A typical motion to suppress evidence based upon an unlawful seizure involves a shifting burden; the defendant bears the burden of proving...