SUSAN COLLINS, Magistrate Judge.
Before the Court is a motion to suppress all evidence (DE 20) filed by Defendant Michael Smith. Smith seeks to suppress evidence discovered by police officers during an encounter on June 17, 2017, because all of the evidence was obtained as a result of violations of his Fourth Amendment rights. After considering the evidence and argument submitted by the parties in this matter, I RECOMMEND that Smith's motion to suppress all evidence be DENIED.
On July 26, 2017, Smith was indicted by way of a single-count indictment and charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (DE 1). On August 4, 2017, Smith pleaded not guilty. (DE 12). On September 18, 2017, Smith filed the instant motion. (DE 20). This matter was referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1). (DE 22). An evidentiary hearing on this matter was held on October 17, 2017. (DE 24). On December 18, 2017, Smith filed a post-hearing brief in support of his motion to suppress. (DE 29). The Government filed its response on January 18, 2018. (DE 30). Smith filed his reply brief on February 5, 2018. (DE 31).
At the evidentiary hearing, the Government offered the testimony of Fort Wayne Police Department ("FWPD") Officer Tom Vachon ("Officer Vachon"), FWPD Officer David Wilkins ("Officer Wilkins"), and FWPD Detective Marc DeShaies ("Detective DeShaies").
On the evening of June 17, 2017, two persons at the same address on Brown Street in Fort Wayne called 911 to report an armed person in the area. (Ex. A; Tr. 12, 71). Both callers identified themselves by their first names and gave the same addresses to the 911 receptionists. (Ex. A at 00:45, 2:50). The first caller gave an eyewitness account that a black male in a white shirt and blue jean shorts was walking a dog, behaving erratically, and threatening people with a gun.
Following the 911 calls, FWPD sent out two "[p]arty armed" dispatches. (Tr. 39; Ex 10). The first dispatch described the suspect as an intoxicated black male, in a white shirt and blue jean shorts, walking a dog on Brown Street heading towards Brooklyn Avenue, and threatening people with a gun. (Ex. A at 8:28-9:20; Ex. F; Ex. 10; Tr. 9-10, 34, 40, 71-72, 88-87). Officer Vachon received this information and immediately set out to find the suspect. (Tr. 9). In the second dispatch, the description was modified: the suspect was wearing a white and grey shirt with a Bulls logo. (Ex. 10; Tr. 24). Officer Vachon arrived in the area about four minutes after receiving the dispatch and observed a black male, wearing a white-colored shirt, walking a white dog and entering an alley off of Brown Street, close to Bevel Avenue. (Tr. 10-11; see Ex. 1). This person turned out to be Smith. (Tr. 14). Officer Vachon did not know where Smith had come from and could not see whether there was a Bulls logo on his shirt. (Tr. 11, 22).
Officer Vachon stopped, called out his location to other officers and dispatch, and exited his squad car. (Tr. 13). After Officer Vachon initially saw Smith, he lost visual of him for about 20 seconds when Smith entered the alley. (Tr. 13, 24). Smith saw Officer Vachon and continued into the alleyway to avoid him and the other officers. (Ex. 9, July 26, 2017, at 1:17 p.m., at 6:10-6:20; Tr. 42). Detective DeShaies, Officer Wilkins, and Officer Shefferly arrived shortly after Officer Vachon, and the four officers followed the suspect into the alley on foot. (Tr. 13, 33). Initially, Smith continued to walk away from them. (Tr. 43). When Detective DeShaies arrived he equipped his FWPD-issued shotgun as a precaution against Smith's dog, in case it posed a threat, but kept the shotgun pointed at the ground at first. (Tr. 73, 92). The other officers approached with their pistols in a low-ready position because they believed that Smith matched the description of the suspect in the dispatches and was armed and dangerous. (Tr. 14-15, 32, 42-43; see also Tr. 74). Because the officers were between 50 and 100 feet away from Smith, they could not detect whether Smith exhibited normal indicia of intoxication (e.g., slurred speech, odor of alcohol, blood shot eyes, disheveled clothes, etc.). (Tr. 25-26, 56, 94). The officers could see that Smith was not wearing blue jean shorts or a white shirt; rather, he was wearing long blue jean pants and a grey and white shirt. (Tr. 24, 39-40, 73-74, 90-91). At that time, the officers could not see whether Smith's shirt had a Bulls logo.
Shortly after entering the alley, Officer Vachon yelled, "Stop! Police!" (Ex. 5 at 4:56; Tr. 13-14, 27). At that point Smith stopped, and the officers testified that he was not free to leave. (Tr. 27, 59, 93). As the officers closed the distance between themselves and Smith they could see the Bulls logo on his shirt. (Tr. 14, 73). Detective DeShaies initially intended to conduct an investigatory interview with Smith to see if he was the person described in the 911 calls, get his version of events, and to make sure that Smith did not have a gun on him. (Tr. 102). However, Detective DeShaies abandoned this plan because Smith did not cooperate with the officers. (Tr. 102).
Smith did not have complete control over his dog, which started barking and behaving aggressively towards the officers. (Tr. 41, 60-61, 75). To ensure their safety, the officers ordered Smith to tie the dog's leash to a nearby fence. (Ex. 5 at 4:15-4:25; Tr. 13-14, 41, 44-45, 75; see also Ex. 8). Smith did not tie his dog up when commanded and failed to do so for approximately three to three-and-a-half minutes (Ex. 5 at 5:00-8:30), despite the officers threatening to tase Smith and shoot his dog if he did not follow their instructions (Ex. 5 at 7:55; Ex. 8 at 1:05, 2:35; Tr. 94-95). In fact, Smith argued with the officers to avoid tying up his dog, which Detective DeShaies found suspicious. (Tr. 76). The officers suspected that Smith was intoxicated and stalling; he mumbled and slurred his speech, he swayed and stumbled, he did not appear completely coherent, he had a blank gaze, and his demeanor did not change despite the tense nature of the encounter. (Tr. 16, 43, 76, 78, 95-96).
The officers continued to close the distance to about eight to 10 feet. (Tr. 78). Officer Wilkins and Detective DeShaies became concerned that Smith was armed because they observed something that looked like the grip of a pistol in Smith's left pant pocket. (Tr. 44, 61-62, 76, 80). Officer Shefferly was providing cover with a taser aimed at Smith. (Tr. 78).
Eventually, Smith loosely tied his dog to a fence. (Tr. 79). The officers then ordered Smith to lift up his shirt to show that he had no weapons in his waist band, walk towards them and away from the dog, and get on his knees. (Ex. 5 at 8:40-9:10; Ex. 8 at 3:15-3:24; Tr. 45, 99). Smith was not compliant with these orders; he did not create a safe amount of distance between himself and the dog and appeared to use the dog to create a barrier between himself and the officers, which gave the officers further concern. (Ex. 5 at 8:40-10:20; Tr. 80-81, 45, 99-100). The officers also ordered Smith to put his hands on his head and to keep them there. (Ex. 5 at 10:11; Ex. 8 at 4:23-5:00; Tr. 15, 46). However, Smith did not adhere to this order either and repeatedly dropped his hands to his side despite warnings that he would be tased if he did so. (Tr. 15, 27, 46, 48). After Smith's repeated refusals to listen to the officers' instructions and warnings, and because the officers were concerned that Smith was reaching for a weapon, Officer Shefferly tased Smith for about five seconds while Officer Wilkins gained physical control of Smith.
At that point, Officer Wilkins could smell alcohol on Smith and intended to arrest Smith for publication intoxication. (Tr. 48; see Tr. 83-84). Officer Wilkins then frisked Smith and believed doing so was justified as a search incident to arrest or a pat down pursuant to reasonable suspicion that Smith was the suspect in the 911 calls. (Tr. 47-49, 54; see also Tr. 83-84). Officer Wilkins felt an object that he believed was a gun grip in Smith's front left pant pocket, opened up the pocket, and found two fully loaded Smith and Wesson 40 caliber magazines. (Tr. 16, 47, 81). Based on his experience, Officer Wilkins believed that Smith also had a gun. (Tr. 47).
The officers searched the area for the matching gun, and shortly after finding the magazines, the officers found a Smith and Wesson 40 caliber pistol and a holster on the lawn of a nearby house, close to some trashcans. (Ex. 5 at 13:40; Ex. 8 at 6:20-6:30; Ex. 4; Tr. 16-17, 82, 84). Detective DeShaies noted that the ground was covered in dew, but the firearm was not. (Tr. 82). Detective DeShaies also interviewed a resident of the property where the gun was found (Ex. 8 at 8:23-25:55), who claimed that she had taken the trash out about three hours earlier and had not seen a gun close to the trash cans. (Ex. F at 2; Ex. 8 at 25:50-26:00).
Smith did not have a valid permit for a handgun. (Tr. 51). Officer Wilkins contacted dispatch who informed him that Smith had been convicted of a felony involving domestic battery and was prohibited from carrying handgun. (Tr. 51). Officer Wilkins placed Smith under arrest for being a felon in possession of a handgun and carrying a handgun without a license with a previous felony conviction in the past 15 years. (Tr. 51). Smith was not charged with public intoxication, because, in Officer Wilkins's experience, that charge would have likely been dismissed later. (Tr. 51-52).
Detective DeShaies transported Smith to the Allen County Jail. (Tr. 62). While in Detective DeShaies's vehicle, Smith continued to be uncooperative and exhibit signs of intoxication. (Ex. 10 at 3). In Detective DeShaies's experience, the encounter with the officers and the taser would not inhibited Smith's understanding of events. (Tr. 97-98).
Following Smith's incarceration, he conducted a number of telephone calls with his girlfriend, which were recorded. In the phone calls, Smith admitted that he had been intoxicated during the encounter with the officers. (Ex. 9, time stamped July 26, 2017, at 1:17 p.m., at 11:15-11:20).
"The Fourth Amendment to the Constitution of the United States prevents the Government from conducting unreasonable searches and seizures." United States v. Whitaker, 546 F.3d 902, 906 (7th Cir. 2008) (citing United States v. Arvizu, 534 U.S. 266, 273 (2002)); see U.S. Const. amend. IV. Two categories of seizure implicate the Fourth Amendment: an arrest and an investigatory stop. United States v. Parker, No. 3:09-CR-148 JD, 2010 WL 2943649, at *2 (N.D. Ind. July 21, 2010) (quoting United States v. Mancillas, 183 F.3d 682, 695 (7th Cir. 1999)). Under Terry v. Ohio, 392 U.S. 1 (1968) and its successors, a stop supported by reasonable articulable suspicion "`reasonable' under the fourth amendment." United States v. Wooden, 551 F.3d 647, 649 (7th Cir. 2008) (citing Illinois v. Wardlow, 528 U.S. 119, 123 (2000); United States v. Chaidez, 919 F.2d 1193 (7th Cir. 1990)). "Reasonable suspicion is less than probable cause but more than a hunch." United States v. Maclin, 313 F. App'x 886, 888 (7th Cir. 2009) (citing United States v. Lawshea, 461 F.3d 857, 859 (7th Cir. 2006)). The reasonable suspicion determination is based on:
Lawshea, 461 F.3d at 859 (citations omitted).
For an encounter to "remain a valid Terry stop, the stop must be `limited in scope and execution through the least restrictive means reasonable.'" Gentry v. Sevier, 597 F.3d 838, 845 (7th Cir. 2010) (quoting United States v. Grogg, 534 F.3d 807, 810 (7th Cir. 2008)). If a Terry stop is unreasonably intrusive then, "while technically not an `arrest,' it may be `tantamount' to an arrest" requiring probable cause." United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994) (quoting Dunaway v. New York, 442 U.S. 200, 212-16 (1979)).
Smith argues that he was seized in violation of his Fourth Amendment rights because: (1) the 911 calls and the officers' observations did not create reasonable suspicion that Smith was committing, had recently committed, or was about to commit a crime; and (2) Smith was de facto arrested without probable cause from the outset of the encounter. As discussed below, neither argument is persuasive.
The analysis begins by evaluating "the reasonableness of the officers' initial stop of [Smith]." United States v. Weaver, 8 F.3d 1240, 1243 (7th Cir. 1993) (citing United States v. Sharpe, 470 U.S. 675, 682 (1985); Terry, 392 U.S. at 20). "Under most circumstances, when an officer observes someone who fits the description given by a dispatcher of a person involved in a disturbance and the observation is near in time and place to the disturbance, the officer may stop the suspect." United States v. Hicks, 531 F.3d 555, 558 (7th Cir. 2008) (citing United States v. Lenoir, 318 F.3d 725, 729 (7th Cir. 2003)).
However, an anonymous tip of "general criminality" is "insufficient to establish reasonable suspicion." United States v. Fields, 373 F. App'x 624, 627-28 (7th Cir. 2010) (quoting Florida v. J.L., 529 U.S. 266, 271 (2000)). Tips containing "specific information regarding an ongoing emergency . . . justify an immediate police response" and do not require additional pre-response verification. Id. at 628 (citing United States v. Wooden, 551 F.3d 647 (7th Cir. 2008); Hicks, 531 F.3d at 558-59); see Whitaker, 546 F.3d at 909; United States v. Drake, 456 F.3d 771, 774-75 (7th Cir. 2006) (collecting cases). A tip is generally presumed to be reliable, particularly if the tipster identifies him or herself by giving a name, a telephone number where the tipster can be reached, or an address. See Fields, 373 F. App'x at 627; Wooden, 551 F.3d 647; Whitaker, 546 F.3d at 909; Hicks, 531 F.3d at 559-60; Drake, 456 F.3d at 775; Carr v. Jehl, No. 13 CV 6063, 2015 WL 362089, at *4 (N.D. Ill. Jan. 28, 2015).
Smith argues that the officers did not have reasonable suspicion to conduct a Terry stop because: (1) the 911 callers were not sufficiently reliable; and (2) Smith did not resemble the person described in the 911 calls.
First, Smith argues that neither 911 caller was reliable because they were essentially anonymous. However, Smith does not dispute that both callers gave their first names and an address, and that one caller gave his phone number to 911; rather, Smith asserts that such information did not relieve the callers of their anonymity. The Seventh Circuit has "repeatedly rejected this argument" and held that once a caller gives 911 her name, she has identified herself and is not anonymous. Fields, 373 F. App'x at 627 (citations omitted); see Hicks, 531 F.3d at 559 (finding that a caller is not anonymous if he provides a name, location, a description of clothing). The point of providing identifying information is to hold the 911 callers accountable, and thereby increase the reliability of their tips. See J.L., 529 U.S. at 270; Wooden, 551 F.3d at 649. ("Knowing a tipster's name increases the chance that he can be held accountable (both state and federal governments make it a crime to tell material lies to law-enforcement officials), and knowledge that a tipster has inside information likewise increases the chance that the report of crime is accurate."); Hicks, 531 F.3d at 559 (noting "the reliability of a known tipster whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricate" (citation and internal quotation marks omitted)). That is exactly what happened here as one of the 911 callers provided enough information for Officer Wilkins to follow up and interview her. (Tr. 66-67). Therefore, I CONCLUDE that the 911 callers were not anonymous and were reliable.
Further, the Seventh Circuit has held that, "reports of ongoing emergencies made in 911 calls are subject to less testing in court than other out-of-court statements." Hicks, 531 F.3d at 559-60 (citing Davis v. Washington, 547 U.S. 813, 827-28 (2006)); see Whitaker, 546 F.3d at 910 (finding that "the police had the right to detain the occupants of the car long enough to ascertain whether the situation described by the callers was still an ongoing threat"). Here, both callers described an ongoing emergency that required immediate dispatch: an intoxicated suspect was waiving a gun, threatening people in the area, and stating that he would return. Reporting such activity was sufficient to create reasonable suspicion for the officers to conduct an investigatory stop of an individual matching the suspect's description without "require[ing] further pre-response verification . . . ." Whitaker, 546 F.3d at 909; see Wooden, 551 F.3d at 650 ("When a crime is in progress, prompt action is essential."). Therefore, the information in the 911 calls is presumed to be reliable because the 911 callers identified themselves "and specifically describe[d] a disturbance that pose[d] a potential threat to public safety." Fields, 373 F.App'x at 627 (citing Drake, 456 F.3d at 775); see also Wooden, 551 F.3d at 650 ("A 911 system designed to provide an emergency response to telephonic tips could not operate if the police had to verify the identity of all callers and test their claim to have seen crimes in progress.").
Smith's next argument is that the information contained in the 911 calls did not "provide[] sufficient details to allow the officers to identify the suspect[]." Drake, 456 F.3d at 775. Whether the officers' observations sufficiently corroborated the details in the police dispatch and 911 calls is considered in the totality of the circumstances. See Whitaker, 546 F.3d at 911; Lenoir, 318 F.3d at 729 (citing United States v. Quinn, 83 F.3d 917, 921 (7th Cir. 1996)). Again, because the 911 callers reported an ongoing emergency, the situation permitted the officers to utilize "a lower level of corroboration before conducting a stop . . . ." Hicks, 531 F.3d at 559 (citations omitted); see Carr, 2015 WL 362089 at *4 ("The caller's immediate report of a gun makes the information more reliable, as `contemporaneous report[s]' have `long been treated as especially reliable' under the law." (alteration in original) (quoting Navarette v. California, 134 S.Ct. 1688, 1683 (2014)).
When Officer Vachon commanded Smith to stop, the officers had received the following information regarding the suspect in the 911 calls: a black male, in blue jean shorts and a white t-shirt
Keeping in mind the lower level of corroboration required for 911 calls reporting an ongoing emergency, the officers' observations and the dispatch descriptions were sufficient to confer reasonable suspicion that Smith was the suspect in the 911 calls. It is uncontested that the officers observed Smith, a black male, walking a dog in the same geographic area and same time as the reported emergency. See Lenoir, 318 F.3d at 729 (citation omitted). The officers were not required to corroborate all but only "some of the call's details, . . . to justify a brief investigatory stop because brandished guns create a risk of violence." Fields, 373 F. App'x at 628 (emphasis added); see also United States v. Terry-Crespo, 356 F.3d 1170, 1176 (9th Cir. 2004). Moreover, it is easy to imagine that from a distance of 50 to 100 feet, blue jean shorts could look similar to long blue jean pants, and a grey and white shirt may appear white. Therefore, Smith's argument that he did not sufficiently resemble the suspect described in the 911 calls fails.
Smith also argues that he was merely walking his dog at night when the officers saw him, and that such innocent conduct could not give rise to reasonable suspicion. However, it is well established that "behavior that is innocent in isolation may in a particular context give rise to a reasonable suspicion." Maclin, 313 F. App'x at 889 (citing Lawshea, 461 F.3d at 859); see also United States v. Arvizu, 534 U.S. 266, 277 (2002); United States v. Figueroa-Espana, 511 F.3d 696, 703 (7th Cir. 2007). Also, Smith's attempt to avoid the officers after seeing Officer Vachon provided additional suspicion to perform a Terry stop. Lenoir, 318 F.3d at 729 (citing Wardlow, 528 U.S. at 124; Quinn, 83 F.3d at 921).
Considering the totality of the circumstances, I CONCLUDE that the officers had reasonable suspicion to perform a Terry stop on Smith and were not confronted "with any reason to doubt" that Smith was the suspect described in the 911 report. Drake, 456 F.3d at 775.
Having found that the officers had at least reasonable suspicion to justify an investigatory stop, the next issue is whether the officers' actions were reasonable under the circumstances. Weaver, 8 F.3d at 1244. "Subtle, and perhaps tenuous, distinctions exist between a Terry stop, a Terry stop rapidly evolving into an arrest[,] and a de facto arrest." Tilmon, 19 F.3d at 1224; see Matz v. Klotka, 769 F.3d 517, 525 (7th Cir. 2014) (citations omitted). "A Terry stop may be transformed into a formal arrest requiring probable cause if an officer's use of force is sufficiently disproportionate to the purpose of the stop—which may include ensuring the safety of the officers or others—in light of the surrounding circumstances." Matz, 769 F.3d at 524-25 (citations omitted). "[U]sing handcuffs, placing suspects in police cars, drawing weapons, and other measures of force more traditionally associated with arrests may be proper during an investigatory detention, depending on the circumstances." United States v. Bullock, 632 F.3d 1004, 1016 (7th Cir. 2011) (citation omitted). "[T]he crux of [the] inquiry is whether the nature of the restraint imposed meets the Fourth Amendment's standard of objective reasonableness." United States v. Vega, 72 F.3d 507, 515 (7th Cir. 1995) (citing United States v. James, 40 F.3d 850, 875 (7th Cir. 1994)); see Matz, 769 F.3d at 535 ("The investigation following a Terry stop must be reasonably related in scope and duration to the circumstances that justified the stop in the first instance so that it is a minimal intrusion on the individual's Fourth Amendment interests." (citations and internal quotation marks omitted)). "In determining whether the degree of intrusiveness of an investigatory stop was objectively reasonable, [courts] consider whether the suspect's own actions in resisting the legitimate efforts of police to stop and question him played a role in bringing about the challenged police conduct." Weaver, 8 F.3d at 1243 (citing Graham v. Connor, 490 U.S. 386, 396 (1989); Tom v. Voida, 963 F.2d 952, 958-59 n.6 (7th Cir. 1992)).
Smith claims that he was de facto arrested from the beginning of the encounter because he was commanded to stop, the officers threatened him and his dog, and all four officers approached him with their guns drawn and pointed at him. Smith also argues that the officers did not ask questions typical of an investigatory stop before detaining him. For the reasons discussed below, I FIND that Smith was not de facto arrested and that his Fourth Amendment rights were not violated.
First, the officers did not aim their weapons at Smith from the start of the encounter. Officer Vachon and Officer Wilkins approached with their guns in a "low ready" position. (Tr. 32, 43). Detective DeShaies approached with his shotgun pointed at the ground. (Tr. 92). As Detective DeShaies got closer he trained his shotgun on Smith's dog, which was barking aggressively at the officers. (Tr. 75). Officers Vachon and Wilkins testified that when Smith did not comply with the officers' commands to tie up his dog and keep his hands away from his pocket, they may have aimed their weapons at Smith. (Tr. 33, 59). Under these circumstances— that is, the officers were confronted with an individual that they believed was armed and dangerous, appeared intoxicated, with an aggressive dog, and was resisting their instructions— they were permitted to aim their guns at Smith due to a "legitimate fear for personal safety." Matz, 769 F.3d at 526. Therefore, it was not unreasonable for the officers to draw their weapons and train them on Smith "to safely effect the stop." Id. (citing Lawshea, 461 F.3d at 860).
Second, the officers did not exceed the scope of the stop by proceeding without first asking Smith any questions typical of an investigatory stop. Detective DeShaies testified that the officers would have conducted an interview with Smith but his lack of cooperation prevented this from taking place. Indeed, from the outset of the encounter Smith argued with the officers, exhibited indicia of intoxication, and did not adhere to their instructions. Thus, the officers did not ask Smith any questions because of Smith's "own actions in resisting [the] officer[s'] efforts." Jewett v. Anders, 521 F.3d 818, 825 (7th Cir. 2008) (citations and internal quotation marks omitted).
Third, even after Smith placed the dog's leash around a pole, he persisted in not complying with the officers' orders. The officers testified that Smith hesitated in coming closer to them and away from his dog, creating a barrier between himself and the officers. Further, Smith failed to adhere to the officers' orders to keep his hands on his head and dropped them to his side multiple times. The officers reasonably considered Smith to be a danger to them and to himself. See id at 825 ("Officer Anders had been advised that Thompson could be armed, and he reasonably considered Thompson to be dangerous to himself, his partner and others."). Moreover, the officers could see the outline of a pistol grip in Smith's left front pant pocket, where Smith's left hand was dropping despite numerous warnings not to do so. At that point, Officer Shefferly tased Smith. Given the circumstances of the encounter that posed a threat to the officers, I FIND that the use of a taser was "appropriate to accomplish the purpose of [the] investigatory stop," Weaver, 8 F.3d at 1244 (alteration in original), and "did not convert the encounter into a full arrest." Jewett, 521 F.3d at 826-27 (footnote omitted).
Because the officers had reasonable suspicion to believe that Smith was armed, and because the officers did not exceed the scope of an investigatory stop, the officers' pat down of Smith's exterior did not violate his Fourth Amendment rights. Moreover, the officers testified that Smith's behavior—that is, his slurred speech, swaying and unsteady posture, stumbling, and his failure to appreciate the situation he was in—provided probable cause to arrest Smith for public intoxication. Once the officers were closer to Smith, they could also smell the heavy odor of alcohol on him. The Government argues that by the time Officer Wilkins gained physical control Smith, there was probable cause to arrest Smith for public intoxication.
Finally, the Government argues that, in any event, the Court should not suppress evidence of the Smith and Wesson 40 caliber pistol because it was not discovered as a result of a search of Smith's person. As Smith admitted in a phone call to his girlfriend, he threw the gun away before the officers commanded him to stop. It is well established that an individual is not seized until he submits to a show of authority by law enforcement or law enforcement forces him to submit. See California v. Hodari D., 499 U.S. 621, 629 (1991); United States v. Mays, 819 F.3d 951, 956 (7th Cir. 2016) ("[A] fleeing suspect—even one who is confronted with an obvious show of authority—is not seized until his freedom of movement is terminated by intentional application of physical force or by the suspect's submission to the asserted authority." (citation and internal quotation marks omitted)). Because Smith had not submitted to the officers when he abandoned the pistol, it could not be the fruit of an unlawful search or seizure even if the officers had violated Smith's Fourth Amendment rights, and therefore, I CONCLUDE that Smith has not shown any grounds for suppressing evidence of the pistol.
For the above reasons, I CONCLUDE that Smith's Fourth Amendment rights were not violated as to warrant suppressing the evidence in this case. I therefore RECOMMEND that Smith's motion to suppress all evidence (DE 20) be DENIED.
The Clerk is directed to send a copy of this Report and Recommendation to counsel for the parties. NOTICE IS HEREBY GIVEN that within 14 days after being served with a copy of this recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations. Fed. R. Crim. P. 59(b)(2). FAILURE TO FILE OBJECTIONS WITHIN THE SPECIFIED TIME WAIVES THE RIGHT TO APPEAL THE DISTRICT COURT'S ORDER.
