Damon R. Leichty, Judge, United States District Court

Luke N. Reilander, US Attorney's Office, South Bend, IN, for Plaintiff.

Donald J. Schmid, Law Offices of Donald J. Schmid LLC, South Bend, IN, for Defendant.

OPINION AND ORDER

Damon R. Leichty, Judge, United States District Court

The government charged Charles Hartsell with one count of unlawfully possessing a firearm as a felon after law enforcement secured the firearm from his vehicle at the Four Winds Casino. 18 U.S.C. § 922(g)(1). On October 17, 2019, Mr. Hartsell filed a motion to suppress the evidence obtained by law enforcement, including his statements to officers, the firearm, and other evidence secured after he was placed in custody, arguing that his search and seizure violated the Fourth Amendment. The court held an evidentiary hearing on December 3, 2019 given the factual discrepancies. See United States v. Coleman , 149 F.3d 674, 677 (7th Cir. 1998) ; United States v. Berkowitz , 927 F.2d 1376, 1384 (7th Cir. 1991). The court now grants the motion to suppress.

FACTUAL FINDINGS

These facts emerged from the evidence and testimony presented to the court. See Fed. R. Crim. P. 12(d). On February 23, 2019, Charles Hartsell arrived at the Four Winds Casino in South Bend, Indiana where he played a slot machine. On the same day, Pokagon Tribal Police Department (PPD) Officer Erick Jordan was dispatched to the casino to investigate use of counterfeit money. Specifically, a patron, Randall Heidrich, told casino security that he exchanged a $100 bill for five $20 bills with another patron (eventually identified as Jason Clevenger). When Mr. Heidrich tried the $20 bills in a slot machine, they would not work, so he contacted casino security about the fake bills. The investigation, including review of security videotape, led law enforcement to an apparent association between Charles Hartsell and Jason Clevenger and their eventual simultaneous arrest.

Before PPD's involvement, Mr. Heidrich's complaint circled back to Jennifer Clopton, Director of Surveillance Operations at Four Winds Casino. She oversaw surveillance at the casino with a team of twenty-five individuals. Her department was responsible for surveilling the casino assets for protection and suspicious activity. The casino maintained a separate security department. Both casino departments interfaced with the PPD for law enforcement needs.

On that day, Ms. Clopton learned that a guest had been passed five $20 counterfeit bills, so she reviewed security video coverage of the casino to identify the suspect and his activity both before and after that exchange. The casino typically maintains videotape for 14-28 days. Ms. Clopton isolated videotape showing the counterfeit exchange with the suspect (who law enforcement determined to be Jason Clevenger) and reviewed videotape showing the suspect leaving the casino and later returning with another man (who law enforcement later identified as Charles Hartsell). The casino preserved at least most of the relevant video coverage.

As seen on video, at approximately 11:14 a.m. that morning, Messrs. Hartsell and Clevenger met on the casino floor and shook hands. Ex. 1A. They walked the casino floor while Mr. Hartsell counted and then handed Mr. Clevenger what appear to be separate bills of money at about 11:15 a.m. Exs. 1B, 1C. There was no evidence presented to discern whether the bills Mr. Hartsell handed to Mr. Clevenger were counterfeit or real. The two men separated and played at different slot machines. At 11:44 a.m., while sitting at a slot machine, Mr. Clevenger exchanged counterfeit bills with the casino patron, Mr. Heidrich. Tr. 19-20, 47-49; see also Exs. 1D, 1E, 2A, 2B.

About nine minutes later (11:53 a.m.), Mr. Hartsell approached Mr. Clevenger, who was sitting beside Mr. Heidrich at the slot machines. Ex. 1F. The two men talked momentarily for about thirty seconds as Mr. Clevenger printed out a TITO (ticket in; ticket out). The two men then proceeded to a CXC machine at the casino. Exs. 1F, 1G. A patron can use a CXC machine to cash in a TITO, exchange currency, and obtain change for larger bills. The two men left the casino floor at about 11:55 a.m. Ex. 1H.

The two men proceeded to Mr. Hartsell's vehicle—a gray Chrysler PT Cruiser—in the parking garage at about 11:57 a.m. Ex. 1I. About five minutes later, the two men parked the PT Cruiser in the casino's outdoor parking lot. Ex. 1J. Mr. Hartsell opened the rear driver-side door, as Mr. Clevenger exited the passenger seat and walked over to a white Buick near the PT Cruiser. Id. Mr. Hartsell stood next to the car as he surveyed the parking lot; and, at one point, he appeared to be on his cellphone. Id. Mr. Clevenger walked over to a white Buick, removed a long item covered in what appears to be a sheet or sheets, and placed the item in the backseat of Mr. Hartsell's PT Cruiser through the door that Mr. Hartsell had opened. Id . The two men then departed the parking lot in the PT Cruiser at about 12:03 p.m. Id.

In the meantime, the casino had called the Pokagon Police Department (PPD) to report the alleged exchange of counterfeit currency, and Officer Erick Jordan arrived soon thereafter. Tr. 45-46 He interviewed the victimized patron, Mr. Heidrich, at around 12:40 p.m. and then proceeded to the surveillance department to review videotape. Tr. 46, 50, 66-67. En route, he made contact with Ryan McCormick, the casino's Supervisor of Security, who shared that they had identified Jason Clevenger as the person who had exchanged the counterfeit bills with Mr. Heidrich. Tr. 50. Law enforcement had not identified Charles Hartsell by name at this time. Tr. 51, 74-75.

Officer Jordan then met with Justin Weber who worked in the casino's surveillance department. Tr. 51. Officer Jordan spent about ten minutes speaking with Mr. Weber and reviewing surveillance videotape. Tr. 73. Officer Jordan watched the video of Mr. Clevenger exchanging counterfeit bills with the patron (Exs. 1D, 1E) and the moment when Mr. Hartsell approached Mr. Clevenger to leave the casino (Ex. 1F). Tr. 51. Explaining that he had seen video of the two men arrive separately but leave together after the exchange with the patron, Mr. Weber provided Officer Jordan with a picture of Mr. Hartsell's vehicle and his license plate. Tr. 52, 59. Officer Jordan requested a picture of Mr. Clevenger's vehicle too. Id. Mr. Weber also provided information concerning Mr. Clevenger from his recorded driver's license associated with his casino player's card. Tr. 60.

While in surveillance, Officer Jordan reviewed the videotape of the two men proceeding to Mr. Hartsell's car (Ex. 1J). In Officer Jordan's words, he "just kind of want[ed] to see what they were doing, because [he] knew that counterfeit bills had been passed, [and he was] trying to see if Hartsell was involved with him in any sort of a way, because obviously they're walking around the casino together." Tr. 52.

From the video (Ex. 1J), Officer Jordan immediately believed he had identified a firearm being hidden under the sheets, which raised his concern knowing the casino was a soft target. Tr. 53. Officer Jordan, aside from being a trained police officer, is a hunter and outdoorsman, and he noticed how Mr. Clevenger held the apparent longarm rifle in a manner that indicated it was such a rifle and not some other long item. Id. ; Tr. 56. The presence of sheets to attempt to cloak the firearm, and the manner in which Mr. Hartsell appeared to keep a lookout solidified Officer Jordan's impression. Id.

The video recording and covering of the firearm make the identification of a weapon difficult, but how Mr. Clevenger held the item in this court's view objectively suggested a firearm, so the court credits Officer Jordan's testimony given his experience both professionally and personally. That he promptly reported his finding not just to the surveillance employee but to his superior officer underscores his credibility.

Officer Jordan did not review any other videotape at that time. Proceeding on the video he had reviewed (Exs. 1D, 1E, 1J), information provided by surveillance employee Justin Weber, and interview of patron Randall Heidrich, Officer Jordan reported the firearm transfer to his superior, Sergeant Adam Schaaf. Tr. 54. Officer Jordan went outside to look in the white Buick (since both suspects had departed in the PT Cruiser), but he observed nothing within plain view. Id.

PPD's substation sat but a few hundred yards from the casino, so Officer Jordan reported there to coordinate with Sergeant Schaaf. Law enforcement requested casino security to monitor the white Buick in the meantime, anticipating that Mr. Clevenger would return for his vehicle. Tr. 54-55. Officer Jordan confirmed at the substation that Jason Clevenger owned the white Buick and that he had an outstanding arrest warrant for counterfeiting. Tr. 60-61.

To Sergeant Adam Schaaf, a police officer since 2009 and sergeant since about 2017, the report of counterfeit bills was one thing, but the apparent transfer of a firearm in the parking lot afterwards elevated his concern. Tr. 92-93. He notified command, including Lieutenant Scott Hanley, who then called the Federal Bureau of Investigation (FBI) given its ultimate authority over tribal land. Id. Sergeant Schaaf also arranged for additional law enforcement support when the two men returned to the casino.

About twelve minutes later, law enforcement heard from the casino that Mr. Clevenger had returned. Tr. 61. The two men returned to the casino at about 2:17 p.m. Ex. 1K. The surveillance team at this time monitored the two men using a PTZ camera that could pan, tilt, and zoom—effectively tracking their movements. Tr. 30. When so alerted, Sergeant Schaaf and his team put together a brief plan based on their time constraints. PPD requested backup from the St. Joseph County Sheriff's Department.

At the casino, after identifying what slot machines both Jason Clevenger and Charles Hartsell were playing, officers approached and placed both men in handcuffs. Ex. 1K. In all, approximately five law enforcement officers participated. Id. Sergeant Schaaf handcuffed Mr. Hartsell, while Officer Jordan handcuffed Mr. Clevenger. Officer Jordan conducted a search incident to arrest of Mr. Clevenger. Tr. 65. On this record, he had no further interaction with Mr. Hartsell. The two suspects were separated by law enforcement.

Sergeant Schaaf performed no pat down or other search of Mr. Hartsell on the floor. Instead, Sergeant Schaaf moved Mr. Hartsell to a secure room (called the medical/investigation room) at around 2:20 p.m. Ex. 1L. Surveillance in the room recorded both video and audio. Mr. Hartsell was not free to leave. When security personnel opened the door for Sergeant Schaaf and Mr. Hartsell to enter the medical room, the security person said, "bring him in, get him searched up." Id. At approximately 2:20 p.m. in that room, Sergeant Schaaf asked Mr. Hartsell for consent to search him. Mr. Hartsell denied that request, saying he had not done anything wrong. Id.

Sergeant Schaaf thereafter began conducting a search of Mr. Hartsell. See Ex. 1L (with audio). He did not start with a pat down, but initially inserted his hand into Mr. Hartsell's red sweater or sweatshirt pocket and retrieved a pack of cigarettes. Next, Sergeant Schaaf retrieved a set of keys from one of Mr. Hartsell's pockets before patting down the outside of Mr. Hartsell's left front pants pocket, at which time he felt and then retrieved a narcotic smoking pipe. Ex. 1L, Tr. 106. During the search, Sergeant Schaff did not pat Mr. Hartsell down in the front torso area or the back area, just his legs.

Mr. Hartsell had no counterfeit bills on his person when he was searched. From the cigarette pack, law enforcement discovered methamphetamine. Tr. 99-100. Law enforcement also seized Mr. Hartsell's cellphone and placed it in airplane mode. Id.

At this time, law enforcement had no tips that Mr. Hartsell had been involved in passing counterfeit bills or that he was involved with Mr. Clevenger in a conspiracy to do so. Tr. 67-68. Law enforcement did not know Mr. Hartsell's name. Tr. 74-75. Law enforcement did not know his criminal history. Officer Jordan confirmed that law enforcement really did not know anything about him. Tr. 75. Law enforcement did not request Mr. Hartsell's criminal history until 4:15 p.m. that afternoon. Tr. 75; Ex. D.

Sergeant Schaaf had not seen any videos. He was relying (as he can) on information shared by Officer Jordan. He testified that the only information important to his investigation at that time, and at the time he prepared his report, was that Mr. Hartsell had received a firearm in the parking lot. Tr. 109. According to law enforcement involved in the case, Mr. Hartsell was not being investigated for passing counterfeit bills. In Sergeant Schaaf's words, he was informed only "that Mr. Hartsell and Mr. Clevenger were together, which [he] construed as information that they were together in this enterprise" (Tr. 110). Sergeant Schaaf called it "implied" (Tr. 111). That notwithstanding, he testified that no one had seen Mr. Hartsell pass any counterfeit bills, attempt to use counterfeit bills, or interact with patrons to do so. In recall, Officer Jordan confirmed that law enforcement had no information concerning Mr. Hartsell's involvement in any counterfeit money. Instead, he "just knew that the two were together while at the casino" (Tr. 84). Nothing on this record indicates that Mr. Hartsell was eventually charged with dealing in counterfeit bills.

Lieutenant Scott Hanley testified that, but for Mr. Hartsell's arrest and assuming he had a valid driver's license, he would have been permitted to leave in his vehicle sometime between 2:17 and 4:15 p.m. that day. Tr. 122.

In briefing, the government contends that, after the search, PPD Officer David Loza entered the medical room and advised Mr. Hartsell of his Miranda rights. ECF 67 at 6. Mr. Hartsell then spoke freely with Officer Loza, eventually admitting that there was a pistol and rifle in his car. Id. During this conversation, Mr. Hartsell alleged that he was working with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) as an informant for Task Force Officer Sheldon Scott to set up a gun sale with Mr. Clevenger. Id. TFO Scott was contacted by the PPD, and disputed Mr. Hartsell's characterization. Id.

PPD Detective Brian Beauchamp and FBI Special Agent Tom Weber eventually arrived at the casino to interview Mr. Hartsell. Id. at 7. They again advised Mr. Hartsell of his Miranda rights, and Mr. Hartsell spoke to them. He repeated his story of allegedly working with the ATF and provided both oral and written consent for a search of his PT Cruiser. Mr. Hartsell was brought to his car while it was being searched by law enforcement at about 5:40 p.m. Officers found a .22 rifle, 9 mm pistol, and one counterfeit bill. Tr. 79. Law enforcement conducted a search of the white Buick afterwards. Federal law enforcement obtained a search warrant for the information on Mr. Hartsell's cellphone. Id . Officer Jordan began his police report near 9:00 p.m. that evening. Tr. 83.

DISCUSSION

Pre-revolutionary writs of assistance permitted roving and abusive searches for contraband without any particularized or oath-based evidence of an offense. Colonial Americans reviled the practice precisely because they "placed the liberty of every man in the hands of every petty officer." Boyd v. United States , 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1886) ; see also Maryland v. King , 569 U.S. 435, 466-67, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (Scalia, J., dissenting); Indianapolis v. Edmond , 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). The Fourth Amendment to the United States Constitution worked to stamp out suspicionless searches and provided the right of the people "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." As the constitutional text suggests, the "touchstone of the Fourth Amendment is reasonableness." United States v. Knights , 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).

The Fourth Amendment constrains searches and seizures that are not justified under the circumstances or that are not conducted in a proper manner. See King , 569 U.S. at 446-47, 133 S.Ct. 1958. The Fourth Amendment generally requires a warrant before the government searches a person or his property. Indeed, searches conducted without a warrant "are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Arizona v. Gant , 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). When evidence is obtained as the result of a Fourth Amendment violation, it must be suppressed. Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

When a warrantless search or seizure has occurred, the government bears the burden of proving compliance with the Fourth Amendment by a preponderance of the evidence. United States v. Peters, 743 F.3d 1113, 1116 (7th Cir. 2014) ; United States v. Garcia-Garcia , 633 F.3d 608, 612 (7th Cir. 2011). The government has not met its burden in this case.

A. Law Enforcement Lacked Probable Cause to Arrest and Search Charles Hartsell.

The law does not merely presume a legal arrest when officers act without a warrant. United States v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985). Instead, under the Fourth Amendment, a warrantless arrest is reasonable where there is probable cause to believe that a criminal offense has been or is being committed. See United States v. Watson , 423 U.S. 411, 417-424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) ; Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). Probable cause is "not a high bar." Kaley v. United States , 571 U.S. 320, 338, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014). It "does not require an actual showing of criminal activity, or even that the existence of criminal activity is more likely true than not." United States v. Howard , 883 F.3d 703, 707 (7th Cir. 2018) (quotations omitted). By definition, probable cause looks to probabilities—"examining the totality of the circumstances in a common sense manner," United States v. Schaafsma , 318 F.3d 718, 722 (7th Cir. 2003), and the "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Gerstein v. Pugh , 420 U.S. 103, 121, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) ).

Law enforcement cannot rely on information gathered after an arrest and back-build a case for probable cause. Beck v. Ohio , 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Probable cause is determined by reasonable conclusions drawn from the facts known to the arresting officer at the time of the arrest. Maryland v. Pringle , 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). "Whether [an] arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it—whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Beck, 379 U.S. at 91, 85 S.Ct. 223 ; accord Brinegar , 338 U.S. at 175-176, 69 S.Ct. 1302. Thus, a law enforcement officer may act based on firsthand observations or the collective knowledge of law enforcement when officers communicate with each other. United States. v. Williams , 627 F.3d 247, 252-53 (7th Cir. 2010) ; United States v. Ellis , 499 F.3d 686, 690 (7th Cir. 2007).

Unlike the general search warrants of colonial America, the Fourth Amendment requires that probable cause be individualized—not just to the time of arrest, but specific to each defendant. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). "[G]eneralized suspicion alone is not enough to justify a warrantless ... seizure of a person." United States v. Johnson , 170 F.3d 708, 710 (7th Cir. 1999). A "person's mere propinquity to others independently suspected for criminal activity does not, without more, give rise to probable cause." Ybarra , 444 U.S. at 91, 100 S.Ct. 338. In short, "it is not unlawful for someone to be in the company of another." United States v. Heath, 188 F.3d 916, 922 (7th Cir. 1999) ; see also United States v. Williams , 341 U.S. 58, 64 n.4, 71 S.Ct. 595, 95 L.Ed. 747 (1951) ("[t]o be present at a crime is not evidence of guilt as an aider or abettor"); Ellis , 499 F.3d at 690 ("mere presence at the scene of a crime is not enough to establish probable cause").

The government says there was probable cause to arrest Mr. Hartsell for conspiracy in dealing counterfeit bills in violation of Indiana Code § 35-43-5-2 and 18 U.S.C. § 473. In response, Mr. Hartsell argues that this is just an after-the-fact justification for an illegal arrest and search, noting that neither the police report nor subsequent indictment charged Mr. Hartsell with dealing in counterfeit bills.

Based on this record, and based on the collective knowledge of law enforcement officers, including information reliably passed to them from casino security or surveillance, law enforcement knew (1) that Jason Clevenger and another unidentified man arrived at the casino in different vehicles; (2) that Jason Clevenger, while seemingly alone at a slot machine in the casino, passed counterfeit money to a patron; (3) that the unidentified man approached Jason Clevenger approximately nine minutes later and both men left the casino; (4) that Jason Clevenger apparently transferred a firearm from his white Buick to the other man's vehicle, a gray PT Cruiser; (5) the license plate number of the PT Cruiser; (6) that the two men left together in the PT Cruiser; and (7) that the two men returned to the casino around 2:17 p.m.

Probable cause to arrest the unidentified man (Charles Hartsell) was lacking. At the time, law enforcement had no information that he was involved in counterfeit bills. Law enforcement lacked his name and identity. Law enforcement had no information about his criminal history. He was not seen on videotape dealing in counterfeit bills, and no one provided any information (reliable or otherwise) to law enforcement that he was engaged in any such counterfeiting activity. According to Officer Jordan's testimony, law enforcement really knew nothing about the man. Tr. 75. Indeed, law enforcement had not run the PT Cruiser's license plate to pull the owner's name or any criminal history at that time.

It appears from this record, either from the videos that were reviewed by Officer Jordan or from information shared by casino security, that law enforcement was not aware of the videos (Exs. 1B, 1C) or circumstances of Mr. Hartsell counting what appears to be money and then handing that to Mr. Clevenger as they walked the casino floor before separating and playing different casino machines. That cannot then be included in the calculus; even if it were, no evidence exists on this record that the same bills Mr. Hartsell handed Mr. Clevenger were the counterfeit bills that Mr. Clevenger used with the duped casino patron. Possibilities aren't probabilities; on this record, that exchange between the two men cannot enhance the probability of cause or the reasonableness of the search or seizure.

Mere association with an individual suspected of criminal activity is not enough to establish probable cause. In United States v. Di Re, 332 U.S. 581, 583, 68 S.Ct. 222, 92 L.Ed. 210 (1948), the defendant was sitting in the passenger seat of a car at the time of his arrest. He sat in the presence of two other men—one an informant who sat in the backseat and the other the driver who had received counterfeit gasoline ration coupons from the informant. Id. No evidence was introduced that the defendant was in the car at the time of the illegal transaction of counterfeit coupons between the driver and the informant. Id. at 593, 68 S.Ct. 222. The defendant and the driver were taken into custody, at which time the defendant complied with a direction to put the contents of his pockets on a table. Id. The defendant laid down two gasoline and several fuel oil ration coupons. Id. Later, he was booked and thoroughly searched, which revealed one hundred inventory gasoline ration coupons that proved to be counterfeit. Id. The United States Supreme Court, in affirming the circuit court's determination that the defendant's arrest was impermissible, said even "[i]f [the defendant] had witnessed the passing of papers from hand to hand, it would not follow that he knew they were ration coupons, and if he saw that they were ration coupons, it would not follow that he would know them to be counterfeit." Id. at 593, 68 S.Ct. 222 ; cf. United States v. Gary, 790 F.3d 704, 707 (7th Cir. 2015) ("[defendant] was a passenger sitting right next to the driver when the driver sold the detective heroin without any attempt to conceal the transaction [and] [i]n such close quarters, it was reasonable to infer that [the defendant] and the driver were probably engaged in a common enterprise"). This case is akin to Di Re .

"Presumptions of guilt are not lightly to be indulged from mere meetings." Di Re, 332 U.S. at 593, 68 S.Ct. 222. It seems Mr. Hartsell was arrested because of his propinquity to a person known to have an arrest warrant for passing counterfeit bills and a person who, based on probable cause, passed counterfeit bills to a patron that day at the casino. Mr. Hartsell was not immediately at Mr. Clevenger's side and thus arguably participating in the scam; nor had Mr. Hartsell rushed to Mr. Clevenger's side after the transaction with the patron so that they both could leave the casino, as some nine minutes passed before that occurred.

A police officer's subjective intent is irrelevant in determining probable cause. Devenpeck, 543 U.S. at 152, 125 S.Ct. 588. It just so happens in this case that the expression of that subjective intent (Tr. 52, 84, 110-11) mirrors the objective nature of the evidence—namely, that Mr. Hartsell was arrested based on his mere or implied association with someone who had dealt in counterfeit money. Ybarra, 444 U.S. at 91, 100 S.Ct. 338. In Officer Jordan's words, he "just knew the two [men] were together while at the casino." Tr. 84. Without probable cause, the search and seizure in this case were constitutionally impermissible.

B. The Search and Seizure Were Not Sanctioned as a Terry Stop.

The government argues in the alternative that law enforcement officers needed only reasonable suspicion to conduct the search they did. Under the Fourth Amendment, a "seizure" does not occur when a police officer merely approaches an individual and asks him or her questions. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Only when a law enforcement 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, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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.’ " United States v. Smith , 794 F.3d 681, 684 (7th Cir. 2015) (quoting Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ).

Objectively, law enforcement officers seized Mr. Hartsell. The totality of the circumstances here communicated to a reasonable person that he was not at liberty to ignore law enforcement's presence and go about his business. Bostick , 501 U.S. at 434, 111 S.Ct. 2382 ; see also Michigan v. Chesternut , 486 U.S. 567, 573-74, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). The presence of five officers communicated a serious and overwhelming display of forceful presence, not unduly so given the need for their protection and that of other casino patrons, but one that would objectively communicate to a reasonable person that he was not free to go. Mr. Hartsell was handcuffed and led to a secure room, where he was in fact told he could not leave. He was searched; his property was seized; and he was questioned after being given his Miranda warnings. Mr. Hartsell was "seized" for purposes of the Fourth Amendment, so the court must determine if this seizure was reasonable.

A law enforcement officer may conduct an investigatory stop if that officer has a reasonable suspicion supported by articulable facts that criminal activity is afoot. United States v. Broomfield , 417 F.3d 654, 655 (7th Cir. 2005) (citing Terry , 392 U.S. 1, 20, 88 S.Ct. 1868 (1968) ); see also United States v. Bullock , 632 F.3d 1004, 1014-15 (7th Cir. 2011). Reasonable suspicion is more than a hunch but less than probable cause, and it requires objective justification for making a stop. United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). When determining whether reasonable suspicion exists, courts must assess the "totality of the circumstances to assess whether the detaining officer has a particularized and objective basis for suspecting illegal activity." United States v. Zambrana , 428 F.3d 670, 675 (7th Cir. 2005) (quotation 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). To comply with Terry, first the investigatory stop must be lawful. Arizona v. Johnson , 555 U.S. 323, 326, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). This condition is satisfied when an officer "reasonably suspects that the person apprehended is committing or has committed a criminal offense." Id . Second, to proceed from a stop to a frisk, the officer "must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous." Id . at 327, 129 S.Ct. 781 ; United States v. Brown, 188 F.3d 860, 864 (7th Cir. 1999) ("must also be able to point to specific and articulable facts indicating that the individual may be armed and present a risk of harm to the officer or to others."). Officers must have reasonable suspicion as to each person frisked. Huff v. Reichert , 744 F.3d 999, 1009 (7th Cir. 2014). An officer need not be absolutely certain that the individual he is about to frisk is armed; the issue is whether a reasonably prudent man under the circumstances would be warranted in the belief that his safety or that of others was in danger. Terry, 392 U.S. at 28, 88 S.Ct. 1868.

The government argues that "there was undoubtedly reasonable suspicion of criminal activity" and that "police had concerns that [Mr. Clevenger and Mr. Hartsell] might be armed when they came back onto the casino gaming floor." ECF 67 at 11, 12. The court disagrees with the government that there was reasonable suspicion of Mr. Hartsell's involvement in criminal activity for the same reasons the court found that law enforcement lacked probable cause to arrest Mr. Hartsell. Again, law enforcement only knew that an unidentified man was an acquaintance of Mr. Clevenger but could not tie him to the counterfeit bills through more than a propinquity to Mr. Clevenger. See Ybarra, 444 U.S. at 91, 100 S.Ct. 338. Whether law enforcement might have reasonably suspected the two men to be armed and dangerous, see United States v. Shoals, 478 F.3d 850, 853 (7th Cir. 2007), it did not have the requisite articulable facts to reasonably suspect that Mr. Hartsell was engaged in criminal activity.

In addition, law enforcement exceeded the scope of an investigatory stop and the fruits from the search of Mr. Hartsell must be excluded. While an individual may be placed in handcuffs during an investigatory stop, see United States v. Bullock, 632 F.3d 1004, 1016 (7th Cir. 2011), law enforcement may only conduct "a carefully limited search of the outer clothing of such persons in an attempt to discover weapons [that] might be used to assault him." Terry, 392 U.S. at 30, 88 S.Ct. 1868. This protective search must be strictly "limited to that which is necessary for the discovery of weapons [that] might be used to harm the officer or others nearby." Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (quoting Terry , 392 U.S. at 26, 88 S.Ct. 1868 ); see also Michigan v. Long , 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) ; Ybarra , 444 U.S. at 93-94, 100 S.Ct. 338.

Law enforcement officers may seize contraband detected during the lawful execution of a Terry search. Dickerson, 508 U.S. at 373, 113 S.Ct. 2130. "If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context." Id. Whereas, "[i]f the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed." Id. ; see also Gentry v. Sevier , 597 F.3d 838, 848 (7th Cir. 2010) ("[E]ven if the officer who searched [the suspect] had a basis to conduct a Terry stop and a pat down, the officer engaged in an unconstitutional seizure when he retrieved [items] from [the suspect's] pocket and did not immediately return [them] to [him]."). "While Terry may authorize seizures of personal effects incident to a lawful seizure of the person, nothing in the Terry line of cases authorizes the police to seize personal property, such as luggage, independent of the seizure of the person." United States v. Place, 462 U.S. 696, 716, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

Furthermore, under Terry, law enforcement officers violate the Fourth Amendment when they thrust their hands into a person's pockets with "no attempt at an initial limited exploration for arms." Sibron v. New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Other courts have refused to expand Terry to allow immediate intrusions into a person's pockets and thereafter emptying them. See United States v. Johnson, 885 F.3d 1313, 1323 (11th Cir. 2018) ; United States v. Miles, 247 F.3d 1009, 1014 (9th Cir. 2001) ; United States v. Lindsey, No. IP 03-121-CR-1 H/F, 2003 WL 23220735 at 5-6, 2003 U.S. Dist. LEXIS 24223 at 13-14 (S.D. Ind. Dec. 19, 2003). That makes ever more sense given that a law enforcement officer cannot even continue to manipulate something detected during a pat down, Dickerson , 508 U.S. at 378, 113 S.Ct. 2130, much less proceed immediately to the pockets before a pat down even occurs.

Here, law enforcement exceeded the scope of a Terry stop by immediately intruding into Mr. Hartsell's pockets and seizing his cigarettes (from which methamphetamine was later found) and keys, and after Mr. Hartsell refused to provide consent to search his person. This was not an investigative search for protection. Terry, 392 U.S. at 28, 88 S.Ct. 1868. Indeed, Sergeant Schaaf did not search those areas that, based on objective experience, most likely would be sites for weapons, including the small of the back or front waistline of the torso area.

To the extent the government argues that law enforcement needed only reasonable suspicion to conduct a search in this case, the court cannot agree based on the circumstances in total here. Under the Fourth Amendment, because this search lacked reasonable suspicion and went "beyond what [was] necessary to determine if the suspect [was] armed, it [was] no longer valid under Terry and its fruits will be suppressed." Dickerson , 508 U.S. at 373, 113 S.Ct. 2130.

Law enforcement was not conducting an investigatory stop, but instead searching for incriminating evidence at the time of an arrest. The court is satisfied based on the testimony and the video evidence that Mr. Hartsell was indeed seized, arrested, and subjected to a search incident to arrest, see, e.g., Chesternut , 486 U.S. at 575, 108 S.Ct. 1975 ; United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ; United States v. Clements , 522 F.3d 790, 794 (7th Cir. 2008) ; United States v. Adebayo , 985 F.2d 1333, 1338 (7th Cir. 1993), so law enforcement needed probable cause for its searches of his person and vehicle. Without probable cause, the motion to suppress must be granted under the Fourth Amendment.

C. The Inevitable Discovery Doctrine Does Not Apply Here.

The government defends its seizure of the firearms from Mr. Hartsell's car by claiming they would have been discovered inevitably through a legal warrant. This doctrine would only save the firearms from exclusion and not any other evidence law enforcement may have illegally obtained, including Mr. Hartsell's statements during interrogation, physical evidence found on his person, and data procured from his cellphone. The government recognizes this limitation in argument.

The inevitable discovery exception to the exclusion of illegally obtained evidence "permits the introduction of evidence that eventually would have been located had there been no error." United States v. Jones, 72 F.3d 1324, 1330 (7th Cir. 1995). If the government can prove by a preponderance of the evidence that officers ultimately would have discovered the challenged evidence, the evidence remains admissible. Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) ; United States v. Stotler, 591 F.3d 935, 940 (7th Cir. 2010). The government must show that officers would have obtained an independent legal justification for conducting a search that would have led to the discovery of the evidence, and that officers would have conducted a lawful search absent the challenged conduct. United States v. Pelletier, 700 F.3d 1109, 1116 (7th Cir. 2012) ; United States v. Marrocco, 578 F.3d 627, 637-38 (7th Cir. 2009).

The "inevitable discovery rule is not an exception to be invoked casually." United States v. Gravens, 129 F.3d 974, 979–80 (7th Cir. 1997). The rule applies "where investigating officers undoubtedly would have followed routine, established steps resulting in the issuance of a warrant." Marrocco , 578 F.3d at 639. The government "is not required to show that investigators in fact obtained or sought a warrant in order to prove that they inevitably would have done so." Id . at n.21. Rather, the government need only show that "[i]t would be unreasonable to conclude that, after discovering all of [the] information, the officers would have failed to seek a warrant." Id . at 640.

Significantly, what makes a discovery "inevitable" is not necessarily probable cause alone, "but probable cause plus a chain of events that would have led to a warrant (or another justification) independent of the search." United States v. Brown , 64 F.3d 1083, 1085 (7th Cir. 1995) (emphasis added). In other words, the fact that law enforcement has a warrant does not make discovery inevitable. Id. The government must show that law enforcement would have discovered the evidence even without the unlawful activity through an independent series of events. United States v. Cotnam , 88 F.3d 487, 495-96 (7th Cir. 1996). To excuse the failure to obtain a warrant, the government must show "that a warrant would certainly, and not merely probably, have been issued had it been applied for." United States v. Tejada , 524 F.3d 809, 813 (7th Cir. 2008). The government has not made the requisite showing here. The only inevitable result in this case is that, but for the illegal arrest of Mr. Hartsell, he would have been permitted to leave the property in his vehicle. The court cannot say on this record that law enforcement would inevitably—promptly and before his departure from the casino—have procured Mr. Hartsell's name, criminal history, or other evidence, and then based on probable cause a search warrant, when it had not done so already up to that point and ultimately did not obtain criminal background information until after 4:15 p.m. (almost two hours later). Ex. D; Tr. 75. The only inevitable result is that Mr. Hartsell would have driven off the property; and all else is speculative on this record.

The court inquired at the hearing whether, despite Mr. Hartsell being permitted to leave, law enforcement could have detained or impounded Mr. Hartsell's PT Cruiser and thus lend some inevitability to the firearm's discovery. If law enforcement knew that Mr. Clevenger unlawfully possessed the firearm at the time (a crime to which he has now pleaded guilty), the PT Cruiser would contain evidence of a crime for which a search warrant might be procured. However, the record is also devoid of evidence on whether law enforcement knew at the time that Mr. Clevenger was prohibited from possessing a firearm, so the prospect of detaining the PT Cruiser to obtain a warrant based on Mr. Clevenger's criminal history appears a non-starter. See also United States v. Duguay , 93 F.3d 346, 352 (7th Cir. 1996) (impoundment is reasonable only if it is supported by probable cause or undertaken in furtherance of "public safety" or "community caretaking functions").

At the time, Mr. Clevenger was arrested for having an outstanding warrant. The presence of a firearm alone—as viewed credibly by Officer Jordan—does not create probable cause of a crime in Indiana given that a firearm may be carried in public with a proper license. Ind. Code § 35-47-2-1(a). The mere possibility of unlawful possession is not sufficient to establish reasonable suspicion, much less probable cause of a crime. See United States v. Watson , 900 F.3d 892, 895 (7th Cir. 2018).

The court appreciates the difficult circumstances in which law enforcement was required to make quick decisions. Time was short. Law enforcement officers are not expected to be constitutional scholars, or to act as legal technicians with the luxury of time and study in deliberating and reviewing their every action as judges do. See, e.g., United States v. Packer, 15 F.3d 654, 659 (7th Cir. 1994) ; United States v. Reed , 349 F.3d 457, 462 (7th Cir. 2003). Often law enforcement officers are faced with tense, difficult, and ever-evolving circumstances where split-second judgments must be made, doing so as they must as reasonable and prudent persons based on the experience of everyday life. See Gerstein , 420 U.S. at 121, 95 S.Ct. 854. The court must assess their actions accordingly, not with perfect 20/20 hindsight. United States v. Richmond , 924 F.3d 404, 417 (7th Cir. 2019).

To be sure, law enforcement in this case encountered a short turnaround from the time of its initial investigation and the return of the two men to the casino. The court needn't delve into the subjective thinking of law enforcement to know whether the time limitations prevented an investigation into the PT Cruiser owner's name and his criminal history (given their possession of plate information), or whether law enforcement was primarily focused on the admirable desire to protect the soft target that was the casino and the safety of its patrons given its observation of a firearm in the parking lot. Therein lies the balance between law enforcement's understandable concern for the safety of citizens and the right of citizens to exercise their constitutional rights without having officers arrest them when they seemingly do. The fact remains that law enforcement believed it important to act quickly based objectively on an unidentified man's association with a firearm or his association with another individual suspected of a crime. Sometimes what may seem admirable on its face is nonetheless unconstitutional at its core. The Fourth Amendment calls this one of those cases.

CONCLUSION

The Fourth Amendment permits only reasonable searches and seizures. In this case, the seizure and search of Mr. Hartsell was not reasonable. Accordingly, the court GRANTS the motion to suppress evidence (ECF 60), including any statements made incident to or following Charles Hartsell's arrest and any property seized from his person, cellphone, or vehicle.

SO ORDERED.