Opinion
Case No. 2:05-cr-122.
September 12, 2006
ORDER
Defendant has filed a motion to suppress the search of his person which occurred on December 15, 2004. The court held an evidentiary hearing on September 12, 2006. Based upon the testimony presented at the hearing, defendant's motion to suppress is denied.
Where a police officer reasonably suspects that the person with whom he is dealing may be armed and presently dangerous, he is entitled, for the protection of himself and others in the area, to conduct a carefully limited search of the outer clothing of the person in an attempt to discover weapons. Terry v. Ohio, 392 U.S. 1, 30 (1968); United States v. Hudson, 405 F.3d 425, 431 (6th Cir. 2005). Reasonable suspicion is based on the totality of the circumstances. United States v. Arvizu, 534 U.S. 266, 273-74 (2002); Northrop v. Trippett, 265 F.3d 372, 381 (6th Cir. 2001).
Defendant argues that this case involved an anonymous tip which did not provide a sufficient basis for reasonable suspicion, citing Florida v. J.L., 529 U.S. 266, 270 (2000). While it is correct that the officers were dispatched to the Lombaro's Night Club in response to 911 calls in which the caller did not identify himself, the officers were informed upon arriving at the bar that Larry Walker, the bouncer working security at the bar, had made the calls. Officer Terry Stuart testified that he recognized Walker's voice on the tapes of the 911 calls. In addition, Mr. Walker told the officers that he had called 911 to make the report.
The testimony further revealed that Mr. Walker informed Officer Stuart that there was a man in the bar who had a large automatic firearm. Mr. Walker also stated that he had seen the gun. Mr. Walker described the man as a male Black with light skin, wearing a Michigan jacket, and that he was seated at the bar with his back to the door. He spoke personally with the officers, and the officers were in a position to judge his credibility. In fact, Officer Stuart had spoken with Mr. Walker earlier that evening because he had responded on another dispatch to the bar involving three men with firearms and marijuana.
A known informant's reputation can be assessed, and he can be held responsible if his allegations turn out to be fabricated.J.L., 529 U.S. at 270; United States v. Quarles, 330 F.3d 650, 655 (4th Cir. 2003). Officer Stuart did not know Mr. Walker, but had observed him working security at the bar by checking identification and patting down patrons on other occasions. Mr. Walker was in a position of responsibility at the bar. The officers could reasonably conclude that Mr. Walker was interested in the safety of the bar patrons, and that he would not want to antagonize a bar patron by making a false report. Mr. Walker told the officers that the basis for his information was his own observation of the gun in defendant's possession. The officers were able to verify the description provided by Mr. Walker through their own observations. The bar was not crowded that night, and the defendant was the only person who matched the description given by Mr. Walker, thus reducing the risk that the wrong person would be investigated.
The officers approached defendant and calmly asked him to accompany them so that they could investigate whether he had a gun. The defendant offered no resistence. They escorted defendant by the arms a short distance to the hallway of the bar, which was separated from the main room of the bar by a door. Officer Stuart patted defendant's outer clothing and felt the butt of the gun in the area of defendant's back waistband. The firearm, a large Intratec nine-millimeter automatic, was removed from defendant's waistband, and defendant was then handcuffed and placed under arrest. Based upon the information provided by Mr. Walker to the officers at the scene and the officers' own verification of the fact that defendant was the only bar patron who matched the description given by Mr. Walker, the officers had a reasonable suspicion that the defendant was armed with a gun.
The officers also acted reasonably in the manner in which they conducted the investigatory stop and the patdown. The officers testified that they had been dispatched to the bar on previous occasions, such as responding to disorderly conduct reports, and that the bar was not police friendly. Officer Stuart personally had problems with the crowd at the bar on another occasion. The officers were justified in escorting defendant a short distance to the hallway so that he would not pose a threat to the patrons in the bar, and so the officers could react to any sudden movements by the defendant without creating a dangerous situation to the patrons and to themselves.
When the patdown of defendant's clothing revealed a large gun, the officers were justified in seizing the weapon and placing defendant under arrest. See United States v. Faulks, 47 Fed.Appx. 633 (3rd Cir. 2002) (upholding Terry patdown of defendant in bar where individual at the scene talked to officers in person and reported that there was a man with a gun at the bar, and defendant matched the description given); United States v. Berrios, 45 Fed.Appx. 242 (4th Cir. 2002) (upholding Terry patdown of defendant following officers' discussion with person at the scene who reported that defendant was wanted by authorities and known to be armed at all times); United States v. Gorin, 564 F.2d 159, 160-61 (4th Cir. 1977) (upholdingTerry patdown of defendant where bar owner called police to report that a man in the bar had a gun, and police spoke personally at the scene with the owner, who confirmed the description he had given on the phone).
The court finds that the Terry patdown of the defendant was based on reasonable suspicion, and that the ensuing search and seizure of the firearm was valid. The defendant's motion to suppress is denied.