United States v. Davis

185 F. Supp. 2d 942, 2002 U.S. Dist. LEXIS 6336, 2002 WL 122737
CourtDistrict Court, S.D. Illinois
DecidedJanuary 8, 2002
DocketNo. 01-CR-30135-MJR
StatusPublished
Cited by1 cases

This text of 185 F. Supp. 2d 942 (United States v. Davis) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Davis, 185 F. Supp. 2d 942, 2002 U.S. Dist. LEXIS 6336, 2002 WL 122737 (S.D. Ill. 2002).

Opinion

MEMORANDUM and ORDER

REAGAN, District Judge.

I. Introduction

A September 20, 2001 indictment charges Derrick D. Davis with possessing cocaine base, with the intent to distribute it, in violation of 21 U.S.C § 841. Davis’ trial was set to commence on December 18, 2001. On November 27, 2001, he moved to suppress various statements and physical evidence. That motion was fully briefed by December 7, 2001, and the Court set an evidentiary hearing for January 7, 2002. Witnesses and exhibits were presented on January 7th, and testimony continued on January 8th. The Court then took the motion under advisement. Having carefully reviewed the evidence and heard counsel’s arguments, the Court now rules on the various suppression issues.

II. Relevant Facts

On August 29, 2001, Special Agent Brandon G. Whittaker of the Metropolitan Enforcement Group of Southwestern Illinois (“MEGSI”) was working in Washington Park, Illinois. MEGSI agents, along with Deputy United States Marshals, Illinois State Police Troopers and other law enforcement officers had planned an enforcement action or raid on a local tavern called Niecey’s Place, which was known to be [944]*944frequented by narcotics offenders. Around 2:00 a.m., Agent Whittaker arrived at Niecey’s in a white oversized van, accompanied by Canine Officer Fred Scholl, his dog “Dax,” and members of the Illinois State Police Tactical Response Team (“TRT”). They parked near the intersection of 49th Street and Bunkum, almost directly in front of the tavern.

Exiting the white van, Agent Whittaker observed an older model burgundy Delta 88 pull up to the stop sign at the intersection of 49th and Bunkum. Scholl and Dax immediately pursued a suspect from the tavern. Whittaker followed Scholl, assisted in handcuffing the suspect, and then went back toward the intersection to ascertain that the TRT officers were safe and in place around the perimeter of Nie-cey’s. Immediately Whittaker noticed that the burgundy vehicle was still sitting at the stop sign on 49th Street. The Delta 88 had been stopped in that position for 1 to 2 minutes at that point.

According to Whittaker, although there were squad cars and unmarked police vehicles in and around the tavern, sufficient room remained for the Delta 88 to pull through the intersection and away from the scene of the raid. At this time, officers other than Whittaker were undertaking pursuit of a second suspect outside the tavern, and a number of tavern patrons were being questioned in the adjacent parking lot. Agent Whittaker was assigned to “front perimeter security” on the Niecey’s raid. He was concerned about the occupants of the burgundy vehicle and wanted to make sure that they posed no threat to the officers on the scene. Agent Whittaker also believed it was odd that the burgundy car had not attempted to drive away from the scene.

Agent Whittaker approached the burgundy car to investigate. The car contained two occupants. The driver was not wearing a seat belt. Whittaker asked the occupants: “What’s going on, guys?” Whittaker immediately detected an odor of alcohol on the driver. He observed that the driver’s eyes were “glazed over” and “thoroughly bloodshot.” Based on his training and experience (including 80 to 100 arrests for driving under the influence), Whittaker believed the driver was under the influence.

Whittaker asked the driver if he had been drinking. The driver nodded slowly in the affirmative. Whittaker noted that the driver’s reactions were slow, his speech was slurred, and his breath smelled of alcohol. Whittaker asked the driver to step from the car. The driver did so, exhibiting a lack of balance and leaning on the car to steady himself as he got to his feet. Whittaker directed the driver to lie on the ground, for safety concerns, and then spoke to the passenger. As he was speaking to the passenger and watching him lie down on the ground, Whittaker heard a noise that sounded like the “tinkling” of keys hitting the ground. He turned and observed the driver’s arm outstretched. Whittaker asked the driver if he had just thrown the car keys. The driver responded: “I didn’t do nothing, man.”

Whittaker ran the registration of the burgundy Delta 88. It was registered to an individual named Andre Ward. Whit-taker asked the driver if he owned the car. The driver said yes. Whittaker asked the driver if his name was “Ward.” The driver said no. The driver had identification in his back pocket revealing him to be Derrick Davis. When Whittaker ran Davis’ name through the Illinois State Police computer system, Whittaker learned that Davis did not have a valid driver’s license. Having seen Davis drive the burgundy car up to the stop sign, Whittaker arrested and handcuffed Davis. Davis remained on the ground handcuffed, and Whittaker [945]*945turned his attention to the passenger of the Delta 88, Michael Devine.

Devine has an older sister who had a child with Derrick Davis’ brother. Devine is a photographer and takes pictures at local clubs (including Niecey’s). On the night in question, Devine rode with Davis to Niecey’s. Devine drank two cans of Budweiser beer and bought two beers for Davis at Niecey’s in the roughly 1.5 hours they were in the tavern. Devine did not have a valid driver’s license at that time.

During the time that Whittaker was interacting with Devine, United States Deputy Marshal John Andrews, who has been with the Marshals Service for 19 years, arrived on the scene at Niecey’s. Andrews was driven to the scene by Deputy Marshal Larry Kelly. As they drove down 49th Street toward the raid, Andrews saw an individual running from police officers around the back of the tavern. Andrews jumped out of the car and briefly assisted the other officers in apprehending this individual. That took between 3 and 10 minutes. Andrews then walked toward the front of the building, up to the intersection where Agent Whittaker was involved with the occupants of the Delta 88. Whittaker asked Deputy Andrews to watch Derrick Davis. At that time, Davis was on the ground, handcuffed.

Andrews attempted to “visit” and make polite conversation with Davis. Andrews noticed that Davis was unable to hold his head up to talk, had slurred speech, and could not carry on a conversation. Andrews believed that Davis was under the influence of alcohol.

Andrews clearly saw the position of the stopped Delta 88, the position of the TRT’s white van, and the position of 5 or more police cars on the East side of Bunkum Road. Andrews recalled that the white van was parked almost directly in front of Nie-cey’s, close to the stop sign, but it was not blocking the intersection of 49th and Bunkum.

As the Court notes below, conflicting testimony was presented by the witnesses at the suppression hearing on the issue of (a) how the Delta 88 came to be stopped at the intersection, and (b) whether the driver of the vehicle (Defendant Davis) could have pulled through the intersection or was, in effect, blocked by the police vehicles involved in the Niecey’s raid. Having observed the verbal and non-verbal behavior of the witnesses, and having carefully assessed their demeanor while testifying, the Court finds fully credible Deputy Marshal Andrews’ testimony that the Delta 88, while stopped at the stop sign on 49th Street, could have pulled through the intersection, turned on Bunkum, and driven away.

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Bluebook (online)
185 F. Supp. 2d 942, 2002 U.S. Dist. LEXIS 6336, 2002 WL 122737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-davis-ilsd-2002.