cause and implicating the Fifth Amendment protections of Miranda v. Arizona, 384 U.S. 436 (1966).
The government counters that, rather than instituting a full-fledged arrest, the officers were merely
conducting an investigative Terry stop, which requires only a reasonable suspicion of wrongdoing.
Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Because the officers’ conduct in this case falls short of the
less stringent Terry standard, the facts here do not require the court to resolve this question.

A police officer may briefly detain an individual in an investigative Terry stop if the officer
has a reasonable suspicion that the individual is engaged in criminal activity. Terry, 392 U.S. at21-
22. The Terry standard is satisfied if, at the time of the stop, “specific and articulable facts,” along
with the officer’s reasonable inferences from those facts, reasonably warrant the stop. Jd. at 21-22.
The officer must be able to articulate more than an “inchoate and unparticularized suspicion or
“hunch.” Jd. at 27. Moreover, the reasonableness of a particular stop depends on the extent of the
restraint on the suspect’s rights; a stop is reasonable only if the degree of suspicion is adequate in
light of the degree of the intrusion. United States y. Smith, 3 F.3d 1088, 1095 (7" Cir. 1993). While
the quantum of suspicion required depends on the circumstances of the individual case, as a general
tule, the necessary degree of confidence increases with the degree of the intrusion. United States v.
Chaidez, 919 F.2d 1193, 1198 (7" Cir. 1990).

In evaluating Lee’s motion, therefore, the court must consider the degree of the restraint at
issue. The intrusion in this case was more substantial than in an ordinary Terry stop. The officers
approached Lee with guns drawn, ordered him from the vehicle and handcuffed him before
conducting the pat-down search. Assuming that the officers’ conduct did not constitute a custodial
arrest, handcuffing a suspect at gunpoint is, nevertheless, at the “outer edge” of an investigative stop.

See Chaidez, 919 F.2d at 1198; United States v. Serna-Barreto, 842 F.2d 965, 968 (7 Cir. 1988).

4.


officers in each of the cases cited by the government, Officers Zuniga and Sarabia did not actually
witness any furtive gestures by Lee before conducting the stop. Neither officer observed Lee crouch,
pop up, duck or otherwise behave in an unusual manner. Rather, the officers simply saw Lee “just
sitting there” in Carradine’s car and assumed that the furtive gestures had previously occurred.”
Without any supporting observations by the arresting officers, their assumption that Lee had been
hiding is precisely the sort of “hunch” that cannot play a role in a Terry analysis.

The officers’ inference that Lee was hiding cannot support the stop here for the additional
reason that, unlike the cases cited by the government, the officers did not infer this furtive behavior
until after they arrested Lee. While both officers testified that they were surprised to see Lee during
their second pass of Carradine’s vehicle, Officer Sarabia testified that it was not until after the arrest
that he and Officer Zuniga recounted the events leading up to the stop and concluded that Lee must
have been hiding when they first passed Carradine’s car. (1/8/04 Sarabia Tr. 126-27.) Officer
Sarabia testified that he did not hypothesize that Lee had been hiding until after the arrest. (Id.) The
question whether the officers here had reasonable suspicion to detain Lee hinges on the information
available to, and the reasonable inferences made by, the officers at the time of the stop. The officers’
post-hoc assumptions regarding Lee’s conduct are not relevant to that inquiry.

The court concludes that Officers Zuniga and Sarabia did not have sufficient reasonable
suspicion to support a Terry stop in this case, especially in light of the intrusive nature of the stop.
Because the stop from its inception violated Lee’s Fourth Amendment rights, the evidence recovered

by the officers as a direct result of the stop and search, including the weapon retrieved from Lee’s

? The court finds credible Lashonda Carradine’s testimony that Lee had not been hiding.
Carradine testified that, when the officers passed her vehicle the second time, Lee had just
retumed to her car after taking her son behind a nearby tree to urinate.

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American male — later identified as Lee — seated on the passenger side.

Upon seeing Lee, Officer Sarabia parked the patrol car in front of Carradine’s vehicle to
prevent her from leaving the lot. The officers exited their patrol car and approached Carradine’s
vehicle with their guns drawn. Zuniga and Sarabia ordered Lee and Carradine to exit the vehicle and
to place their hands on the hood. Officer Sarabia testified that, after Lee complied with the officers’
orders, Officer Zuniga twice asked Lee a question along the lines of “What have you got?” or
“Where’s it at?” Both officers testified that Lee’s behavior at that point seemed “evasive.” When
asked to elaborate, Officer Sarabia testified that Lee did not answer Officer Zuniga’s questions.
Officer Zuniga provided no specifics. Officer Zuniga then handcuffed Lee and asked Lee whether
he had a weapon in his possession. The government contends that, after he was handcuffed, Lee
admitted that he had a gun in his front jacket pocket. In response to Lee’s alleged admission, Officer
Zuniga conducted a pat-down search of Lee and retrieved a loaded handgun from Lee’s jacket.
Officer Zuniga placed Lee under arrest and read him his Miranda rights. The government alleges
that, shortly after the arrest, Lee told Officer Zuniga that Carradine “didn’t know I had it when I got
in. I use it for protection.”

ANALYSIS

Lee argues that his detention and the subsequent pat-down search of his person were
unconstitutional and that, therefore, his arrest, his alleged incriminating statements to police during
the arrest, and the handgun retrieved by the arresting officers during the search must all be
suppressed. The parties disagree regarding the proper standard for evaluating whether the officers’
stop and search of Lee passes constitutional muster. Lee argues that, because he was handcuffed at

gunpoint prior to the search, the officers’ conduct constituted a custodial arrest, requiring probable

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Consequently, the level of suspicion required to justify the search here is greater than for less
invasive investigative methods. See Chaidez, 919 F.2d at 1198.

The government argues that Officers Zuniga and Sarabia had reasonable suspicion sufficient
to justify a Terry stop because: (1) Lee matched the description in the anonymous tip, (2) the stop
occurred in a particularly high crime area and (3) the officers reasonably inferred that Lee was hiding
because they did not see him when they first viewed the red sedan but observed him moments later
on their second pass. The court concludes that, when viewed together under the totality of the
circumstances, those three factors do not justify the stop and search of Lee.

The anonymous tip in this case ofa “male black sitting in a red sedan with a gun in his hand,”
in and of itself, does not satisfy the reasonable suspicion standard. An anonymous tip, without
further indicia of reliability, is not sufficient to justify an investigative Terry stop. Florida v. J.L.,
529 U.S. 266, 271-74 (2000). The fact that Lee matched the bare-bones physical description in the
tip is not enough. “An anonymous tip must be reliable in its assertion of illegality, not just in its
tendency to identify a determinate person, if it is to provide reasonable suspicion for a Terry
investigatory stop.” J.L., 529 U.S. at 272. As in /.L., the tip in this case described the suspect but
provided no other information that would allow the police to substantiate the tip’s claim of illegal
conduct. The tip, therefore, does not alone provide sufficient cause for Lee’s detention.

The additional fact that the stop occurred in a high crime area, while an important factor in
the court’s analysis, does not tip the balance in favor of reasonable suspicion. The government
presented convincing evidence that the vicinity around 1836 S. Karlov Street is a relatively high
crime area. While a person’s presence in a high crime area is not enough to support a reasonable,

particularized suspicion of wrongdoing, it is “among the relevant contextual considerations in a

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jacket and the alleged incriminating statements made by Lee to the officers during the stop, must be
suppressed.
CONCLUSION
Lee’s motion to suppress his arrest and to suppress the evidence retrieved on the night of that

arrest is granted.

ENTERED:

[ross GOTTSCHALL
Inited States District Judge

DATE: January 16, 2004


‘Minute Order Form (06/97)

United States District Court, Northern District of Mlinois

Name of Assigned Judge Joan B. Gottschall Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 03 CR 748 DATE 1/16/2004
CASE United States of America vs. Michael Lee
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) ia Brief in support of motion due

(3) o Answer brief to motion due. . Reply to answer brief due

(4) Oo Ruling/Hearing on set for at.

(5) |] Status hearing is set for 1/21/04 at 9:30AM.

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at.

(7) a Trial[set for/re-set for] on at

(8) o [Bench/Jury trial] [Hearing] held/continued toa

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) = CLocal Rule 41.1 OOFRCP41(a)(1) OO FRCP41(a)(2).

ao) off [Other docket entry} Defendant Michael Lee’s Motion to Suppress Arrest and Evidence [20-1] is
granted.

(il) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

An Las

in
Copy to judge/magistrate judge. Luncs a
courtroom eee
deputy's ve
initials —
Dateftime receiyedin' *
central Cletk’s Office mailing deputy initials



Terry analysis.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). However, the government does not
argue for, and the court does not find, a high crime area exception to the United States Supreme
Court’s ruling in /.L. The high crime area in this case is a large residential complex where dozens
of citizens go about their daily lives. Those residents are entitled to substantially the same
constitutional protections as the defendants in /.L. Consistent with /.L., in a Terry analysis, the
weight given to an anonymous tip must hinge on its reliability, not on the character of the
neighborhood the suspect calls home. To rule otherwise would allow police officers to stop anyone
living in a high crime area based solely on unsubstantiated information provided from unknown
sources.

The determining factor in this case, therefore, is whether — in light of the tip and the nature
of the neighborhood — the search was justified by the officers’ inference that Lee hid from them
during their search of the parking lot. In support of its argument, the government has cited several
cases holding that evasive behavior in a high crime area can justify an investigative Terry stop.
(Gov’t Resp. at 4-6, citing Wardlow, 528 U.S. at 124; United States v. Woodrum, 202 F.3d 1,7 (10"
Cir. 2000); United States v. Soto-Cervantes, 138 F.3d 1319, 1323 (10" Cir. 1998); United States v.
Sims, 296 F.3d 284, 286-87 (4 Cir. 2002).)

However, the inference that Lee was hiding has no weight in the Terry analysis in this case
because that inference was not reasonably derived from the facts available to the officers at the time
of the stop. On its face, the inference does not seem reasonable: the government has offered no
plausible explanation for why Lee would hide from the officers during their first pass of Carradine’s
vehicle only to sit up, watch the officers turn back towards Carradine’s vehicle and then remain

seated in full view of the officers during their second pass. More importantly, unlike the arresting

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA )
)
Plaintiff, ) Case No. 03-CR-748
Vv. )
)
MICHAEL LEE ) Judge Joan B. Gottschall
)
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Defendant Michael Lee is charged in a one-count indictment with unlawful possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Lee argues that his arrest on the
weapons charge is unconstitutional and has moved to suppress certain incriminating statements he
allegedly made to police officers on the night of his arrest as well as a firearm recovered by police
officers during an allegedly unconstitutional pat-down search of Lee’s person. On January 8 and 9,
2004, the court conducted a hearing on Lee’s motion. For the reasons stated below, Lee’s motion
to suppress is granted.

BACKGROUND

On the evening of March 22, 2003, the Chicago Police Department received an anonymous
tip that a “male black” was sitting in a red sedan with a gun in his hand in a parking lot at 1836 S.
Karlov Street. The tip provided no further description of the suspect and no other information

regarding the circumstances of the offense. At approximately 7:15 PM, Officers Ronald Zuniga and


Frank Sarabia, who were on patrol in the area, were dispatched to 1836 S. Karlov to respond.!

The building at 1836 S. Karlov Street is part of a residential complex known in the
community as “the Square.” The complex is composed of a series of apartment buildings which
form a square enclosing a central parking lot. On the east side of the Square, a driveway connects
the parking lot with Karlov Street. The driveway is the only route for cars to enter and exit the lot.
At the hearing on the motion to suppress, the government contended that the vicinity of 1836 S.
Karlovy is known to police officers as a particularly high crime area. Officers Sarabia and Zuniga both
testified that they have conducted numerous arrests in the area for violent offenses, weapons
possession, narcotics trafficking and gang activity.

Officers Zuniga and Sarabia reached the Square within minutes of receiving the anonymous
tip and entered the parking lot through the driveway on Karlov street. The officers testified that they
immediately noticed a red sedan parked at the south end of the parking lot. The officers drove
slowly past the red sedan and directed the patrol car’s searchlight at the occupants. Zuniga and
Sarabia both testified that, during this pass, they could see a woman — later identified as Lashonda
Carradine -- seated on the driver’s side of the red sedan and a child in a safety seat in the rear seat.
The officers did not see anyone else in Carradine’s vehicle. The officers consequently shifted their
focus to a maroon sedan on the other side of the lot, approximately 30 to 45 feet from Carradine’s
car. The officers drove to the north side of the lot, determined that the maroon sedan was empty,
executed a three-point turn and proceeded back towards Carradine’s car. During a second pass of

Carradine’s vehicle, in addition to seeing Carradine and the child, the officers observed an African-

' For purposes of this ruling, the court accepts the sequence of events as testified to by
Officers Zuniga and Sarabia.

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