REPORT and RECOMMENDATION
JOHN E. SIMKO, District Judge.
Pending is Defendant's Motion to Suppress Evidence (Doc. 22). A hearing was held on Wednesday, December 4, 2013. Defendant was personally present and represented by his attorney of record, Assistant Federal Public Defender Jason Tupman. The Government was represented by Assistant United States Attorney Jennifer Mammenga. One witness testified at the hearing. Two exhibits were received into evidence. Both parties have submitted briefs and oral argument was heard at the conclusion of the hearing. Based on a careful consideration of all the evidence, and counsel's written and oral arguments, the Court respectfully makes the following:
It is respectfully recommended that Defendant's Motion to Suppress be DENIED.
Defendant is charged in an Indictment with being a Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). The pending Motion was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Judge Schreier's Standing Order dated March 18, 2010.
Miner County Deputy Sheriff Mike Clary
Deputy Sheriff Clary (Clary) was alone on patrol duty just before 1:00 a.m. on December 11, 2012. On that date, the weather was cold, snowy and slippery. Deputy Clary observed Mr. Banks (Banks) run a stop sign and "spin out" in an intersection in Howard, South Dakota. Clary knew Banks and knew he was a member of the community, that Banks worked in Howard, and that he'd not had any previous law enforcement-related encounters with Banks. Howard, South Dakota is not a high crime area.
Banks' vehicle came to rest directly in front of Clary's patrol car. The snow had not been cleaned off Banks' vehicle or windshield. Clary activated his emergency lights, approached and asked Banks to exit the vehicle. As Clary approached Banks' vehicle, Clary noticed Banks had his hands in the air. Clary thought this was extremely peculiar behavior. Clary had been a Deputy Sheriff for seven years and had never had anyone put their hands in the air after being stopped for a traffic stop. When Clary got close enough, the smell of alcohol was emanating from Banks' vehicle and Clary could see there was a young (approximately three or four years old) boy in the back seat.
Clary asked Banks to exit the vehicle. Banks complied. Banks was wearing a down winter coat and what appeared to be lounge or pajama pants. Clary asked Banks if Banks possessed anything that could "poke, stab or hurt" Clary in any way. Banks said "no." Clary conducted a pat down search and found an object that turned out to be a gun in the front right pocket of Banks' winter down coat. Clary explained he decided to conduct the pat down because he thought Banks behavior of placing his hand in the air after being stopped for a traffic stop was "weird" and because he was going to be placing Banks in the patrol car with him.
Clary did not notice anything protruding from Banks' coat before the pat down. Clary asked Banks what the object was and Banks said he did not know. After Clary located the gun, he asked Banks if Banks did not understand the earlier question. Banks said the gun could not have hurt Clary because it was not loaded. Clary asked Banks, along with his young son, to come sit in the patrol car. After a while, Clary transported the child home. Clary then administered field sobriety tests, which Banks passed. Clary asked Banks to get into the back of the patrol car while Clary searched Banks' truck for insurance documents. Banks was compliant with all of Clary's requests during the entire encounter. Clary eventually arrested Banks for a possession of a concealed weapon, a stop sign violation, and for side-swiping a parked vehicle.
Burden of ...