ORDER GRANTING MOTION TO SUPPRESS
KAREN E. SCHREIER, District Judge.
NATURE AND PROCEDURE OF THE CASE
Defendant, Geoffrey Banks, is charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Banks moves to suppress all evidence obtained as a result of a warrantless pat-down search that occurred on December 11, 2012, following a traffic stop. The motion was referred to a United States magistrate judge for a report and recommendation.
On December 4, 2013, an evidentiary hearing was held before the magistrate judge. Miner County Deputy Sheriff Mike Clary was the only witness who testified during the hearing. Two exhibits were received into evidence. Based upon the testimony and exhibits received at the hearing, the magistrate judge issued a report and recommendation recommending denial of the motion to suppress because prior to performing the pat-down search, Deputy Clary had a reasonable belief that his safety or the safety of others was in danger. Banks objects to the report and recommendation. For the following reasons, the court rejects the report and recommendation of the magistrate judge and grants Banks's motion to suppress.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the court should make a de novo review "of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made." See also Thomas v. Arn, 474 U.S. 140 (1985). The court has conducted a de novo review.
The pertinent facts are as follows:
Deputy Clary was alone on patrol duty around 1 a.m. on December 11, 2012, in Howard, South Dakota. The weather was cold and snowy, causing the roads to be slippery. As Deputy Clary approached an intersection, he witnessed a vehicle slide through a stop sign, attempt to make a turn, and spin out, coming to rest directly in front of Deputy Clary's patrol car. Deputy Clary immediately activated his emergency lights and shortly thereafter approached the vehicle. As he approached the vehicle, Deputy Clary noticed the driver had his hands in the air, which Deputy Clary described as "weird." Docket 34 at 5, 24.
Upon making contact with the driver, Deputy Clary learned the identification of the driver was Geoffrey Banks. He also noticed there was a young child in the vehicle, who was later identified as Banks's three-year old son. Deputy Clary had met Banks about five months earlier and knew that Banks lived and worked in the Howard community. Deputy Clary had no prior law-related encounters with Banks, had no knowledge of Banks's criminal history, and had no suspicions that Banks was involved in drug activity.
Deputy Clary asked Banks for his insurance, license, and registration. He then asked Banks to step out of the vehicle. Banks was compliant at all times. As Banks exited the vehicle, Deputy Clary observed Banks wearing a winter down coat and pajama pants. Deputy Clary did not notice any type of bulge coming from Banks's clothing.
Once Banks was out of the vehicle, Deputy Clary immediately performed a pat-down search for weapons. In performing the search, he felt what he believed to be and what was a handgun, namely an unloaded.38 caliber revolver. Deputy Clary eventually arrested Banks for possession of a concealed weapon, a stop sign violation, and for side-swiping a parked vehicle.
Banks's possession of the firearm is the basis for the current ...