The opinion of the court was delivered by: Sean F. Cox United States District Judge
ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION
Defendant Larry Umphryes ("Defendant") is charged in a single-count indictment with being a felon in possession of a firearm (Doc. No. 1). The case is currently before the Court for consideration of Defendant's Objections to Report and Recommendation on Defendant's Motion to Suppress (Doc. No. 21). For the reasons that follow, the Court shall ACCEPT the Magistrate Judge's recommendation that the Court DENY Defendant's Motion to Suppress.
On December 9, 2009, Defendant filed a Motion to Suppress Evidence, claiming that the police violated his Fourth Amendment rights (Doc. No. 10). This Court entered an order referring the motion to Magistrate Judge Hluchaniuk (Doc. No. 11).
On January 28, 2010, Magistrate Judge Hluchaniuk held a hearing at which time both parties were permitted to call witnesses and present evidence. The parties also filed post-hearing briefs (Doc. Nos. 18 & 19).
On March 15, 2008, at approximately 10:00 p.m., Defendant was riding in the front-passenger seat of a 2000 Pontiac. (Tr. at 7:7). Michigan State Police Troopers Swain and Stokes observed the Pontiac turn without using a signal, and they initiated a traffic stop. (Id. at 6:24-7:1).
Trooper Swain approached the driver's side of the Pontiac while Trooper Stokes approached the passenger side. (Id. at 9:21-25). Trooper Stokes asked Defendant for his name, but Defendant gave a false name, Timothy Johnson. (Id. at 10:7-9; 32:16-17). Trooper Stokes also observed that the Defendant was "extremely nervous." (Id. at 10:13).
At that time, Trooper Stokes noticed that Defendant was holding his arm tightly against his side, which Trooper Stokes noted was typical for someone who is hiding contraband or a weapon. (Id. at 10:10-13). Moreover, Defendant kept his arm pressed against his side when he lit a cigar, leaning forward to light it rather than bringing it up to his mouth. (Id. at 11:1-6). Trooper Stokes described this as a highly unusual motion. (Id. at 12:2).
While Trooper Stokes spoke with Defendant, Trooper Swain arrested the driver for operating a motor vehicle without a license. (Id. at 9:19). After the driver's arrest, the troopers decided to search the Pontiac. (Id. at 14:1-2). Trooper Stokes asked Defendant to step out of the car, and asked him if he had any contraband or weapons on him. (Id. at 13:15-24). Defendant exited the Pontiac and replied that he did not have anything illegal on him. (Id. at 13:18).
Trooper Stokes then placed Defendant's hands on the top of the Pontiac and informed Defendant that he was going to conduct a pat-down search. (Id. at 14:12-13; 15:1-2). He immediately frisked the side of Defendant's body and discovered a handgun in Defendant's coat pocket, which he removed without Defendant's knowledge. (Id. at 14:19-22).
Trooper Stokes then gestured for Trooper Swain to come over, and gave him the handgun. (Id. at 15:13-19). As Trooper Stokes began to handcuff Defendant, Defendant elbowed him in the face and ran away. (Id. at 15:25-16:3). Trooper Stokes unsuccessfully attempted to stop Defendant by deploying his taser, but Defendant was able to run behind a nearby house. (Id. at ...