United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS (ECF
COHN UNITED STATES DISTRICT JUDGE.
a criminal case. Defendant David Hardeman is charged with
violating 18 U.S.C. § 922(g)(1), Felon in Possession of
a Firearm. Before the Court is Hardeman's motion to
suppress (ECF No. 13). The motion was the subject of two
hearings. After the hearings the Court requested supplemental
briefing on the issue of whether one of the officers on the
scene (Officer Cherry) was credible in his testimony that he
observed a bulge on Hardeman when he exited the vehicle (ECF
Nos. 23, 24). The matter is now ready for decision.
reasons that follow, Hardeman's motion to suppress is
was approached by police in the late hours of the evening as
he was sitting in the passenger seat of a vehicle parked more
than 12 inches from the curb and within 15 feet of a fire
hydrant (ECF No. 18). Cherry approached the passenger side of
the vehicle. He observed Hardeman with an open container of
alcohol in his hand. Cherry instructed Hardeman to exit the
vehicle and to put his hands up (Ex. B, Cherry Body Camera).
Hardeman exited and put his hands up, but his arms were not
fully extended above his head-his elbows remained at waist
level. Id. Cherry observed a bulge on Hardeman's
left-side chest area when he exited the vehicle (ECF No. 18).
Cherry then moved Hardeman's elbows up so both his hands
were a few inches above his head. Cherry immediately placed
his hands on Hardman's left chest area and asked,
“anything you got on you I should know about
boss?” Hardeman responded with what sounded like,
“yeah.” Cherry said, “what you got?”
Id. Hardeman didn't answer. At that point,
Cherry was already touching the bulge over Hardeman's
jacket. Cherry asked, “anything else?” and
Hardeman said no. Id.
then asked Hardeman to turn around and keep his hands up,
handcuffed him behind his back, and turned him back around so
he was facing Cherry. Cherry unzipped Hardeman's jacket
and removed a gun. Id.
vehicle is lawfully detained for a traffic violation,
officers may order the driver and passengers to get out; just
as in a Terry stop, a pat-down is permitted of anyone an
officer reasonably suspects to be armed and dangerous.
Arizona v. Johnson, 555 U.S. 323, 326-27 (2009);
Maryland v. Wilson, 519 U.S. 408, 415 (1997);
United States v. St., 614 F.3d 228, 232 (6th Cir.
2010). Reasonable suspicion must be supported by
“specific and articulable facts.” United
States v. Beauchamp, 659 F.3d 560, 569 (6th Cir. 2011).
a bulge is sufficient to satisfy reasonable suspicion that
Hardeman was armed. See Pennsylvania v. Mimms, 434
U.S. 106, 112 (1977); United States v. Bell, 572
Fed.Appx. 417, 419 (6th Cir. 2014); United States v.
Stennis, 457 Fed.Appx. 494, 499-500 (6th Cir. 2012)
second hearing, Hardeman re-created what his left chest area
would have looked like on the night he was stopped. He put on
a jacket he said he wore and placed the gun in the left
jacket pocket. The Court observed: “[i]t appears that
the pocket has something in it as distinguished from the
other pocket. His right-hand pocket is laying flat. This
pocket, whether you call it a bulge or an extension, I see
it” (ECF No. 22, PageID.125).
argues that “if Cherry saw a bulge that he believed to
have been a firearm, it strains credulity that Cherry would
not have immediately removed the firearm from the chest
area” (ECF No. 24). The Court disagrees. After Cherry
moved Hardeman's elbows up so his hands were raised above
his head, Cherry immediately went for the area where he saw a
bulge. Once he touched Hardeman's left chest area and
felt what he said was the handle of a gu
turned Hardeman around, handcuffed him, and then removed the
gun in a matter of seconds (ECF No. 18; Ex. B). Cherry did
not continue to pat Hardeman down or otherwise ...