United States District Court, D. Montana, Billings Division
P. WATTERS, UNITED STATES DISTRICT JUDGE.
Scott Matthew Thum is charged with Possession of a Stolen
Firearm. (Doc. 1). He has moved to suppress the shotgun found
when law enforcement stopped his car. (Doc. 27). Having
considered the papers submitted by the parties, and finding
oral argument unnecessary, the Court DENIES Thum's
22, 2016, a traffic control supervisor monitoring traffic in
a construction zone along Highway U.S. 7 saw a maroon car
driving erratically. He contacted 911 and provided the
car's license plate number, 52-2321 A. The 911 operator
advised Fallon County Sheriffs Dispatch and dispatch alerted
all units on patrol.
Nic Eisele was leaving the Fallon County Sheriffs Office. As
he walked out the front door, he saw a car matching the 911
operator's description. He got into his patrol car and
started following the car. Not long after, he saw Officer
Ryan James coming towards the car from the other direction,
so he told James to turn and pursue the car. James made a
U-turn and turned on his siren and overhead lights. The
driver of the maroon car did not pull over. Eventually the
car became stuck behind other vehicles waiting at a stop
sign. Officer Luke Hauke drove directly at the car with his
overhead lights engaged and Eisele swung his patrol car to
the left of James' patrol car. The officers blocked the
car's escape and conducted a felony stop. The driver was
Defendant Scott Thum.
got out of his patrol car and repeatedly ordered Thum to put
up his hands but Thum would not comply. Eisele approached
Thum and continued to tell him to show his hands. Thum slowly
raised his hands, holding a cell phone in his right hand. As
Eisele got closer to the car, he saw a shotgun sitting in the
front passenger seat of the car, next to Thum. Eisele
unsnapped his service weapon and told Eisele to put his hands
up high. Eisele advised James and Hauke that a shotgun was on
the passenger seat. James reached in the window and seized
the shotgun. Eisele then asked Thum to get out of the car.
Hauke detained and handcuffed Thum.
told Thum why he had stopped him. Thum had bloodshot eyes and
a dazed expression. He asked if he could have his wallet out
of the car. As Eisele went to the car to get Thum's
wallet, he saw Thum's wallet on the console, three 16 oz.
unopened Bud Lights on the passenger seat, and 2-3 20 gauge
shotgun shells and rifle brass in the cup holder and on the
floorboards. When Eisele ran Thum's information, he
discovered that Thum was a registered violent offender on the
Montana Sexual Violent Offender Registry. Thum was placed
under arrest and taken to Fallon County Jail.
called ATF Task Force Officer Steven Feuerstein and told him
that Thum was on the violent offender registry and was caught
in possession of a shotgun. During his conversation with
Feuerstein, Eisele examined the gun and discovered a 20 gauge
round loaded in the chamber. Feuerstein's investigation
determined that the shotgun had been stolen from Thum's
former work supervisor.
argues that the officers lacked probable cause to seize the
shotgun because (1) Thum did not consent, (2) the officers
did not have any reason to believe Thum intended to use the
shotgun, and (3) the officers did not know the shotgun was
stolen when they seized it, so the seizure was unlawful. Thum
Thum was lawfully arrested
Fourth Amendment to the Constitution protects persons against
unreasonable searches and seizures. U.S. Const, amend. IV.
Evidence derived from a search or seizure must comport with
this Forth Amendment protection to be admissible. Terry
v. Ohio, 392 U.S. 1, 12-13 (1968). An automobile stop is
a seizure under the Fourth Amendment and therefore must be
reasonable under the circumstances. See Whren v. United
States, 517 U.S. 806, 810 (1996). Here, in light of his
dangerous driving in a construction zone, and attempting to
avoid Eisele, Thum does not dispute that officers had
reasonable suspicion to stop him. (See Doc. 28 at 11).
a warrant based on probable cause is required before law
enforcement may conduct a valid search or seizure. U.S.
Const, amend. IV; Terry, 392 U.S. at 20. However,
the Fourth Amendment permits a warrantless search incident to
a lawful arrest. See United States v. Robinson, 414
U.S. 218, 224 (1973).
arrest under the Fourth Amendment occurs when an officer
intentionally applies physical restraint of a suspect,
California v. Hodari D.,499 U.S. 621, 624, (1991),
or initiates a show of authority to which a reasonable
innocent person would feel compelled to submit, and to which
the suspect does submit for reasons that are solely related
to the official show of authority, Florida v.
Bostick,501 U.S. 429, 436-37 (1991). Here, it is
undisputed that three patrol cars blocked Thum's ability
to drive away, and Eisele demanded that Thum show his hands.
It is further ...