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United States v. Thum

United States District Court, D. Montana, Billings Division

September 11, 2017




         Defendant 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 motion.

         I. Background

         On July 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.

         Undersheriff 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.

         Eisele 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.

         Eisele 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.

         Eisele 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.

         II. Discussion

         Thum 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 is wrong.

         A. Thum was lawfully arrested

         The 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).

         Generally, 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).

         An 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 ...

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