ORDER & OPINION
[Resolving Doc. 17]
JAMES S. GWIN, District Judge.
A grand jury indicted Defendant John Nagy for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) and possessing a stolen firearm in violation of 18 U.S.C. § 922(j). Nagy moves to suppress evidence obtained during a search of him and his arrest on February 17, 2013, including statements that he made to officers and a firearm retrieved from his person. For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Nagy's motion. The Court grants Nagy's motion to exclude his statement to the effect that he got the gun from a car in Springfield Township. The Court denies Nagy's motion to suppress other evidence and statements obtained during the stop, including Nagy's statement that he had a gun and the gun itself.
On February 17, 2013, around 3:20am, Akron police officer Dan Metzger responded to a call from a caller who reported that someone had been tampering with his car. Metzger arrived at the caller's home, spoke with the caller. The caller identified footprints in the fresh snow leading away from the car and up the road. He indicated he had followed the fresh footprints until the police arrived upon the scene. Metzger radioed for backup, and he, along with two other officers, followed the footprints down the streets of the residential neighborhood for approximately an hour.
The footprints approached approximately five to twelve other vehicles, going through yards and driveways. Eventually, Metzger followed the footprints up an embankment where he saw a 2009 Ford Escape parked in a driveway and a man dressed in black with a large black backpack leaning into the car through the driver's door. Nagy stopped his police cruiser and the person stood up and walked around to the front of the Escape. He was holding a cup of change, apparently taken from the vehicle's cup holder. Metzger later identified this person as the Defendant, Jay Nagy. Metzger testified that although Nagy had several layers of clothing on, he noticed a bulge in the left side of his coat in the waist area.
Metzger asked Nagy if he could speak with him, and Nagy took two or three steps back, but did not flee. Metzger then instructed Nagy to put his hands on his head and handcuffed him. Metzger also asked Nagy if the Escape was his car. Nagy answered that it was not. Metzger walked Nagy, still handcuffed, over to his police cruiser. Before patting Nagy down, Metzger asked Nagy if Nagy had anything illegal that might poke or stab the officer. Before Metzger could complete the question, Nagy said that he had a gun on him. Metzger then Mirandized Nagy and removed the firearm from Nagy's pocket. Metzger asked Nagy if he wanted to say anything further and Nagy declined.
Metzger and the other officers detained Nagy. During this detention, one of the other officers said that it would be nice to know where the gun came from so that it could be returned to its owner. In response, Nagy said that he had taken the gun from a car and that he could show the officers where he had gotten it.
Nagy now moves to suppress this evidence. On May 23, 2013, the Court held a hearing in this matter and received testimony from Officer Metzger. No other witnesses testified.
The Fourth Amendment guarantees that
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Evidence obtained in violation of the Fourth Amendment cannot be used against a defendant in a criminal proceeding.
Nonetheless, "police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be a foot, ' even if the officer lacks probable cause." "Reasonable suspicion is gauged from the totality of the circumstances."[ ...