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United States v. Gallinger

United States District Court, D. Idaho

January 4, 2017



          B. Lynn Winmill Chief Judge


         The Court has before it Defendant Steven Casey Gallinger's Motion to Suppress (Dkt. 15). The Court held an evidentiary hearing on the motion on December 19, 2016, where it heard testimony from Officers Logan Terry and Joseph Martinez. At the close of the hearing, the Court took the matter under advisement. For the reasons explained below, the Court will grant the motion.


         On October 4, 2015, at approximately 12:55 a.m., Ada County Sheriff's Dispatch received a 911 call. The call operator could hear a scuffling noise in the background and voices of males who seemed to be arguing. The line was busy when the call operator made an initial call-back attempt. However, dispatch was able to trace the call to a location within 19 meters of an address on Amber Street between West Bond and West Cruzen Streets in Boise, Idaho. Dispatch then relayed the call over the radio.

         Boise Police Officer Logan Terry was nearby and responded to the dispatch. He parked his patrol car near the intersection of Amber and Fairview, one block south of the intersection of Amber and Bond. Shortly after exiting his vehicle, Officer Terry observed a male, later identified as defendant Steven Gallinger, appearing to have emerged from the alley behind a business on the corner of Amber and Fairview. Gallinger was wearing a puffy black jacket, black shorts, a black hat, and a bandana. Officer Terry made contact with Gallinger and directed him to sit on the sidewalk. He then began questioning Gallinger, asking for his name and what he was doing. Gallinger indicated his name was “Steven Cox.”

         As Officer Terry was questioning Gallinger, dispatch broadcast that they had received another phone call related to the hangup call. Dispatch indicated that the reporting party had been approached by an individual, described as a white male with a blue bandana and a black coat, who had then walked southbound on Amber. Dispatch further advised that the reporting party had given the male nine dollars to leave.

         Within several minutes of Officer Terry's first contact with Gallinger, Officer Martinez arrived at Officer Terry's location. Officer Martinez, who had previously encountered Gallinger, indicated that “Cox” was not his true surname. Officer Martinez then left to speak to the party who had made the 911 call. That individual told Officer Martinez that a person had approached him in his front yard and asked for money, food, and shelter. The reporting party indicated that the male was fidgeting with a bandana that was partially covering his face, and that the man's demeanor made him uncomfortable.

         Officer Martinez returned to the location where Officer Terry was speaking with Defendant. Officer Martinez testified that he believed that the Defendant may have been contemplating committing a theft or robbery based on the information he had received from the reporting party. Officer Martinez then asked Gallinger if he had any weapons on his person and asked whether he could pat Gallinger down. Gallinger refused to consent to a search of his person.

         Officer Martinez then informed Gallinger that he was under arrest for providing a false identity to police. Officer Martinez instructed the Defendant to stand up and place his hands behind his back. At that point, Gallinger took off running from officers. He was eventually apprehended. The officers found the handgun that is the basis for the instant charge in the path of Gallinger's flight.

         Gallinger was charged with unlawful possession of a firearm. He now seeks to suppress the firearm that is the basis for this charge, on the grounds his initial detention was an unlawful seizure under the Fourth Amendment.


         Gallinger argues that he was unlawfully detained when Officer Terry ordered him to sit on the sidewalk without reasonable suspicion that criminal activity was afoot or that he was linked to the 911 call, and that the firearm must therefore be excluded as the fruit of an illegal seizure. The Government counters by arguing that Officer Terry's initial contact with Gallinger was not a seizure for Fourth Amendment purposes, because Gallinger voluntarily cooperated by remaining at the scene. In the alternative, the Government argues that even if the officer's initial contact with the Defendant was a seizure, it was a permissible Terry stop supported by reasonable suspicion. Finally, the Government argues that even if the seizure was illegal, suppression is not warranted because intervening events broke the causal connection between the alleged illegal seizure and the discovery of the firearm.

         1. Constitutionality of the Terry Stop

         The Fourth Amendment protects the “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const. amend. IV. Searches and seizures conducted without a warrant are per se unreasonable, subject to certain limited and well-defined exceptions. See Minnesota v. Dickerson, 508 U.S. 366, 372 (1993). One such exception is the so-called Terry stop, which allows an officer to briefly detain a person when the officer has reasonable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1 (1968). Reasonable suspicion “exists when an officer is aware of specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion.” United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (emphasis in original).

         “The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978) (citing Simmons v. United States, 390 U.S. 377, 389-390 (1968)). In the case of a warrantless search or seizure, however, the Government bears the burden of proving by a preponderance of the evidence that one of the delineated exceptions to the warrant requirement applies. See United States v. Huguez-Ibarra, 954 F.2d 546, 551 (9th Cir. 1992).

         A. Gallinger Was ...

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