LEGAL UPDATES FROM CHRISTOPER BOYLE, ESQ.

alt

 

January 27, 2017 Legal Update

February 3, 2017 Legal Update

February 10, 2017 Legal Update

February 17, 2017 Legal Update

February 24, 2017 Legal Update

March 3, 2017 Legal Update

March 10, 2017 Legal Update - See Spring 2017 Bulletin Magazine for this Legal Update

March 17, 2017 Legal Update

March 24, 2017 Legal Update


 

January 27, 2017

STUMP THE CHUMP

Chris:
This may be a “stump the chump” question.
We were approached by our ambulance DC which generated this question/concern. A short time ago PD and our EMS provider were dispatched to a possible opioid OD. Upon arrival the patient was conscious and alert. He had been given a dose of Narcan by his girlfriend prior to police and EMS arrival and the patient refused medical transport to the hospital.
Per their EMS protocol, EMS contacted their medical command at the hospital and the Dr. ordered them to transport the patient even though he refused. Under the statewide guidelines for BLS transport, Medical Command can order the ambulance to transport and he may order the EMS practitioner to contact police to facilitate transport against the patients will. The Dr. did so on this job ordering the EMS guys to use the police to facilitate transport. The Cops refused to assist the ambulance in forcibly transporting the patient, which I believe was the right decision.
My question and concern here is forcibly taking custody of the refusing patient without a warrant, court order or exigent circumstances. We bounced this around for quite a while without coming to an adequate solution.
My concern is a 1983 claim of a unwarranted seizure by the police since we are the governmental entity involved. Can you offer any insight on this topic?? I’ve attached a copy of the BLS statewide regulations for your review.
Thanks
Mighty Mouse
Mighty:
Excellent question MM. Thank you. I had a look at the BLS guidelines which are, of course, not binding on the police. I agree that officers did the right thing in refusing to forcibly transport the patient UNLESS the medical command who authorized the transport was willing to involuntarily commit the patient as a danger to himself and incapable of making the decision for himself as a result. (Sure, kidnappings can be fun but, as you said, they can also land us in federal court) If the doctor or EMS are going to 302 (involuntarily commit under PA law for you folks outside the Commonwealth) then we can use REASONABLE force to assist. Common sense requires us to try and get Opie the Opioid Abuser to see the light, because, when that Narcan wears off, he is going to feel rode hard, and hung up wet. As you know, when that happens, you'll be getting another call…
Chris "The Chump" Boyle

COMMENT: This week's case comes to us from the state of boardwalks and traffic circles the lovely, New Jersey. It presents an interesting case of what to do when called to a civil dispute and, while everything turns out well for our heroes in the end, perhaps I may be so bold as to offer an alternative suggestion to arrest when one bozo says the other bozo owes him money – stay out of it. Disputes like the one you are about to read (and mechanics' liens as well) present an opportunity for us to "the right thing" which can often land up being "the unconstitutional thing" when it comes to a private property dispute. There will almost always be one side that is more sympathetic than the other, and we will want to help them out. When it comes to property disputes however, best thing is to refer everyone to the civil courts…
Batiz v. Brown, 2017 U.S. App. LEXIS 1308 (3rd Circuit January 26, 2017)(not precedential)
Luis Batiz and Cordelia Challenger appeal the District Court's order dismissing their claims against members of the New Jersey State Police. We will affirm.
 
On February 23, 2010, Luis Batiz called the New Jersey State Police to aid in a repossession dispute with storage company 1-800-PACKRAT. Pack Rat employees were attempting to repossess a storage pod used by Batiz because he was allegedly several months behind on payments. Before the state troopers arrived, Batiz took Pack Rat's lifting bar-a device needed to lift the pod onto the Pack Rat truck-and his wife Cordelia Challenger [Coolest Name in a while. The Chump] blocked the Pack Rat truck with her car.
Two state troopers arrived at the Batiz residence, which they described as a "chaotic scene." App. 87. State Trooper D.K. Detullio attempted to defuse the situation by permitting Batiz "to remove his personal belongings from the storage pod and allow[ing] Pack Rat to leave with it." App. 7. Detullio also instructed Batiz to return the lifting bar. Although Batiz complied with these instructions, he was displeased and felt that Detullio did not have the authority to interfere in a civil dispute.
While on the scene, Detullio asked Batiz and a Pack Rat employee for identification, which Detullio described as "common practice." App 107. Batiz refused, saying: "I don't see the purpose of giving you that information." Supp. App. 108. After several more requests, Batiz became "very, very paranoid" and said, "all I'm going to give you is my name." Supp. App. 110. When Detullio insisted on obtaining Batiz's identifying information, Batiz declared: "I need you to leave and I need you to leave right now." Supp. App. 112. Detullio then placed Batiz under arrest. At the police station, Batiz continued to refuse to provide any identification and would not allow police to photograph or fingerprint him.
While Batiz was in custody, Challenger drove to the precinct and was asked to identify Batiz. She responded: "Well if he's there, you have to get information from him. I'm not giving it to you." Supp. App. 283. She was then handcuffed to a bench and released one hour later.
That same day, Detullio filed a criminal complaint charging Batiz with four offenses under New Jersey state law: theft, obstructing administration of law, hindering apprehension, and disorderly conduct. Detullio obtained a warrant for Batiz's arrest from a New Jersey municipal court judge and Batiz was committed to county jail on that warrant. For her role in the incident, Challenger was charged with hindering apprehension.
On August 4, 2010, Batiz and Challenger were tried in New Jersey municipal court. Batiz was convicted of theft, obstruction, and disorderly conduct, but he and Challenger were acquitted of the hindering apprehension charges. The New Jersey Superior Court, Law Division, granted a trial de novo and convicted Batiz solely on the theft charge. But the Appellate Division of the New Jersey Superior Court reversed that conviction, reasoning that Batiz was entitled to temporarily seize the lifting bar to prevent Pack Rat from taking his property. Having been fully acquitted of all criminal charges, Batiz and Challenger filed this civil lawsuit against State Troopers Detullio and M.D. Brown pursuant to 42 U.S.C.
§ 1983. Batiz and Challenger asserted claims of false arrest, false imprisonment, malicious prosecution, abuse of process, and conspiracy to deprive civil and constitutional rights. On summary judgment, the District Court dismissed all but Batiz's malicious prosecution claims. After trial on those claims, the District Court granted Detullio's motion for a directed verdict. Batiz and Challenger filed this appeal.
We exercise plenary review over both the District Court's summary judgment, Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 167 (3d Cir. 2001), and its directed verdict, Macleary v. Hines, 817 F.2d 1081, 1083 (3d Cir. 1987).
A
Challenger alleges that the District Court erred in granting summary judgment on her false arrest claim. She claims there was no probable cause to detain her on hindering charges because her refusal to identify Batiz falls outside the plain language of the statute. Under New Jersey law, a person commits the crime of hindering apprehension if: "with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another, . . . [she s]uppresses, by way of concealment or destruction, any evidence of the crime . . . which might aid in the discovery or apprehension of such person or in the lodging of a charge against him." N.J. Stat. Ann. § 2C:29-3(a), (a)(3).
1The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367. We have jurisdiction under 28 U.S.C. § 1291.
The District Court entered summary judgment for two independent reasons. First, it explained that a "reasonable person would have determined that [Challenger] was refusing to provide [the requested] evidence of her husband's identity, while knowing her husband was being investigated, for purposes of hindering the troopers' investigation of him." App. 22. Whether or not this holding is correct, we readily agree with the District Court's second holding that Challenger's suit was barred by qualified immunity.
"[Q]ualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Bayer v. Monroe Cty. Children & Youth Servs., 577 F.3d 186, 191 (3d Cir. 2009) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The doctrine "applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact," Pearson, 555 U.S. at 231 (internal quotation marks omitted), and protects "all but the plainly incompetent or those who knowingly violate the law," Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164, 168 (3d Cir. 2016) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).
Detullio is protected by qualified immunity. Challenger concedes that there is no caselaw considering whether "refusing to provide the name and pedigree information of another is a violation of [the] statute." App. 22. This concession is fatal to Challenger's claim because the Supreme Court has explained that qualified immunity applies unless "'existing precedent . . . placed the statutory or constitutional question' confronted by the official 'beyond debate.'" Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (quoting al-Kidd, 563 U.S. at 741 (2011)). Challenger argues that she need not cite on-point precedent because "the plain language of the applicable statute provides no basis for charging an individual under the facts at issue." Batiz Br. 14. But even assuming that the plain language does not provide a basis for charging Challenger-meaning that Detullio committed a mistake of law-that reading of the statute is sensible enough that Detullio cannot be said to have been "plainly incompetent" or to have "knowingly violate[d] the law." Mammaro, 814 F.3d at 168.
B
Batiz next challenges the District Court's summary judgment on his malicious prosecution claim related to the theft charge. Batiz claims a jury could have found that Detullio lacked probable cause to believe he took the lifting bar "with purpose to deprive." N.J. Stat. Ann. 2C:20-3(a). As relevant here, "deprive" is defined as "to withhold or cause to be withheld property of another permanently . . . or with purpose to restore only upon payment of reward or other compensation." N.J. Stat. Ann. 2C:20-1.
We agree with the District Court that Detullio had probable cause to believe Batiz took the bar with purpose to deprive. The undisputed facts establish that: Pack Rat employees (not Batiz) informed Detullio that the lifting bar had been taken; Detullio was aware Batiz took the lifting bar in an effort to stop Pack Rat's repossession of the storage pod; and Batiz did not return the lifting bar until Detullio ordered him to do so. The District Court correctly explained that it was reasonable for Detullio "to believe that, even if Batiz intended to return the lifting bar upon Pack Rat's agreement to depart without repossessing his storage pod, that this was done 'with purpose to restore' the lifting bar to Pack Rat 'only upon payment of reward or other compensation,' compensation, in that case, being fulfilled by Pack Rat foregoing its perceived right to repossess the storage pod." App. 18-19.
Instead of disputing these conclusions, Batiz argues that the District Court "ignored those facts that called into question whether probable cause existed." Batiz Br. 17. Essentially, Batiz argues that the District Court overlooked evidence that he took the lifting bar only to prevent Pack Rat from taking what he considered his own property. But under New Jersey law, this "claim of right" argument is an affirmative defense. See State v. Ippolito, 671 A.2d 165, 168 (N.J. Super. Ct. App. Div. 1996) (citing N.J. Stat. Ann. 2C:20-2(c)(2)). And we have held that if an affirmative defense is "not clear cut" and "essentially an issue of fact," that defense "should not concern an arresting officer" when considering probable cause. Holman v. City of York, 564 F.3d 225, 231 (3d Cir. 2009); see also Sands v. McCormick, 502 F.3d 263, 269 (3d Cir. 2007) (police officers need not consider possible statute of limitations defenses when determining probable cause). Here, Officer Detullio could not have reasonably been expected to resolve this complicated argument and its attendant factual predicates at the scene. See Holman, 564 F.3d at 231. Therefore, Detullio had probable cause to arrest Batiz, which dooms this malicious prosecution claim.
C
Batiz also appeals the District Court's directed verdict on his malicious prosecution claim related to the hindering and disorderly conduct charges. To state a claim for malicious prosecution, a plaintiff must show, among other things, that "the defendant initiated the proceeding without probable cause" and that "the plaintiff suffered deprivation of liberty." Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007). When the arrest is made on multiple charges, "probable cause on one charge does not foreclose a malicious prosecution cause of action against a defendant for having brought criminal charges involving different elements." Id. at 83 (citations omitted). In such cases, however, the plaintiff must show that "the additional charges for which there might not have been probable cause . . . resulted in additional restrictions on his liberty beyond those attributable to the prosecution on the [] charges for which there was probable cause." Id. at 86.
Batiz was charged with theft, obstruction, hindering, and disorderly conduct. He concedes that probable cause existed as to the obstruction charge, and we explained herein why probable cause existed on the theft charge. Therefore, Batiz must show that the hindering and disorderly conduct charges-for which the District Court found a factual dispute with respect to probable cause-caused an additional deprivation of liberty.
Batiz alleges that absent these purportedly improper charges, the municipal court judge would have charged him on a summons rather than a warrant-meaning that he would not have been held in jail after being charged. He cites to the New Jersey Court Rules, which provide that a summons, rather than a warrant, should be issued unless the defendant "cannot be satisfactorily identified" or "there is reason to believe that the defendant will not appear in response to a summons." N.J. Ct. R. 7:2-2(b)(5), (6). Applying these rules to his case, Batiz claims that Detullio's exaggerations caused the municipal court judge to falsely believe that Batiz could not be satisfactorily identified or would not appear on a summons.
Batiz cannot carry his burden to prove this claim. As the District Court noted, "[t]here was no evidence presented of any kind" to substantiate Batiz's claim that the municipal court judge would have issued a summons without the allegedly infirm charges. App. 192. Batiz did not offer any "expert testimony [] concerning the practices and procedures in municipal court." App. 192. And any direct evidence from the municipal court judge was not discoverable. See United States v. Morgan, 313 U.S. 409, 422 (1941) (explaining that judges are not subject to examination at trial). Because any verdict in Batiz's favor would have been based on pure speculation by the jury as to the decision making process of the municipal [*11] judge, the District Court properly granted a directed verdict. See Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 75 (3d Cir. 1996) ("[W]hen the matter remains one of pure speculation or conjecture, . . . it becomes the duty of the court to direct a verdict for the defendant." (citations omitted)).
For the reasons stated, we will affirm the judgment of the District Court.

 

 

February 3, 2017

STUMP THE CHUMP

Yesterday, Sgt. Steven Floyd of the Delaware Department of Corrections gave his life in the service of the citizens of Delaware.  With his last breaths of life, he warned other officers responding to his call for help that the prisoners holding him hostage had set a trap and that they should back off and await reinforcements.  A hero, whose family deserves some thoughts and prayer today.  To all of you who hold the Thin Gray Line – Thank you.

Chump:

Had a situation the other night that arises from time to time, and was hoping you could give me your opinion.  Responded to a meet complainant and was met by a 50-something year old woman who wants to turn in a gun because her father is older, and sick, and has talked about ending it all.  The gun is hers, but she wanted it out of the house.  We took the gun as property for safe keeping, and informed her that our Department policy is that she will need to get a court order if she wants it back.  She comes in like two days later demanding the gun back, claiming I never told her about obtaining the court order.  My question is this – Can we actually require someone to get a court order to get their gun back?  Doesn't that violate their 2nd Amendment rights?

Tony Dorset

 

Tony:

My first reaction was that it sure sounds like a 2nd Amendment violation to me.  Turns out, you did in fact Stump the Chump, as I was, let's not say "wrong," but rather, misinformed.  There is a single case in the Third Circuit which stands for the proposition that a Police Department (or a County for that matter) may require a person to petition the court for return of a weapon.

Long story, short-  requiring a citizen to obtain a court order for the return of property under the circumstances you described is lawful. Must be the policy for everyone, and the Chief or other personnel can't have discretion to require some folks to petition, and others, not.

Long story, long - the case of Welsch v Upper Darby stands for the proposition that a municipality may (doesn't have to, but it may) require a citizen to petition a court for return of their property pursuant to Pa Rule of Criminal Procedure 588.  Yes, I know it is a criminal rule, but this case points out that it applies to anyone who is "aggrieved" by the seizure. 

A couple of notes of caution:

-  The Department's policy allowed the Chief to decide whether someone had to go petition a court or not, and that was found to be UNCONSTITUTIONAL.  Requiring the petition was fine.  Allowing the Chief to override that, was not.

-  This case won't give any protection if we illegally seized the weapon/property in the first place.  This case is limited to a case where the officer received valid consent to seize the weapon.  If we went in to a disturbance house, hypothetically, saw a gun in plain view, and took it (absent domestic violence, suicide threat, etc), then we could still land up in federal court for the initial seizure.

 

Chris "The Chump" Boyle 


 United States v. Bagley, 2017 U.S. App. LEXIS 1596  (3rd Circuit January 30, 3017)

HARDIMAN, Circuit Judge.

William Bagley appeals his judgment of conviction for counterfeiting Federal Reserve notes, claiming that evidence admitted against him was obtained pursuant to a defective search warrant. Because we conclude that the warrant was not defective, we will affirm.

 

I

In May 2013, the United States Secret Service began an investigation into the passing of counterfeit $100 Federal Reserve notes in Pennsylvania. After a confidential informant and two cooperating suspects implicated Bagley in the scheme, Magistrate Judge Eddy issued a search warrant for the apartment he occupied with Sherita Howard. The subsequent search of Howard's apartment turned up evidence of counterfeiting, including counterfeit bus passes and associated printing equipment. Bagley was indicted for counterfeiting and conspiracy to counterfeit and pass fraudulent Federal Reserve notes, in violation of 18 U.S.C. § 371, §§ 471-72.

Prior to trial, Bagley moved to suppress the evidence seized from the apartment, arguing the warrant did not particularly describe the place to be searched. The warrant referenced an "Apt #2" on the "second floor," but the apartment searched was actually on the third floor. Bagley Supp. App. 115; Gov't Supp. App. 44. Accordingly, Bagley contended that his apartment was number 3, not 2. The District Court disagreed and denied the motion to suppress, finding that the warrant described the apartment with sufficient particularity. Alternatively, the Court held that the good faith exception applied to deny suppression of the evidence.

After his motion to suppress was denied, Bagley entered a conditional plea of guilty on the counterfeiting and conspiracy charges, preserving the suppression issue. The District Court sentenced Bagley to 41 months' imprisonment on each charge, to be served concurrently, along with $14,300 in restitution and assessment fees. Bagley timely appealed on the suppression [*3]  issue alone.

 

II

1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

The Fourth Amendment requires that warrants "particularly describ[e] the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Bagley asserts that the warrant did not describe his apartment with sufficient particularity because it misstated the number and floor of his residence. We disagree.

Regarding the residence number, the District Court found that the apartment under investigation was Apartment #2, not #3 as Bagley contends. The District Court's finding was supported by both information on Howard's driver's license and uncontroverted testimony from Special Agent Mark Kernan that there are only two mailboxes outside the relevant address. Bagley provided no contrary evidence, so the District Court's conclusion was not clearly erroneous. See United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).

Regarding the floor, Bagley argues that the phrase "second floor" in the warrant was inaccurate in referencing a third-story apartment. App. 71. But the warrant also refers to the deli in the three-story building as being on the "ground floor," not the first floor. Id. Accordingly, investigating agents could have readily inferred that the second floor corresponded to the third story.2 These circumstances are unlike those found in the cases cited [*4]  by Bagley where the warrant described a residence other than the one searched. See, e.g., United States v. Bershchansky, 958 F. Supp. 2d 354, 381 (E.D.N.Y. 2013) (warrant naming Apartment #2 used to search an Apartment #1), aff'd 788 F.3d 102 (2d Cir. 2015); United States v. Trainor, 979 F. Supp. 933, 935 (D. Mass. 1997) (warrant naming street number 136 used to search number 138).

FOOTNOTES

2 The warrant was also executed by Agent Kernan, who knew from prior surveillance that the relevant apartment was on the top floor. It was therefore unlikely that any ambiguity in the warrant description would have confused officers. See United States v. Clement, 747 F.2d 460, 461 (8th Cir. 1984) (declining to invalidate search based on partial error in warrant's description of residence where officers' familiarity with residence ensured "no probability of a mistaken search").

In addition, we agree with the District Court that even if the warrant were deficient, the good faith exception to the exclusionary rule would apply. "[T]he purpose of the exclusionary rule—to deter police misconduct—[is not] furthered by suppressing evidence . . . 'when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.'" United States v. Tracey, 597 F.3d 140, 150 (3d Cir. 2010) (quoting United States v. Leon, 468 U.S. 897, 919-20, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)). Although we will not apply the good faith exception when a warrant is "so facially deficient that it failed to particularize the place to be searched," Tracey, 597 F.3d at 151, any ambiguity in this warrant does not rise to that level.

We will affirm the District Court's judgment for the reasons stated

COMMENT:  Ruh-Roh Rastro, I have some bad news – There is no such good faith exception under state law.  Also, if you aren't old enough to know what "Ruh-Roh Rastro" means, I am not sure we can continue to be friends. 

As recently as December 16, 2016, the Pennsylvania Supreme Court reiterated that the privacy concerns of the Pennsylvania Constitution are distinguishable from the deterrence based concerns of the US Constitution's 4th Amendment.  (Chump to English translation? – THERE IS NO GOOD FAITH EXCEPTION UNDER PA LAW).  Now, not for nuthin', but know how we could have avoided all of this? - A bit more specificity in describing the property to be searched. That's how.  Still, let’s give credit where it is due, and recognize a nice piece of police work to our federal friends. 

The Chump 

 

 

 

 


February 10, 2017

STUMP THE CHUMP

Chump: Not for nuthin', but why didn't the Markim Summers case make the cut? I thought you would have found it a "remarkable piece of police work" worth writing about. Forget about us back in the hood? Can Philly get a little love?
-Katharine Hepburn

Dearest Katherine – It will likely surprise you that I sometimes get accused of sharing too many Philadelphia cases. Still, I know one of the Philly Solicitors on this case, and he's an Ace (As Gunny Highway said in Heartbreak Ridge: "That doesn't mean we're gonna' be takin' warm showers together 'til the wee hours of the morning…"), so I am happy to cut it down to the facts and the holding as our Stump the Chump/Case of the Week. Please take note of how Officer O'Brien testified about the use of deadly force in his deposition. While he may have come to that on his own, I am betting my friend the Solicitor put the time in, in prepping everyone for their depositions. Nice job all around, Kevin:

Summers v. Ramsey, 2016 U.S. Dist. LEXIS 171177 (E.D.Pa. December 16, 2016)

On June 29, 2013, while high on PCP and naked, Plaintiff Markim Summers jumped onto a police patrol car and used his bare fists to pummel the glass windshield…. Summers struck the windshield twice. He then attempted to strike the windshield a third time. On his third attempt, Officer Thomas O'Brien, then seated in the driver's seat, discharged his firearm. Officer O'Brien fired his gun upwards through the windshield. Two bullets entered Plaintiff's midsection, one to his torso and the other to an arm.

FOOTNOTES

1 PCP is short for phencyclidine, "a controlled substance which causes hallucinations and serious psychological disturbances." See Guilbeau v. W.W. Henry Co., 85 F.3d 1149, 1164 n.41 (5th Cir. 1996) (citing R. Sloane, The Sloane Dorland Annotated Medical Legal Dictionary 585 (1987)). Due to the violent, bizarre, unpredictable behaviors associated with PCP use, PCP-intoxicated persons are at increased risk of inadvertent injury, self-injurious behavior and death. Moreover, there is a significant risk that incidents between a PCP-intoxicated person and police officers will result in injury or death to the police officer due to the unpredictable behavior associated with PCP intoxication. … In the Philadelphia area, PCP is commonly impregnated in a marijuana or tobacco cigarette. (Id.) The cigarette is dipped or immersed into the PCP liquid. This results in the PCP-soaked cigarette which is referred to as "wet." (Id.)

…In an attempt to hold as many Defendants as possible responsible for his injuries, Plaintiff alleged in his Complaint sixteen causes of action. …

III. FACTUAL BACKGROUND

During the early morning hours of July 29, 2013, around 5:14 a.m., while Officer Daniel Levitt was patrolling alone in a marked patrol car, he saw a naked, African American male in a Rite Aid parking lot who was visibly agitated and throwing either a newspaper dispenser or trashcan…. That individual was later identified as Plaintiff. Plaintiff Summers has described himself as being six foot-one inch tall and weighing approximately one hundred and seventy pounds, with the ability to lift one hundred pounds or so. … Officer Levitt called for backup, requesting a taser trained officer, based on his previous experiences with people appearing to be under the influence of PCP.…

While Plaintiff was on the ground, Officer Levitt remained in his car and made a call over his police radio that a male had stopped a bus… Eventually, Plaintiff stood up and walked towards the northeast corner of 22nd Street and Westmoreland Streets. … Officer Levitt testified that Plaintiff then picked up two rocks and threw them onto the ground. …Next, Plaintiff walked east on Westmoreland Street…

Once Plaintiff began walking Officer Levitt attempted to block him from moving further because he feared that Plaintiff would hurt himself or others. To secure the road, Officer Levitt passed Plaintiff on the left and made a wide, right U-turn down 21st Street… At this point, Officer Thomas O'Brien arrived at the scene and proceeded down Westmoreland Street. …
Next, Plaintiff walked towards Officer O'Brien and Officer Levitt's cars. … Plaintiff was sweating profusely and gesturing up towards the sky. He appeared to be speaking to someone. … He also made rapid, jerking-type movements and appeared to be in a drug-induced state. …Officer O'Brien described Plaintiff as appearing to be in his own world. …Based on his experience, Officer O'Brien believed Plaintiff was on PCP…

Subsequently, Plaintiff approached Officer Levitt's car and in a "gingerly slow movement," tried to reach into the driver side window "like a baby." … Officer Levitt then immediately placed his car in reverse and rolled up his window. … In response, Plaintiff turned his body toward Officer O'Brien's passenger window. At this point, his prior childish nature suddenly turned aggressive. … Officer Williams observed Plaintiff yelling something inaudible moments before he made contact with Officer O'Brien's vehicle. …Thereafter, Plaintiff jumped onto Officer O'Brien's patrol car. (Id.)

Next Plaintiff, using his bare fist, punched the windshield of Officer O'Brien's car. The force shook the entire car. … The first punch was close to Officer O'Brien's driver side window and damaged the windshield. … At this time, Officer O'Brien said that he reached toward his steering column to put his car into reverse. … Before Officer O'Brien could do so, Plaintiff threw a second punch at the windshield causing it to explode glass dust into Officer O'Brien's face. (Id.) The second punch made a hole in the windshield. … At this point, Officer O'Brien had glass powder on his face and a man standing over him, threatening his safety. …Plaintiff did not listen to any of the officer's requests to stop punching the patrol car.

Thereafter, Plaintiff readied his swing a third time. … Officer O'Brien, fearing for his life and safety, removed his gun from his holster and fired two shots upward aiming in between Plaintiff's belly button and collar bone area. … Officer O'Brien said that he fired the shots because he was focused on his "survival. [Plaintiff was] coming in [his] windshield and [Plaintiff was] not going to have a chance to do to [him] what [Plaintiff] did to [his] windshield." …Officer O'Brien, in his deposition, described his thoughts before the shooting as follows:

Q: Intention wise, when you are shooting what is the intention?

A: To stop the threat.

Q: Shoot to kill or shoot to get him off the car or shoot for some other reason?

A: I'm shooting to stop the threat. That is where we're instructed to shoot, in the center mass. My intention is not to kill anybody.

* * *

Q: You told me that there was not at that point an option to back up. Am I correct at that point?

A: I don't know what you mean by that statement. I mean, you're talking about a hair of a millisecond here.

Q: I am. You're right. Any thoughts --

A: I made a conscious decision at that moment based upon my level of fear.

Q: So this is going to sound like a dumb question, but I guess I have to ask. What was the level of fear? What are you thinking?

A: I'm thinking that the damage that he did to that windshield, I mean, we're talking fear of my life at this point...

Next, one officer called for rescue. Medic 4B arrived and put Plaintiff on a stretcher to transport him to Temple University Hospital. .. At the hospital, he was treated for two gunshot wounds—one to his right chest and one that grazed his elbow. Officer Williams followed the vehicle to the hospital because Plaintiff was now considered to be in custody. (Id.)…

VI. CONCLUSION

For all of the foregoing reasons, the Defendants' Motion for Summary Judgment (Doc. No. 32) will be granted in its entirety.

☻♪☺♥♫□☻♪☺♥♫□


February 17, 2017 

STUMP THE CHUMP

Chump: Is a canine sniff a search? I am getting conflicting answers, so I am checking with the source. – Christie Brinkley

Christie – It actually depends on who you ask. Since you asked me, however, I will give you the answer under Pennsylvania law – Yes, a canine sniff is a search pursuant to Article 1 Section 8 of the Pennsylvania Constitution. As it usually comes up in the context of a vehicle stop, let me go further and say that there is case law that a sniff of the outside of the vehicle requires reasonable suspicion, while a sniff of the inside requires probable cause. Keep in mind, that the dog indicating the presence of drugs when sniffing the outside, can be used as part of your probable cause to conduct a sniff on the inside. But be careful not to put the cart before the horse. Your report, which documents your actions, should say that the search of the outside occurred before the search of the inside, along with everything else you knew prior to setting the canine to the inside. Woof.

Chris "The Chump" Boyle

☻♪☺♥♫□☻♪☺♥♫□

COMMENT: Sometimes, one can find true beauty in the simplest of things – a baby's laugh, a puppy's kiss, a rainbow after the rain. Or, in the ten pounds of stupid in a five pound bag we find in this turd named Byrd! Too cruel? You'll get over it, I promise. This is yet another case where the video results in summary judgment. Notice that there is no dispute as to how long the car stop in this case took. Without the video, Byrd could tell the Court that he was harassed for two hours by the cops, who didn't even call it in to radio until he had already been held for an hour and a half. Without the video, the Court would be forced to take his word for it. Notice also, that Byrd's demise is built, brick by brick, by the two officers who remain nameless throughout the court's opinion (that ain't right). They started with an improper lane change, and work their way up to a body armor and heroin pinch. That's what should make it into our reports – the whole story. Nicely done Nameless Officers. I shall call you Officer Chump and the Other Officer Chump – Guardians of the Weak and Protectors of the Constitution. Or, Bill and Ted…

 

United States v. Byrd, 2017 U.S. App. LEXIS 2406 (3rd Circuit February 10, 2017)

Terrence Byrd entered a conditional guilty plea to charges of possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and possessing body armor as a prohibited person in violation of 18 U.S.C. § 931(a)(1). He reserved the right to appeal several suppression rulings. He now appeals, arguing: (1) the initial traffic stop was pre-textual and the District Court clearly erred in accepting the officer's testimony describing a traffic violation; (2) officers impermissibly extended the stop; and (3) the District Court erred by holding Byrd lacked standing to challenge the vehicle search. We affirm the judgment of the District Court.

I.

Byrd was driving a rental car on a four-lane divided highway near Harrisburg, Pennsylvania. A state police officer parked in the median recognized Byrd's car as a rental and noticed the driver's seat was reclined to an unusual degree such that the driver was not clearly visible. The officer followed Byrd and eventually pulled Byrd over. The officer claimed he observed Byrd violate a state law requiring drivers to limit use of the left-hand lane to passing maneuvers. 75 Pa. Con. Stat. § 3313(d)(1)(i)—(ii).1 According to the officer, Byrd passed two trucks with room to move into the right lane between the trucks, but he failed to do so, remaining instead in the left lane for the extended passing procedure.

FOOTNOTES

1 The code section at issue provides:
(d) Driving in right lane.—

(1) Except as provided in paragraph (2) and unless otherwise posted, upon all limited access highways having two or more lanes for traffic moving in the same direction, all vehicles shall be driven in the right-hand lanes when available for traffic except when any of the following conditions exist:
(i) When overtaking and passing another vehicle proceeding in the same direction.
(ii) When traveling at a speed greater than the traffic flow.
75 Pa. Cons. Stat. § 3313(d)(1)(i)—(ii).

When the officer approached Byrd's stopped car and asked for Byrd's license and the rental agreement, Byrd appeared nervous and conspicuously avoided opening a center console even though Byrd had difficulty locating the requested documents. Eventually, Byrd produced an interim New York driver's license that did not include a photo. Byrd also produced the rental agreement. The rental agreement did not list Byrd as the renter or as a permissive driver.

The officer recognized the vehicles were stopped at an unsafe location and asked Byrd to move his car. Byrd complied. When the officer checked Byrd's license number, date of birth, and name, the computer returned the name James Carter. A second officer then arrived, and the officers continued to attempt to sort out the identification information. In doing so, they discovered an outstanding New Jersey warrant that indicated New Jersey did not request other jurisdictions to arrest Byrd for extradition. The officers determined James Carter was an alias, and also discovered Byrd's criminal history included drug, weapon, and assault charges. The officers requested their dispatching center to contact New Jersey officials to confirm New Jersey did not wish Pennsylvania to arrest Byrd for extradition. When attempting to clarify Byrd's identity, aliases, and criminal history, the officers experienced connection difficulties with their computer.

The officers then returned to Byrd's vehicle, asked him to exit the car, and asked him about the warrant and his alias. They also asked if he had anything illegal in the car. Byrd appeared nervous and said he had a "blunt" in the vehicle. The officers then asked Byrd for permission to search the vehicle, but stated they did not need his consent because he was not listed on the rental agreement. The officers assert that Byrd gave his consent. They subsequently found heroin and body armor in the trunk of the car and arrested Byrd.

In the District Court, Byrd moved to suppress the evidence resulting from the stop and the search, challenging the initial stop, the extension of the stop, and the search. Evidence submitted at a hearing included a dash-cam video and audio recording that began while the first officer was following Byrd's car. The video included thirty seconds prior to the officer's activation of his lights and extended through the entire stop.  Audio captured discussions between the two officers attempting to identify Byrd, determining whether to act upon the New Jersey warrant, and determining whether a search could be justified. The video and audio, together, illustrate the timing of the various tasks involved with the stop. For example, Byrd stopped his car at the second location as per the officer's request approximately nine minutes into the video. And, the officers returned to Byrd's car and asked him to exit the car approximately thirty-nine minutes into the video. At the hearing, the first officer testified it was standard practice to check with out-of-state officials to confirm whether they want the Pennsylvania officers to make an arrest even if a warrant indicates no out-of-state arrest is requested.

The District Court determined that Byrd, as the sole occupant of a rented car, had no expectation of privacy because he was not listed on the rental agreement. The District Court also found the first officer credible and accepted the officer's characterization of Byrd's passing maneuver as sufficient to justify the initial stop. Finally, the District Court held the officers developed additional reasonable suspicion of other criminal activity during the stop and all of the officers' inquiries were related to the initial stop or the newly developed suspicion.

II.

We review de novo the legal question of whether a search or seizure is reasonable under the Fourth Amendment. United States v. Delfin-Colina, 464 F.3d 392, 396 (3d Cir. 2006). We review for clear error the District Court's underlying factual determinations. Id. at 395.

The Fourth Amendment permits a traffic stop based on reasonable suspicion that a traffic violation has occurred regardless of the officer's subjective motivations for making the stop. Id. at 397 ("[T]he . . . reasonable suspicion standard applies to routine traffic stops."); United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006) ("[T]he Supreme Court established a bright-line rule that any technical violation of a traffic code legitimizes a stop, even if the stop is merely pretext for an investigation of some other crime."). Byrd argues it was clear error for the District Court to accept the officer's testimony that Byrd violated the left-lane statute. To support his argument, Byrd characterizes the dash-cam video as disproving the officer's assertion that Byrd had sufficient time and room to return to the right lane after passing the first truck and before passing the second truck. Byrd also attacks the officer's interpretation of the Pennsylvania statute, arguing that forcing drivers to repeatedly change lanes will lead to "highway chaos."

We reject Byrd's argument. The video shows Byrd in the left lane approaching and passing the second truck, but it does not show how long Byrd was in that lane or how much distance or space existed between trucks. Because the video does not disprove the officer's assertion, we find no basis to disturb the District Court's factual determination. Further, we reject Byrd's policy-based statutory-interpretation argument. The officer was required to possess reasonable suspicion of a traffic violation, not an understanding of the law akin to that of a seasoned jurist. See Delfin-Colina, 464 F.3d at 399. And, although the traffic violation at issue seemingly was minor, a stop based on the perceived violation passes constitutional muster.

Regarding the duration of the stop, officers conducting a traffic stop must act with reasonable diligence in carrying out permissible tasks related to the purpose for the stop. See Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015) ("it [is] appropriate to examine whether the police diligently pursued [the] investigation" (alterations in original) (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985))). Confirming the identity of the driver of a rental vehicle, sorting out aliases, and asking a driver to move to a more safe location are all permissible tasks. See, e.g., id. at 1615 ("[A]n officer's mission includes ordinary inquiries incident to [the traffic] stop. . . . [S]uch inquiries involve checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." (citation omitted)). An officer does not lack diligence merely because these tasks are slightly delayed by computer issues or because a driver's use of an alias and lack of photo identification complicate the identification process. Here, the several explanations set forth by the District Court are well supported and demonstrate that the officers acted with reasonable diligence in conducting the stop.

Further, "[o]nce a valid traffic stop is initiated, 'an officer who develops a reasonable, articulable suspicion of criminal activity may expand the scope of an inquiry beyond the reason for the stop and detain the vehicle and its occupants for further investigation.'" United States v. Lewis, 672 F.3d 232, 237 (3d Cir. 2012) (quoting United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003)). The first officer's observation of Byrd's nervous avoidance of the center console coupled with Byrd's non-photographic identification, his use of an alias, and the absence of his name on the rental agreement gave rise to additional suspicion of other criminal activity. Moreover, we have little trouble concluding that, upon discovering a valid outstanding warrant from another state, an officer may extend a stop to inquire as to whether that other state wants the driver arrested for extradition. Cf. Utah v. Strieff, 136 S. Ct. 2056, 2061-62 (2016) (noting that the discovery of a valid, outstanding warrant is an intervening development that breaks the causal chain between an illegal stop and the subsequent discovery of incriminating evidence). While the duration of the stop in this case may have been long, it was not constitutionally unreasonable.

Finally, Byrd argues he did not consent to the vehicle search. A circuit split exists as to whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement. See United States v. Kennedy, 638 F.3d 159, 165-67 (3d Cir. 2011) (collecting cases). The Third Circuit has spoken as to this issue, however, and determined such a person has no expectation of privacy and therefore no standing to challenge a search of the vehicle. See id. at 167-68 ("We therefore hold that society generally does not share or recognize an expectation of privacy for those who have gained possession and control over a rental vehicle they have borrowed without the permission of the rental company."). As such, we need not address Byrd's arguments concerning his lack of consent for the search.

We will affirm the judgment of the District Court.


 

 February 24, 2017

Stump the Chump

Hi "Chump".
Many of us refer back to past updates as things come up in the day to day fight against evil.   Is there any searchable database of past updates or is there a way you could include a general subject in the subject line so that I can quickly search and show my partners how very smart I am?
Thanks for what you do and please keep up the good work.

-Mickey Rourke

Mickey:Sorry, I don't have a searchable database of past updates.  However, the PA Chiefs have begun to post the updates chronologically, online (so that my messages of hope and love can reach the masses)and you can likely search in your browser from there.   (http://www.pachiefs.org/legal-updates).  I will endeavor to put a topic in the subject line from here on out, so you can search by topic.  Great suggestion Mickey. Thanks
Thanks,

Chris "The Chump" Boyle

☻♪☺♥♫□☻♪☺♥♫□

 

United States v. Acosta, 2017 U.S. Dist. LEXIS 21657  (M.D. Pa. February 16, 2017)

Defendant Brian G. Acosta ("Acosta") moves to suppress physical evidence and statements that police obtained pursuant to his October 23, 2015 arrest. Acosta argues that evidence from said arrest should be excluded because the officers who arrested him lacked probable cause. (See Doc. 34). The court will deny Acosta's motion.

I. Factual Background

The following findings are based primarily upon the court's assessment of the credibility of testimonial evidence offered during the evidentiary hearing held on January 11, 2017. (See Doc. 42).

On October 23, 2015, Harrisburg Bureau of Police Officers Jon Fustine ("Officer Fustine") and Michael Rudy ("Officer Rudy") were on duty with the Street Crimes Unit in Harrisburg, Pennsylvania. (Id. at 11:15-25, 33:11-21). Both officers were in unmarked vehicles with their respective partners when they received a call at approximately 6:00 p.m. from dispatch stating that there was a white male with a black shirt and camouflage hat with a gun in the area of 20th Street and Kensington Street. (Id. at 12:9-13:12, 33:22-34:10). Officer Fustine drove past the specified area and noticed a man matching the dispatcher's description, who Officer Fustine later identified as Acosta. (Id. at 13:22-14:5, 15:6-9). Officer Fustine and his partner parked and exited their vehicle to follow Acosta on foot down an alleyway. (Id. at 14:15-15:14). Officer Rudy received a radio transmission from Officer Fustine describing Acosta's location. (Id. at 35:2-9). Officer Rudy located and followed Acosta in his vehicle down an alleyway. (Id. at 35:5-23).

Acosta testified that he was walking home around 6:00 p.m. on October 23, 2015. (Id. at 4:4-24). He stated that he encountered Officer Rudy in his unmarked vehicle and that he felt threatened by the vehicle with tinted windows but did not see police. (Id. at 5:2-19, 6:1-10). Contrary to Acosta's account, Officer Fustine testified that he was following Acosta on foot and his radio went off, causing Acosta to look behind him. (Id. at 15:12-18). Acosta began to run. (Id. at 6:1-13, 15:15-22, 37:4-10). Officer Rudy testified that the windshield of his vehicle was not tinted, he and his partner were both wearing uniforms with "POLICE" printed in gold lettering across their chests, and Acosta was only feet away from Officer Rudy's vehicle. (Id. at 43:15-46:4). Given Acosta's testimony that he saw the vehicle when it pulled up beside him, (id. at 5:4-15, 6:8-10), the court credits the officers' account, to wit: when Acosta saw and heard the police, he began to run. (Id. at 37:3-6).

Acosta held his right side as he ran. (Id. at 16:2-13, 37:11-14). Officer Fustine pursued him on foot while Officer Rudy pursued him in his vehicle. (Id. at 16:2-3, 37:8-16). Officer Fustine lost sight of Acosta when he turned onto Kensington Street from the alleyway, but Officer Rudy exited his vehicle and pursued Acosta as he ran into a yard on Kensington Street. (Id. at 16:20-23, 37:17-38:1). Officer Rudy followed Acosta through the backyard of 2044 Kensington Street and lost sight of him when he rounded a corner. (Id. at 37:21-39:16). Officer Fustine saw Acosta emerge from the backyard and chased him until he and another officer were able to detain him a few blocks away. (Id. at 17:1-22).

Officer Rudy was not involved in the actual apprehension of Acosta; instead, he checked Acosta's flight path for evidence. (Id. at 39:17-40:2). Officer Rudy found a firearm lying on the ground in the backyard of 2044 Kensington Street. (Id. at 39:24-40:2). Officer Fustine ordered an officer to track Acosta's flight path with a canine, who also located the firearm. (Id. at 17:24-18:15, 40:7-13). Officer Fustine recovered the firearm, which was loaded with live rounds. (Id. at 18:16-20, 40:5-13). Officers then placed Acosta under arrest and searched him, finding a black ski mask on his person. (Id. at 19:12-24).

II. Procedural History

On June 22, 2016, a federal grand jury returned a one-count indictment against Acosta. (Doc. 1). A superseding indictment returned on July 20, 2016 charges Acosta with being a felon in possession of a firearm on October 23, 2015 (Count 2) and December 27, 2015 (Count 1) in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). (Doc. 20). Acosta pled not guilty to both counts. (Doc. 27). Jury selection and trial are currently scheduled to begin at 9:30 a.m. on March 6, 2017. (Doc. 44). On December 12, 2016, Acosta filed the instant motion to suppress, accompanied by a supporting brief. (Docs. 34, 35). On December 19, 2016, the United States filed a brief in opposition. (Doc. 37). The court convened a hearing on the motion on January 11, 2017. (See Doc. 42). At the court's direction, the parties filed supplemental briefs on February 3, 2017. (Docs. 45, 46). The motion is fully briefed and ripe for disposition.

III. Discussion

The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. See U.S. Const. Amend. IV; Horton v. California, 496 U.S. 128, 133, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). Generally, a seizure is reasonable only if effectuated with a warrant supported by probable cause. See United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002) (citing Katz v. United States, 389 U.S. 347, 356-57, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)). The government bears the burden of demonstrating that an exception to the Fourth Amendment's warrant requirement existed at the time of a seizure. See U.S. v. Johnson, 63 F. 3d 242, 245 (3d Cir. 1995).

The Supreme Court has long recognized that a warrantless arrest of an individual in a public place, when supported by probable cause, does not violate the Fourth Amendment. See United States v. Watson, 423 U.S. 411, 423-24, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976). Probable cause is an amorphous concept. Ornelas v. United States, 517 U.S. 690, 695-96, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996). It is "not readily, or even usefully, reduced to a neat set of legal rules." Id. (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)). Its existence must be determined from the view of the officer on the street, not the judge in the courtroom. United States v. Sokolow, 490 U.S. 1, 7-8, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989); see also United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). Probable cause exists when circumstances within a police officer's knowledge are sufficient for a prudent person to conclude that a person has been or is [*6]  committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964). Mere suspicion is insufficient, but evidence beyond a reasonable doubt is not required. Orsatti v. N.J. State Police, 71 F.3d 480, 482-83 (3d Cir. 1995).

Flight upon appearance of police alone cannot "elevate reasonable suspicion to detain and investigate into the probable cause required for an arrest," but flight coupled with other indications of wrongdoing may support probable cause. United States v. Navedo, 694 F.3d 463, 472 (3d Cir. 2012). An anonymous tip concerning a person carrying a gun lacks "indicia of reliability" and does not support reasonable suspicion without corroboration. Robertson, 305 F.3d at 175 (citing Florida v. J.L., 529 U.S. 266, 274, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000)). Several factors may corroborate an anonymous tip, to wit: presence in a high crime area, presence late at night, nervous behavior or flight, or conduct that conforms to an officer's "specialized knowledge of criminal activity." United States v. Brown, 448 F.3d 239, 251 (3d Cir. 2006). Other factors include "geographical and temporal proximity of the stop to the scene of the alleged crime," and number of other individuals in the area. United States v. Goodrich, 450 F.3d 552, 561 (3d Cir. 2006). The totality of the circumstances must be considered, as no single factor is dispositive. See Ornelas, 517 U.S. at 698; Cortez, 449 U.S. at 417.

Officer Fustine and Officer Rudy had reasonable suspicion to believe that Acosta was in violation of the law when he fled from police.1 Acosta is correct in noting that, in isolation, the anonymous tip sub judice was not sufficient for reasonable suspicion. See Robertson, 305 F.3d at 175; (Doc. 45 at 3-4). Neither was Acosta's flight independently sufficient to create reasonable suspicion. See Navedo, 694 F.3d at 472; (Doc. 45 at 3-4). But considering the totality of the circumstances presented to Officers Fustine and Rudy, reasonable suspicion existed to stop Acosta. See Cortez, 449 U.S. at 417. The officers were employed in a Street Crimes Unit, working within a high-crime area. (Doc. 42 at 11:24-12:8, 33:16); see Brown, 448 F.3d at 251. Acosta matched the description from the anonymous tip, (id. at 14:1-5, 35:2-6), and was geographically and temporally in the correct location. (Id. at 12:23-14:5, 34:5-35:6); see Goodrich, 450 F.3d at 561. No other individuals were identified anywhere on the street at the time the officers located Acosta. (Id. at 20:23-21:3); see Goodrich, 450 F.3d at 561. Acosta held his side as he ran, a key fact which Officer Fustine considered suspicious and indicative of concealment. (Id. at 16:2-13). Given Acosta's flight when he saw the police, as noted supra, see Brown, 448 F.3d at 251, the facts coalesce to form grounds for reasonable suspicion.

1 In its analysis, the court employs the "collective knowledge doctrine," under which the knowledge of one law enforcement officer may be imputed to another when the officers are conducting a joint endeavor. See United States v. Whitfield, 634 F.3d 741, 745-46 (3d Cir. 2010); United States v. Belle, 593 F.2d 487, 497 n.15 (3d Cir. 1979).

Officer Fustine's reasonable suspicion justified his stop of Acosta, and when Officer Rudy located Acosta's gun, suspicion elevated to probable cause for arrest. The existence of a [*8]  discarded gun is sufficient for a prudent person to conclude that Acosta had committed a crime. See Beck, 379 U.S. at 91. The court finds that the gun and the circumstances surrounding Acosta's arrest to support probable cause. See Navedo, 694 F.3d at 472. Evidence recovered pursuant to Acosta's arrest and any statements he made thereto are consequently admissible.

IV. Conclusion

The court will deny Acosta's motion (Doc. 34) to suppress evidence

COMMENT: I'll tell you what.  When I read a case of TEAMWORK like this, it makes me proud as all get out to have had the honor of working in law enforcement, and for you folks allowing me to continue to play my small part.  This is just a sweet job, well described, from Jump Street to the very end.  From the lofty perch of your defense counsel, let me say that rarely do we see a case that better applies facts to describe "a totality of the circumstances".  Somewhere, there is an incident report or arrest report, that contains all of these facts.  No fact too small in describing the totality. Definitely something to keep in mind.

As an aside, and if you will forgive me the digression, back in the day, I was in Two Squad in the First District in Philadelphia, the "Young Guns" as Sergeant Olson called us.  Obviously, that was a looooooong time ago.  It was by no means "The Badlands", but we had our share of desperados.  I was honored to work with a crime fighter by the name of Frank Vanore who had my back in thick and thin.  He is being promoted to Chief Inspector in Philly PD.  I can think of no one more deserving.  Congratulations Frank

For tolerating my walk down memory lane, the least I can do is a bonus case.  Be safe out there troops:

Mushinsky v. Commonwealth, 2017 Pa. Commw. Unpub. LEXIS 119  (Pa. Commonwealth, February 21, 2017)

The Department of Transportation, Bureau of Driver Licensing (Department) appeals from a March 15, 2016 order of the Court of Common Pleas of Luzerne County (Trial Court), granting the appeal of Marie Mushinsky (Licensee) from a one-year suspension of her driver's license imposed by the Department for refusal of chemical testing in violation of Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1)(i), commonly known as the Implied Consent Law. For the reasons set forth below, we reverse.1

1 The issue of whether there was a refusal to submit to chemical testing is a question of law subject to this Court's plenary review. Mueller v. Department of Transportation, Bureau of Driver Licensing, 657 A.2d 90, 93 (Pa. Cmwlth. 1995). Our scope of review is limited to determining whether the trial court's findings are supported by competent evidence, errors of law have been committed, or the trial court has abused its discretion. McCloskey v. Department of Transportation, Bureau of Driver Licensing, 722 A.2d 1159, 1161 (Pa. Cmwlth. 1999).

This matter arises out of a November 14, 2015 incident in which Licensee was taken into custody following a minor vehicle accident. A Wilkes-Barre Police Department Officer (Officer) dispatched to the scene found Licensee in the driver's seat and detected an odor of alcohol emanating from within her vehicle; he stated that Licensee was unable to comply with his request that she place her vehicle in park and shut off the engine, so he reached into the vehicle and did so himself. (March 14, 2016 Transcript of Proceedings (H.T.), Reproduced Record (R.R.) at 41a.) Officer requested that Licensee exit her vehicle and she stumbled as she did so. Finding "overwhelmingly enough evidence," Officer took

Licensee into custody for suspicion of driving under the influence, and transported her to the Luzerne County DUI Center. (Id.) There, Officer observed the operator on duty at the DUI Center, Detective Casey (Detective), as he read the implied consent warnings to Licensee and administered a chemical breath test. (Id., R.R. at 42a-43a.) After completing the first test sample, which yielded a blood alcohol content reading of 0.259 percent, Licensee failed to properly complete a second sample,2and her failure to comply was deemed a refusal; Licensee refused to sign the DL-26 form. (Id., R.R. at 42a, 44a.)

By notice dated December 1, 2015, the Department informed Licensee that her license was suspended for a period of one [*3]  year effective January 5, 2016 based on her refusal to submit to a chemical breath test on November 14, 2015. (R.R. at 30a-32a.) Licensee appealed the suspension and a de novo hearing was held before the Trial Court on March 14, 2016. (Petition for Appeal, R.R. at  28a-29a; H.T., R.R. at 40a-48a.) The Trial Court granted Licensee's appeal and the Department appealed to this Court, arguing that the Trial Court erred as a matter of law in holding that Licensee did not refuse chemical testing. At the hearing, Officer read from his affidavit of probable cause, wherein he stated, inter alia, that Detective advised Licensee that the police requested a chemical breath test, and that after explaining the process to Licensee

several times, Licensee continued to ask to speak with her sister; after Detective read the DL-26 form to Licensee, she agreed to perform the chemical breath test. (H.T., R.R. at 42a.)

Detective testified that throughout the processing, Licensee was not following instructions, stating:

But the whole entire processing of [Licensee] she wasn't following instructions. And I give very explicit and simple instructions of once you start to blow, do not stop, blow good, strong and steady until I tell you to stop and before you start to make a nice tight seal around the tip of the mouthpiece as if you're blowing into a straw. Those are historically the same commands I give to everybody. [Licensee] said that she understood but when - if you were to examine the [Datamaster] ticket, her breathing pattern is not consistent with the instruction I provided on either test number one or two.

(Id., R.R. at 43a-44a.) He testified further that although he provided the instruction to provide a good, strong and steady breath until directed to stop, the Datamaster report graph for the first test indicates that Licensee introduced at least six breaths and then stopped, and that only when she introduced enough air and continued to blow for a long enough period did the instrument capture the sample. (Id., R.R. at 44a; Subject Test, R.R. at 58a.) Detective stated that the Datamaster report graph  for the second test demonstrates that during that test, Licensee's proffered breath sample faded off, stopped, and then after three [additional breaths, Licensee sucked back into the instrument, causing it to register as a "suck-back" error, which invalidated the test. (Id.) Detective testified that at that point, he informed Licensee that she had not performed the test correctly, and he was going to record a refusal. (H.T., R.R. at 44a.)

Licensee testified that Detective did not offer her the opportunity to provide a third breath sample or to submit to a blood test, and it was not her intention to not give a sample. (Id., R.R. at 47a.) Licensee also acknowledged that Detective had instructed her on how to perform the breath test, how to make a tight seal around the tubing, and instructed her that she needed to blow steadily until he told her to stop, and she stated that she believed she had performed the test to the best of her ability. (Id.)

In its opinion, the Trial Court noted that it regarded its decision as a determination of law rather than one of credibility, and found that "[t]o the extent that good faith plays any role in the refusal analysis…[Licensee] acted in good faith during the process of attempting to comply with [Detective's] instructions." (Trial Court Opinion, R.R. at 27a, 27a n.4.) The Trial Court [*6]  further found that "there is reasonable explanation for [Licensee's] failure to complete the second test given the number of breaths required before the machine 'captured' the initial sample and the description contained in the record concerning [Licensee's] attempt to provide a second sample." (Id., footnote omitted.)

In order to sustain a suspension of operating privileges under the Implied Consent Law, the Department is required to prove that the licensee (i) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating the vehicle under the influence of alcohol or a controlled substance; (ii) was asked to submit to a chemical test; (iii) refused to do so; and (iv) was warned that a refusal would result in a suspension of operating privileges. Marone v. Department of Transportation, Bureau of Driver Licensing, 990 A.2d 1187, 1190 (Pa. Cmwlth. 2010). Once the Department meets its burden of showing that the licensee refused chemical testing, the burden shifts to the licensee to show that he or she was not capable of making a knowing and conscious refusal or was physically unable to take the test. Giannopoulos v. Department of Transportation, Bureau of Driver Licensing, 82 A.3d 1092, 1094 (Pa. Cmwlth. 2013); Kollar v. Department of Transportation, Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010).

When a licensee fails to "exert a total conscious effort, and thereby fails to supply a sufficient breath sample, such  is tantamount to a refusal to take the test."Appeal of Budd, 442 A.2d 404, 406 (Pa. Cmwlth. 1982). Even a licensee's good faith attempt to comply with the test constitutes a refusal where the licensee fails to supply a sufficient breath sample, absent a proven medical reason that precludes a licensee from doing so. Sweeney v. Department of Transportation, Bureau of Driver Licensing, 804 A.2d 685, 687 (Pa. Cmwlth. 2002);Pappas v. Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504, 508 (Pa. Cmwlth. 1996); Department of Transportation, Bureau of Driver Licensing v. Kilrain, 593 A.2d 932, 935 (Pa. Cmwlth. 1991) ("Anything less than a completed breathalyzer test which registers a blood alcohol reading on the breathalyzer constitutes a refusal"); Department of Transportation, Bureau of Driver Licensing v. Berta, 549 A.2d 262, 264 (Pa. Cmwlth. 1988). Given our well-established law, Licensee's "good faith" attempt to complete a second breath test cannot excuse her failure to do so.

Licensee argues that our Court's decision in Bomba v. Department of Transportation, Bureau of Driver Licensing, 28 A.3d 946 (Pa. Cmwlth. 2011), where the licensee gave unqualified consent to breath testing, was unable to provide an adequate sample within the timeframe allowed by the machine and immediately sought to retake the test but was refused, is instructive and should be followed here. However, Bomba is readily distinguishable. There, our Court found that licensee's conduct did not constitute a refusal; Bomba did not involve a situation wherein there were multiple attempts to provide an adequate breath sample, nor was there any record evidence that the licensee deliberately failed to follow instructions or undermine the testing process in any [*8]  way. Id. at 951. In Bomba, the licensee was provided with just one opportunity to provide an adequate breath sample; she attributed her inability to perform the test the first time to being upset by her arrest and placement in a holding cell and, upon hearing that her failure to complete the test would be deemed a refusal, she immediately asked for another chance. Id. at 948-949.

Sub judice, there is ample evidence in the form of testimony of both Officer and Detective that Licensee was hesitant to take the test, and repeatedly asked to see her sister prior to taking the test; despite being provided with instructions, repeatedly and patiently administered, she did not follow them, and although there is no evidence that she was unable to perform the test the way she had been told to perform it, she did not do so. (H.T., R.R. at 42a-44a.) As the Court noted in Bomba, refusal cases are highly fact sensitive, and "[the

Department] is incorrect that in every case where the officer decides not to give the licensee a second chance at a breathalyzer, it has proven a refusal to consent to chemical testing." 28 A.3d at 951. We find in this case that Licensee was given more than sufficient opportunity to perform the test and her [*9]  failure to follow  Detective's instructions and to blow properly into the machine, even after she ultimately managed to blow sufficiently on the first test to allow the breathalyzer to capture a reading, constitutes a refusal.3 Licensee did not offer any evidence to show that she could not have made a knowing and conscious decision to refuse testing or that she was physically incapable of completing a breath test.

For the foregoing reasons, we reverse the Trial Court, and direct the Department to reinstate the one-year suspension of Licensee's operating privilege imposed in accordance with the Implied Consent Law.

COMMENT: I'll admit it- They had me at "suck-back error".  Never knew there was a name for it.  I guess if we tell them to act like it's a straw, that's going to happen from time to time. Clearly, we are all a little better off that this particular suck back error is off the roads for a year.

CB


 

March 3, 2017 

STUMP THE CHUMP

Chump:
I'm not saying this happened but, hypothetically, say we get a 9-11 of a person with a gun.  On arrival, victim identifies the subject my name, age, description and address (they go to school together).  Claims he pointed the gun at her, jokingly, but she was scared. Subject is fifteen years old.  We know him from prior contacts, mostly minor stuff.  Within five minutes of the call, we go to the house and the mother, who lies for him out of habit, says he isn't there.  Since we have the description from a known victim, anything stopping us from going in there and getting him?

-Gordon Lightfoot

Gordon:
Possibly  the Constitution.  I am trying to think of an exception to the warrant requirement here, but I am afraid I am not coming up with one.  Consent?  Mom says he isn't there, so she obviously isn't letting you in.  Hot pursuit?  Nah.  Public safety exception?  Nope.  He is in his own house.  Plain view? Who are you, Superman?  Can't see through the walls, so plain view doesn't work.  Automobile exception?  Does he live in a functioning motor home? No? Then automobile exception is out.  Exigent circumstances?  Not from the facts you've provided.  As I see it, you have two choices.  Tell mom what he is accused of, and see if she has a change of heart and sends him down to go with you, or, cover front and rear, and get a warrant. 

- Chris "The Chump" Boyle

☻♪☺♥♫□☻♪☺♥♫□

COMMENT: A truly great pinch is built, not stumbled upon.  Each fact is like a brick in a building of probable cause.  One fact, standing alone, unless it is an actual "smoking gun", is seldom sufficient.  I think it is fair to say that we all know, or knew, some really great co-workers, who were also as dumb as a bag of rocks.  Sure, they would chase bad guys all day long. Catch them, too.  But their arrest reports could have been written in crayon.  You know who I’m talking about. “We luv ya, ya big dumb animal, but learn to write an arrest report.” The officers in this case write and work like real pros.

For you young guys and gals out there, I offer you the matter of these United States of America versus one, Angel Angulo.  Want to know what makes a great pinch?  Pay attention to the step by step way in which Officer Rock (cool name of the day),Officer Bohn, Officer Burns and Sergeant Obuchowski, BUILD their case.  It is, to someone who has done this work for almost thirty years, a beautiful thing.  You will notice that no one gave in to the temptation to stop the car too soon, to pull people out before they were ready, or to call the dog until the dog was needed.  Artwork.  I think I need a cigarette.  This, is a truly great pinch.  Enjoy:

United States v. Angulo, 2017 U.S. Dist. LEXIS 25098  (D.N.J. Feb 22, 2017)

This matter is before the Court on a motion by Defendant Angel Angulo to suppress evidence recovered from a rental car in which he was a passenger on May 14, 2011. The Court has considered the submissions of Defendant and the Government, and heard oral argument on the motion. For the reasons discussed on the record that day as well as those set forth below, the Court denies the motion to suppress.

 

Procedural History

On May 14, 2011 Angel Angulo, along with co-defendant Crystal Banuelos, was arrested by the Cinnaminson Township Police. Initially, Angulo was charged by the state of New Jersey with Trafficking in Personal (ID) Information (New Jersey Criminal Code 2C:21-17.3(b)); Criminal Attempt (2C-5-1(a)(1)[2C:21-6(d)]); and Credit Card Theft (2C:21-6(d)). Angulo was released on  bail. Subsequently, the state charges were dismissed and he was charged in federal court by indictment filed on July 22, 2015. Angulo is charged with one count of conspiracy to commit bank fraud (18 U.S.C. § 1349) and one count of aggravated identify theft (18 U.S.C. § 1028A(a)(1)). He was arrested in California pursuant to an arrest warrant issued at the time the case was indicted. At the initial appearance in California, bail was denied. As a result, Angulo was held and transported to the District of New Jersey. He made his initial appearance and was arraigned on August 12, 2015. During hearing, Angulo entered a not guilty plea and consented to detention. He later petitioned the court for bail which was set at $100,000 unsecured bond, co-signed by two individuals, one of which is a third party custodian. On December 16, 2015, all bail conditions were met and Angulo was released from custody. He remains released on bond.

 

Factual Background

On May 14, 2011, at approximately 11:45 a.m., Officer F.D. Rock of the Cinnaminson Township Police Department observed a white Chevy Impala with New York license plates ("the Vehicle") parked just under a stop sign at an intersection on Highland Avenue, with Banuelos sitting behind the  wheel. (See Rock Rpt. at 1.)1 Rock noted that the car did not move, even though there was a break in traffic. (Id.) Rock's suspicions were heightened because knew that the Beneficial Bank, located approximately 220 feet away from the Vehicle, had been robbed previously and in those prior robberies, the perpetrators had parked in the same location as the Vehicle, just out of sight of the bank. (Id.) Further, Rock noted that several residential day-time burglaries had recently occurred in the area. (Id. at 2.) Finally, as Rock drove past the Vehicle, Banuelos avoided eye contact with him. (Id.)

 

FOOTNOTES

1 The parked Vehicle was determined to be in violation of N.J. Stat. Ann. § 39:4-138(h) (improper parking within 50 feet of a "Stop" sign). (See Johnson Rpt. at 1.)

As Rock drove closer to the bank, he observed a Hispanic man, later identified as Angulo, walking quickly away from the bank entrance across the parking lot. (Id.) Although it was a cloudy day, Angulo was wearing dark sunglasses; also, Angulo was carrying something in his hands, although Rock could not see what it was. (Id.) As Angulo saw Rock driving by, he immediately put his head down to avoid eye contact and continued walking at a fast pace toward the area where the Vehicle was parked. (Id.) Rock next saw the Vehicle driving toward him with Angulo in the passenger seat. (Id.) By this time, Rock had information that the Vehicle was registered to a rental company. (Id.)

Rock radioed other officers in the vicinity to look out for the Vehicle while he checked on the bank. (Id.; see also Bohn Rpt. at 1.) An officer nearby, Kevin Bohn, saw the Vehicle, and began to follow it. (See Bohn Rpt. at 1.) Rock spoke with the bank tellers who told him that the male wearing sunglasses had walked past the front entrance, but did not enter the bank. (See Rock Rpt. at 2.) The tellers had assumed he was walking to the ATM machine, which was outside and just past the front entrance of the bank. (Id.) Rock thought it was suspicious for the driver of the Vehicle to park so far away from the bank when using the ATM, when the parking lot of the bank was nearly empty. (Id.) At this point, Rock radioed the other officers to stop the Vehicle to investigate. (Id.)

The Vehicle had pulled into a gas station and up to a pump, and Officer Bohn "effectuated a motor vehicle stop" of the Vehicle. (See Bohn Rpt. at 1.) As he approached the car, he observed that Banuelos was sitting in the driver's seat and that Angulo was in the gas station's convenience store. (Id.) Bohn asked Banuelos for her license and registration. (Id.) Banuelos handed Bohn her California driver's license and  an insurance card, but stated that the Vehicle was a rental car and that she did not have the registration or the rental agreement. (Id.) Bohn noted that Banuelos only quickly glanced in the glove compartment before stating that she did not have the registration or rental agreement. (Id.) Bohn asked Banuelos who was in the vehicle with her; after a long pause followed by "ummmmmmmm," she looked around the car, and answered her boyfriend. (Id.) Bohn asked Banuelos if her boyfriend had gone into the convenience store, and she responded that he had. (Id.; see also Dash Cam Video at 2:31.) The transcript of the video from the dash cam sets forth the conversation:

OFFICER BOHN: How are you doing Ma'am?

CRYSTAL BANUELOS: (UI)

OFFICER BOHN: You have your license and registration?

CRYSTAL BANUELOS: Um....

OFFICER BOHN: Is there someone else in the car with you?

CRYSTAL BANUELOS: I'm sorry?

OFFICER BOHN: Is there anybody else in the car with you?

CRYSTAL BANUELOS: (UI)

OFFICER BOHN: Huh?

CRYSTAL BANUELOS: Here's my license.

OFFICER BOHN: Okay

CRYSTAL BANUELOS: Actually I don't have um my registration. It's a rental car.

OFFICER BOHN: Okay. You have some rental documents. Who else is in the car with you? 

CRYSTAL BANUELOS: This?

OFFICER BOHN: Yeah. That's fine. Who else is in the car with you?

CRYSTAL BANUELOS: I'm sorry?

OFFICER BOHN: Who else is in the car with you?

CRYSTAL BANUELOS: Um...(UI)

OFFICER BOHN: Ok....(UI) You had to think about that?

CRYSTAL BANUELOS: No.

OFFICER BOHN: What's going on?

CRYSTAL BANUELOS: Nothing, sir.

(Dash Cam Video Tr. at 1.)

Rock arrived on the scene and Bohn began to talk to him, but then saw Angulo exit the convenience store abruptly and quickly turn left to go to the south side of the building. (Id. at 2; see also Rock Rpt. at 2-3; Dash Cam Video at 3:02.) Bohn called to Angulo, who stopped to talk with him. (Bohn Rpt. at 2.) The store clerk informed Bohn that when Angulo saw Bohn pull into the parking lot, Angulo "panicked, dropped all of his things and asked for the key to the bathroom." (Obuchowski Rpt. at 4.)

Angulo provided Bohn with a California driver's license. (Bohn Rpt. at 2.) Bohn and Rock asked Angulo why he was walking around the bank parking lot and Angulo said that his girlfriend saw a text message from another girl and they got into an argument. (Id.; see also Rock Rpt. at 3.) Bohn asked Angulo to stand by the hood of the Vehicle. (Id.)

At this point, Police Officer Michael Burns, Jr. and Sergeant William Obuchowski arrived on the scene. (Id.; Burns Rpt. at 1.) Rock reported that Banuelos and Angulo were giving conflicting and suspicious answers to their questions. (Burns Rpt. at 1.) Burns approached the Vehicle and asked Banuelos why they were in the area from California. (Id.) She said they were to attend her cousin's graduation, referred to as "her," but she could not answer what college her cousin attended and could not say what state the college was located in. (Id.) Burns reported that Banuelos "was very nervous and would take an unusual amount of time to answer questions." (Id.) She also stated that she did not know where she was staying. "She was very evasive with her answers and spoke in a very low voice. She would avoid eye contact while [the officers] spoke with her." (Id.)

Bohn proceeded to check on the validity of the licenses; he determined that both driver's licenses were valid and neither Banuelos nor Angulo had any outstanding warrants. (Bohn Rpt. at 2.) Bohn also determined that the Vehicle was registered to Rental Car Finance Company, but continued to call several rental companies to obtain verification that Banuelos properly possessed the Vehicle. (Id.) Obuchowski told Officer Bohn to contact the rental company and confirm that Banuelos was permitted to have possession of the Vehicle. (See Obuchowski Rpt. at 2.) Obuchowski also instructed Rock to remove the keys from the ignition, which he did. (Id. at 2.)

Obuchowski and Burns went to the front of the car to stand by Angulo. When questioned, Angulo referred to the cousin as a male and gave the name Nathan. (Burns Rpt. at 2.) "He had an aggravated demeanor." (Id.) While Angulo was sitting on the hood of the car, he kept turning around and attempting to talk to Banuelos. (Id.) He repeatedly put his hands to his pockets, even though he was instructed not to do so. (Id.) Every time the officers would go near the Vehicle, both Banuelos and Angulo appeared "to get nervous and annoyed" and "kept stating that [the police were] not allowed to search their vehicle." (Burns Rpt. at 2; see also Obuchowski Rpt. at 3.)

At this point, Burns suggested to Obuchowski that they ascertain whether a narcotics detection dog was available to walk around the vehicle. (Burns Rpt. at 2.) Obuchowski agreed, reportedly because "it was clear that both [Angulo and Banuelos] were lying and were attempting to hide something." (Obuchowski Rpt. at 3.) Obuchowski made the call and was advised that an officer with a K-9 would be responding to their location. (Id.)

Next, Rock opened the front passenger door of the Vehicle to search the glove box and center console for the rental agreement. (Rock Rpt. at 3; see also Burns Rpt. at 2; Obuchowski Rpt. at 3.) He reported that Banuelos became "extremely agitated" and demanded that Rock get out of the Vehicle. (Rock Rpt. at 3.) Similarly, Angulo became agitated and demanded that Rock stop going through "his stuff." (Id.)

Because Angulo was "visibly irritated," Obuchowski and Burns put him in the back of Bohn's police car, after searching him for weapons. (Id.; Burns Rpt. at 2.) Burns allowed Angulo to keep two cell phones and his wallet, but confiscated a clear plastic bag of pills that Angulo had represented were toothpicks. (Burns Rpt. at 2.) At Obuchowski's direction, Rock later took the two cell phones from Angulo and placed them on the hood of the car, where they rang "continuously." (Obuchowski Rpt. at 3; Rock Rpt. at 4.)

At this point, Bohn was able to verify with Dollar Rent-A-Car that Banuelos had rented the Vehicle. (Bohn Rpt. at 2-3.) While Bohn was on the phone, Rock moved Angulo to the back of his police car. (Id. at 3.) During the entire encounter with Banuelos and Angulo, Bohn spent approximately 17 minutes initially speaking with Banuelos and Angulo, checking the driver's licenses of Angulo and Banuelos, running warrant checks, and attempting to figure out the phone number for the rental car company because Banuelos was not able to provide a copy of the rental agreement and claimed to not know any information about where she rented the car. (See Dash Cam Video at 1:35 - 18:45; Dash Cam Video Tr. at 1-7.) Bohn's call with the rental company lasted approximately 15 minutes to confirm that Banuelos was permitted to possess the rental car. (See Dash Cam Video at 18:45 - 32:38; Dash Cam Video Tr. at 7-9.)

Approximately ten minutes after Officer Bohn finished his call with the rental company, Corporal Ryan Bourbon of the Evesham Police Department arrived on the scene with his K-9 partner. (See Dash Cam Video Tr. at 41:57-43:13; Rock Rpt. at 4; Bohn Rpt. at 3; Burns Rpt. at 3.) The dog alerted to the scent of narcotics on the driver's side rear door, the trunk and the passenger's side front and rear doors on the Vehicle, so the officers had it towed to the police station and obtained a warrant for its search. (Id.; Obuchowski Rpt. at 4-5.) The search yielded, among other things, approximately $13,000 in cash and counterfeit debit cards encoded with stolen bank account information with a corresponding pin number written on the card, and receipts for illegal cash withdrawals. (Johnson Rpt. at 3; Cinnaminson Police Evidence/Property Form at 1.)

 

Discussion

The Fourth Amendment to the U.S. Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. To prevail on a motion to suppress, a defendant generally bears the burden of proving that the challenged search or seizure was unreasonable under the Fourth Amendment. See United States v. Acosta, 965 F.2d 1248, 1257 n.9 (3d Cir. 1992) ("The proponent of a motion to suppress has the burden of establishing that his Fourth Amendment rights were violated."). However, once the defendant has established a basis for his motion, i.e., that the search or seizure was conducted without a warrant, the burden shifts to the government to show that the search or seizure was reasonable. United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995).

The police may stop a car and briefly detain it and its occupants in order to investigate a reasonable suspicion that such persons are involved in criminal activity if the stop is reasonably related in scope to the circumstances which justified the stop. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Although the reasonable suspicion requirement is a "less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence," it nonetheless requires an officer to articulate an "objective justification for making the stop." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989)). As such, "an officer who develops a reasonable, articulable suspicion of criminal activity may expand the scope of an [*12]  inquiry beyond the reason for the stop and detain the vehicle and its occupants for further investigation." United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003).

The Supreme Court has held that a dog sniff of a car during a lawful traffic stop does not violate the Fourth Amendment. Illinois v. Caballes, 543 U.S. 405, 410, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). See also Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000) (A dog sniff of the exterior of a car is "much less intrusive than a typical search") (quotation omitted). Further, the Court rejected the argument that, while executing the stop in a reasonable manner, the shift in purpose from a lawful traffic stop into a drug investigation was unlawful because it was not supported by any reasonable suspicion. Caballes, 543 U.S. at 408. Rather, the Court upheld the trial judge's determination that a dog sniff was sufficiently reliable to establish probable cause to make a complete search of the trunk of the car. Id. at 409. The Third Circuit has acknowledged as much. "It is . . . well-established that, looking at the totality of the circumstances, a dog's positive alert while sniffing the exterior of the car provides an officer with the probable cause necessary to search [the interior of] the car without a warrant. United States v. Pierce, 622 F.3d 209, 213 (3d Cir. 2010) (citing Karnes v. Skrutski, 62 F.3d 485, 498 (3d Cir. 1995) ("[I]t is clear that the drug dog's alert would present probable cause for a search."); United States v. Massac, 867 F.2d 174, 176 (3d Cir. 1989) ("When the alert was given by the dog, we are satisfied that, at least when combined with the other known circumstances, probable cause existed to arrest.").

However, "a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, 'become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission' of issuing a ticket for the violation." Rodriguez v. United States, 135 S. Ct. 1609, 1612, 191 L. Ed. 2d 492 (2015) (quoting Caballes, 543 U.S. at 407). Ordinary inquiries incident to a traffic stop include "checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." Id. at 1615 (emphasis added). Reasonable suspicion of criminal activity may justify detaining an individual beyond completion of the traffic infraction investigation for a dog sniff. Id. Where the officer had reasonable suspicion of criminal activity, the Third Circuit upheld expanding an initial traffic stop to effect a K-9 search held ten minutes after the defendant would have been free to leave the traffic stop; the entire stop took 55 minutes. United States v. Robinson, 529 F. App'x 134 (3d Cir. 2013). See also United States v. Leal, 235 F. App'x 937 (3d Cir. 2007) (upholding K-9 search delayed by 80 minutes); [*14]  United States v. Frost, 999 F.2d 737, 740-42 (3d Cir. 1993) (same).

Angulo has argued that the evidence recovered from the rental car should be suppressed because the officers' reasonable suspicion of a bank robbery had dissipated by the time of the traffic stop (when Rock confirmed there had been no bank robbery) and the police lacked any fresh suspicion to extend the traffic stop to include a K-9 search.

The Court finds that the officers in this case had a reasonable and articulable suspicion of illegal activity sufficient to extend the stop. Although the bank tellers reported that Angulo had not entered the bank, Rock's suspicion was increased because the driver of the Vehicle parked far away from the bank's ATM, even though the parking lot of the bank was nearly empty. Suspects in recent bank robberies parked in the same location as the Vehicle. Rock also noted that Angulo was wearing dark sunglasses on a cloudy day and both he and Banuelos avoided eye contact with the officer. The fact that the Vehicle was a rental car with out-of-State tags is also why Rock had another officer stop the Vehicle to question the occupants.

Officer Bohn approached Banuelos in the Vehicle, and she produced a California driver's license but no vehicle registration [*15]  or rental agreement. She also seemed evasive in her answers to questions. Next, Angulo exited the convenience store and walked quickly away from the Vehicle, rather than toward it. Information from the store clerk led to a suspicion that Angulo was attempting to take flight and possibly hiding narcotics. Both Banuelos and Angulo appeared nervous, and gave inconsistent stories about their travel.

This demeanor continued after Obuchowski and Burns arrived on the scene. Banuelos and Angulo both became irritated with the officers when they got close to the vehicle. At Burns' suggestion, Obuchowski made the call to check on the availability of a K-9 before Bohn was able to ascertain that Banuelos properly possessed the Vehicle. The K-9 arrived on scene approximately ten minutes after Bohn finished his call with the rental company. There is no evidence that the officers artificially prolonged the stop to wait for a K-9 unit.

Considering the totality of the circumstances, the officers possessed reasonable suspicion that a crime was being committed. The fact that the suspicion shifted from suspicion of criminal activity regarding the bank to suspicion of narcotics activity did not make the search unlawful.

 

Conclusion

In keeping with the above, the motion to suppress evidence will be denied. An Order will accompany this Opinion.


March 17

STUMP THE CHUMP

Dear Chump,

Some troops believe that it is acceptable to order people out of the car on a stop and then pat them down, simply because they are now out of the car, absent reasonable articulable suspicion that they are armed or in the midst of committing a crime. We know the answer, but since “no prophet is accepted in his hometown” (Luke 4:24), we thought it best to pass the buck to the Esteemed Esquire. Please advise on the requirements to remove (none - Pennsylvania v. Mimms) and pat down (reasonable suspicion - Terry v. Ohio) the occupant(s) on a car stop and provide any case law where evidence was thrown out for the described conduct.

Thank you Sir,

The Profitless Prophet

Prophet:

You hit the nail on the head:

“to justify a frisk under [Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] the officer must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Such a frisk, permitted without a warrant and on the basis of reasonable suspicion less than probable cause, must always be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby. This Court also recognized in Commonwealth v. Myers, 1999 PA Super 41, 728 A.2d 960 (Pa. Super. 1999), that."to justify a frisk incident to an investigatory stop, the police need to point to specific and articulable facts indicating the person they intend to frisk may be armed and dangerous; otherwise, the talismanic use of the phrase 'for our own protection, '… becomes meaningless." Id. at 963. Commonwealth v. Preacher, 2003 PA Super 245, 827 A.2d 1235, 1239 (Pa. Super. 2003) "

Where things get a bit more complicated is the fact that officers do NOT need additional reasonable suspicion to order driver or passengers out of the car on the stop. BUT, to do a subsequent Terry frisk, reasonable suspicion remains their burden.

Chris "The Chump" Boyle

And Happy Saint Patrick's Day to all of you. Remember why it is that God made alcohol – So we Irish wouldn't take over the world! Enjoy the day safely friends.
CB

☻♪☺♥♫□☻♪☺♥♫□

COMMENT: Today's case is, to be fair, a bit long but, if you have time, read the whole thing. It's an excellent discussion of the law regarding stop and frisk. For those of you too busy to do so because you are saving old ladies from burning buildings, taking orphans for ice cream or incarcerating America’s Most Wanted, I have highlighted a reasonable amount to get through. Pay particular attention to the part that I have also put in italics. It answers the age old question – is paperwork important? Well, does a bear defecate in the forest? Hellz yeah, paperwork is important. Officer Powell looks, momentarily, like he isn't being completely forthright. I doubt that is the case, but he would no doubt like to have a time machine to go back to March 28, 2016, and add at least one more important point to his paperwork. And , there, ladies and gentlemen, endeth the lesson…

United States v. Bey, 2017 U.S. Dist. LEXIS 30999 (E.D. Pa. March 6, 2017)

Defendant Muadhdhin Bey is charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Bey moves to suppress all physical evidence and statements derived as a result of the warrantless stop and search that led to the discovery of the firearm. On consideration of Bey's motion, the government's opposition thereto, the parties' supplemental briefs, and after an evidentiary hearing, the Court finds as follows:

I. FINDINGS OF FACT

A. Vehicle stop at 1600 Point Breeze Avenue

At approximately 10 p.m. on March 28, 2016, Philadelphia Police Officers William Fritz and Brandon McPoyle, who were on routine patrol in the City's 17th Police District,1 working in full uniform and driving a marked patrol car, observed the driver of a Buick LaCrosse roll through a stop sign as he turned west from 19th Street onto Tasker Street. The officers pulled the car over at 1600 Point Breeze Avenue, between Tasker and Fernon Streets, and parked behind it.


FOOTNOTES

1 The 17th District is bounded at the south by Morris Street, at the north by South Street, at the east by Broad Street, and at the west by the Schuylkill River.

 

Fritz and McPoyle got out of their patrol car and approached the Buick, Fritz on the driver's side and McPoyle on the passenger side. Fritz saw three men in the car — a driver, a front passenger, and a rear passenger on the driver's side — and noticed that none of them were wearing seat belts. The officers obtained driver's licenses or identifications from all three men, thus learning that the driver was Albert Lee, the front passenger was Amir Robinson, and the rear passenger was Lionel Burke. The officers returned to their patrol car and performed a warrant check on the three men, which proved negative.

On returning to the Buick, the officers smelled marijuana and noticed remnants of marijuana on the floorboard of the car. The officers decided to remove all three men from the vehicle, beginning with the rear passenger, Burke. Fritz escorted Burke to the rear of the Buick, where McPoyle performed a frisk. As McPoyle was frisking Burke, Fritz saw a .25-caliber Beretta handgun on the rear floorboard of the car, where Burke had been seated. Fritz retrieved the handgun and instructed McPoyle to handcuff Burke. Before McPoyle could handcuff Burke, however, Burke fled, running northbound on Point [*3] Breeze Avenue. McPoyle gave chase on foot. Fritz watched as McPoyle ran after Burke, losing sight of them after they both turned east on Tasker Street.

When Fritz turned back to face the Buick, he saw that the vehicle's front passenger door was now open. The front passenger, Robinson, was no longer in the vehicle. Fritz glanced southbound on Point Breeze Avenue but could see no sign of Robinson. The arrangement of the intersection led Fritz to infer that Robinson must have fled west on Fernon Street.

Fritz turned back to the Buick and saw that the driver, Lee, was still seated in the front of the vehicle. Fritz handcuffed Lee, placed him in the patrol car. Returning to the empty Buick he saw a second firearm at the foot of the front passenger seat where Robinson had been seated and retrieved this second firearm.

Fritz was still in possession of the three men's driver's licenses. He knew, from those licenses and his observations, that the fleeing rear passenger was Burke and the fleeing front passenger was Robinson. Robinson's license contained his full name, photograph, date of birth, address, and height.

Fritz testified at the suppression hearing that he had been able to observe Robinson during the vehicle stop, albeit with a "limited vantage point" (since he had been standing on the Buick's driver's side), and had seen that Robinson was a black male of average build, wearing a red hoodie or red jacket. Fritz testified that he was unable to see Robinson's legs from his vantage point.

B. Radio broadcasts by Officers Fritz and McPoyle, 10:00 - 10:03 p.m.

At 10:00:54 p.m., as McPoyle was running after Burke, Fritz broadcast over police radio that there was a foot pursuit northbound at Point Breeze Avenue and Reed Street (the "Initial Dispatch"). After some radio interference and responses from other police units, the dispatcher instructed: "everybody stay off the air." Around 10:01:30 p.m., McPoyle came on the air to report that he was chasing a black male. Just after 10:02 p.m., McPoyle broadcast that he had the male in custody at 2100 Fernon Street. Around 30 seconds later, Fritz broadcast that he had "a gun recovered and the passenger bailed . . . ."

At this point, there was some confusion over police radio as to how many passengers were still fleeing the car stop. After questioning by the dispatcher, Fritz stated: "My partner ran after Lionel Burke. The passenger we're looking for is Amir Robinson." This was just after 10:03 p.m.2

2 The confusion continued until just after 10:06 p.m. Between 10:03:30 p.m. and 10:05 p.m., the police dispatcher was broadcasting questions about whether any injuries had been sustained during McPoyle's foot pursuit and whether all of the Buick's passengers were accounted for. Just after 10:05 p.m., despite Robinson being on the run, the dispatcher broadcast: "You have both of them. It looks like everyone's accounted for now." Around 10:06:30 p.m., after receiving information that one passenger was still fleeing, the dispatcher broadcast: "Okay, they only have one male on Fernon Street."

C. Officer Madara responds to the broadcasts

In the meantime, other police units were responding to Fritz's Initial Dispatch reporting the foot pursuit. Among the responding officers was Officer John Madara, who was patrolling nearby in a marked vehicle. Madara arrived at the car stop around 10:04 p.m. On arrival, he spoke with Fritz. Fritz explained that there had been a car stop, he had recovered firearms, two passengers had fled, and one of them — Robinson — was yet to be apprehended. Fritz handed Madara Robinson's driver's license. Fritz's testimony is that he told Madara that Robinson was wearing a red hoodie or red jacket, and that Robinson had fled westbound on Fernon Street.

At 10:06:46 p.m., Madara broadcast the following information over police radio (the "First Description"):
OFFICER MADARA: We're looking for one male who's gonna be wearing a red hoodie. There will be further flashes.

DISPATCHER: Whenever you're ready.

OFFICER MADARA: His name is gonna be Robinson, Amir. It's gonna be a date of birth of 8-6-94, goes back to 1319 [inaudible] Street. He's wearing a red hoodie. Last seen westbound on Fernon Street.

After Madara broadcast the First Description, he spoke with Fritz again. Fritz gave Madara further descriptive information about Robinson, namely that he was wearing dark blue pants and looked about Madara's size "but skinnier." Madara is approximately 6' tall and weighed around 205 pounds in March 2016.

D. Officers Powell and Cherry respond to the broadcasts

In addition to Madara, Officers Ernest Powell and Philip Cherry, who were patrolling the area in a marked car and were at 2500 Morris Street (three blocks west and one block south of the car stop), responded to Fritz's Initial Dispatch. Powell turned on the patrol car's lights and sirens, and drove the wrong way up a one-way street to get to 1600 Point Breeze Avenue. On the way there, they heard Fritz's dispatch reporting that he had "a gun recovered and the passenger bailed."3 As they pulled up to the car stop, they heard the First Description (a fleeing male suspect by the name of Amir Robinson, wearing a red hoodie, born on August 6, 1994, last seen westbound on Fernon Street). Powell immediately spoke with Madara, who told him that the fleeing suspect was a black male, 6' to 6'1", about Madara's size but skinnier, around 160 to 170 pounds, wearing [*7] dark blue pants and either a red hoodie or a red jacket,4 fleeing westbound on Fernon or Morris Street. Powell did not recall if Madara relayed information about whether the suspect had a beard.

3 Powell responded to this dispatch, asking, "What was the passenger wearing?"

4 The parties dispute the content of the verbal description Madara gave Powell. At the suppression hearing, Powell testified that Madara told him Robinson was wearing a red jacket (as opposed to a hoodie). The arrest report and all of Madara's radio broadcasts describe Robinson as wearing a red hoodie.

Before Powell left the car stop, he saw a photograph of Robinson on the mobile data terminal ("MDT") in his patrol car. Although the photo Powell saw was not entered into evidence, a photo of Robinson dating from September 8, 2016 was. The latter photo shows that Robinson is a youthful, light-skinned black male. It also shows that, in September 2016, Robinson had a tattoo covering the front of his neck, a short moustache, narrow sideburns, and a small amount of facial hair underneath his chin.

Thus, by the time Powell left 1600 Point Breeze Avenue, he was aware of Robinson's full name, address, age, ethnicity, approximate height and weight, clothing, and had seen a photograph of him.

E. Officers Powell and Cherry proceed from the vehicle stop to Lid's Café

Powell and Cherry were only stopped at 1600 Point Breeze Avenue for a matter of seconds — enough time to receive the verbal description from Madara and to view the photograph of Robinson. They left the car stop just after 10:07 p.m. Because [*8] Powell thought a fleeing suspect might "go somewhere where [he] could blend in or get out like real fast," he drove to a nearby bar, Lid's Café ("Lid's"). Lid's is located at 2243 Tasker Street, one block northwest of 1600 Point Breeze Avenue. To reach Lid's, Powell drove north on Point Breeze Avenue and turned west on Tasker Street. It took Powell and Cherry less than a minute to arrive at Lid's from the car stop.

Within a minute after Powell and Cherry left the car stop, Madara radioed a second, more specific description of Robinson (the "Second Description"). This description was broadcast at 10:07:51 p.m.:
OFFICER MADARA: It's gonna be a red hoodie, dark blue pants, it's gonna be a black male about 6 foot 1, approximately 170 to 160. Last seen westbound either on Fernon Street or on Morris.

Before Madara was able to finish his broadcast, Powell radioed:
OFFICER POWELL: Priority. Sam-3. Gun recovered, one in custody.

F. Officers Powell and Cherry stop and search Bey

In the moments before Officer Powell radioed that he had "one in custody," he and Cherry had driven from the car stop to Lid's, which was still open for business and had people standing around outside. Powell saw Defendant Bey leaving from the side entrance.5 Bey, who had his back to the officers, was wearing a red hooded puffer jacket and black sweatpants. Bey did not appear to be out of breath and Powell could not see any bulges in his clothing.


FOOTNOTES

5 Lid's Café has two entrances: a front entrance, at the corner of 23rd and Tasker Street; and a side entrance on 23rd Street, a few feet north of Tasker Street. Powell testified that he saw Bey "coming out of the bar or like off of the step" in front of the side entrance.

 

Powell parked directly in front of Lid's, on the northeast corner of 23rd and Tasker. Both officers exited their patrol car and approached Bey — Powell with his firearm drawn. When he was about 15 to 20 feet from Bey, Powell ordered Bey to turn around and show his hands. Bey immediately complied, turning to face the officers with his hands raised. Although it was nighttime, the street lighting provided Powell with a clear view of Bey.

Powell told Bey that someone had run from the police, and the incident had something to do with a gun. The parties dispute whether Bey admitted to having a gun in his possession at this point. Although Powell testified at the suppression hearing that he asked Bey whether he had a gun, to which Bey responded, "It's in my waistband" (the "First Statement"), this alleged Statement was not memorialized in any written record. Powell first disclosed it during a meeting with the U.S. Attorney and an FBI agent in December 2016 — over eight months after Bey's arrest.6 The arrest memo, which was entered into evidence at the suppression hearing, does not include anything reflecting this alleged Statement. In relevant part, it states:
Police ordered the male to stop and show his hands to police. Police had their weapons drawn because of the nature of the job, a person with a gun. The male complied by dropping to the ground as ordered by police. Police conducted a safety frisk of the male, at that time police recovered a black in color tenifer finished Glock 37 .45 ACP handgun from his front waistband.

6 Powell testified at the suppression hearing that he met with the U.S. Attorney and an FBI agent in preparation for this case in December 2016. It was at that meeting that Powell first disclosed this alleged statement.

At a preliminary hearing on state charges in the Philadelphia Court of Common Pleas, Powell, testifying on direct examination about Bey's arrest, stated as follows:
COUNSEL: Officer, did you recover anything from the defendant that evening?
POWELL: I did.
COUNSEL: What did you recover from him?
POWELL: A black and tenifer in color Glock .45 ACP caliber handgun. With permission to refer, Serial Number KZH962, loaded with one chamber round and eight additional live rounds in the accompanying magazine.
COUNSEL: Officer, where was that recovered from?
POWELL: The defendant's waistband.
COUNSEL: Could you see the firearm when you first observed [*11] the defendant?
POWELL: No, I could not.

On cross-examination at the same hearing, Powell testified:

COUNSEL: You first encountered [the defendant] coming out of a bar; is that correct?
POWELL: Yes, sir.
COUNSEL: And when you had stopped him he made no attempt to run, correct?
POWELL: Correct.
COUNSEL: And I think you candidly said that at the time that you first encountered him you could not see the gun; is that correct?
POWELL: That is correct, sir.
COUNSEL: Or you couldn't see a bulge that looked like a gun, correct?
POWELL: Correct. When I first saw the defendant his back was to me.
COUNSEL: Right. And it wasn't until you actually patted him down that you were able to feel something around his waistband; is that correct?
POWELL: I didn't feel the handgun until I patted him down from his waist, correct.
COUNSEL: And when you did pat him down, what did you feel?
POWELL: A handgun.
[. . . .]
COUNSEL: Okay. And he was on the ground at that time; is that correct?
POWELL: Correct, when I recovered the weapon.
COUNSEL: Yes?
POWELL: Yes, sir.

Given the importance of the alleged admission from Bey that a gun was in his waistband to any prosecution, and the incriminating effect of such an admission, the fact that it was not included in the arrest memo or mentioned in Powell's state court testimony — and only surfaced eight months after the arrest, during a meeting in preparation for this case — undermines the credibility of Powell's testimony on this point.

There is no dispute that after Bey put his hands up, Powell ordered him to lie on the ground and that he complied immediately, still with his hands raised. As Bey lay on the ground, either Powell or Cherry frisked him7 and removed a .45 caliber handgun from a holster inside the front of his waistband.

7 The record is inconsistent on which officer performed the frisk. At the suppression hearing, Powell testified that Cherry frisked Bey. At the preliminary hearing on state charges in the Philadelphia Court of Common Pleas, however, Powell testified that he frisked Bey.

It was then, just after 10:08 p.m., that Powell broadcast over police radio: "Priority. Sam-3. Gun recovered, one in custody." This was the radio dispatch that interrupted the Second Description broadcast by Officer Madara (describing the fleeing suspect as a black male around 6'1", approximately 170 to 160 pounds, wearing a red hoodie and dark blue pants, last seen westbound on either Fernon or Morris Streets). Given the timing of Powell's "priority" dispatch, the Court finds that Madara's Second Description was broadcast after Powell stopped Bey.

Once the handgun was recovered, Powell and Cherry placed Bey in their patrol car, at which point [*13] he asked the officers why he had been stopped. Powell responded that he was stopped because he matched the description of the fleeing suspect. According to Powell, Bey then made a second statement, responding: "I ain't running from no cops," and, "You're not going to put that gun on me. That ain't mine." (The "Second Statement.") The Second Statement was not included in either the arrest report or in Powell's state court testimony.

G. Bey is negatively identified

Madara testified that when he heard Powell's "priority" dispatch stating that he had a gun recovered and someone in custody, he drove to Lid's to provide Powell and Cherry with back-up and to see whether the person in custody was actually Robinson. According to Madara, when he arrived at Lid's between 10:08 p.m. and 10:09 p.m., Powell and Cherry told him that Bey was not Robinson. On being advised that it was a negative identification, Madara looked at Robinson's photograph on his MDT. Just after 10:09 p.m., he broadcast: "I'm on 23rd and Tasker. It's gonna be a different male than we're . . . We're still looking for Amir Robinson."

Powell offered a different account. According to Powell, he and Cherry drove Bey "back to the [*14] initial location . . . for the purpose of an identification," and it was back at the car stop that Bey was negatively identified.

Because Madara's account is consistent with the radio dispatch reporting his location at 23rd and Tasker Streets just after 10:09 p.m., the Court credits Madara's testimony on this point and finds that Bey was negatively identified outside Lid's, within one to two minutes of the stop.

II. DISCUSSION

The Fourth Amendment prohibits "unreasonable searches and seizures . . . ." U.S. Const. amend. IV. "Generally, for a seizure to be reasonable under the Fourth Amendment, it must be effectuated with a warrant based on probable cause." United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002) (citation omitted).

Under the exception to the warrant requirement established in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), however, "an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). "Any evidence obtained pursuant to an investigatory stop (also known as a 'Terry stop' or a 'stop and frisk') that does not meet this exception must be suppressed as 'fruit of the poisonous tree.'" United States v. Brown, 448 F.3d 239, 244 (3d Cir. 2006) (citations omitted).

Powell [Bey, actually] seeks to suppress all physical evidence and statements derived as a result of the stop and search, contending that Powell lacked reasonable suspicion in violation of the Fourth Amendment. "As a general rule, the burden of proof is on the defendant who seeks to suppress evidence. However, once the defendant has established a basis for his motion, i.e., the search or seizure was conducted without a warrant, the burden shifts to the government to show that the search or seizure was reasonable." United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995) (citations omitted). The applicable burden is proof by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 178 n.14, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974).

A. When was Bey seized?

The initial step of a Fourth Amendment suppression analysis is determining the moment of seizure. The moment Bey was seized is the moment "the Fourth Amendment becomes relevant." Terry, 392 U.S. at 16; see United States v. Torres, 534 F.3d 207, 210 (2006).

Bey argues that he was seized the moment he complied with Powell's command to turn around and raise his hands. The government responds that the seizure occurred when Bey complied with Powell's command to lie on the ground. The difference in the parties' characterizations is significant because anything Bey did or said after the moment of seizure does not factor into the reasonable suspicion analysis. "Reasonable suspicion is always evaluated as of the moment of seizure, and [courts] cannot consider facts that develop after that moment." United States v. Lowe, 791 F.3d 424, 436 (3d Cir. 2015).

A seizure occurs for [*16] Fourth Amendment purposes "when there is either (a) 'a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful,' or (b) submission to 'a show of authority.'" Brown, 448 F.3d at 245 (quoting California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991)). "'The test for existence of a show of authority is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person.'" Id. "[I]f a suspect in the absence of physical force does not submit to an officer's show of authority, there is no seizure and no Fourth Amendment claim." Id. at 245.

Here, there was a clear show of authority when Powell approached Bey with his gun drawn and ordered him to turn around. This command would have conveyed to a reasonable person that he was being ordered to restrict his movement. Bey submitted to that show of authority when he immediately complied with Powell's command to turn around and raise his hands. See Lowe, 791 F.3d at 433-34. Bey's compliance was not momentary; he continued to comply with police commands throughout the stop and frisk. Therefore, Bey submitted to the officers' show of authority, and was seized for Fourth Amendment purposes, when he turned around with his hands raised.

B. Was the seizure based on reasonable suspicion?

Having determined when the seizure occurred, the next question is "whether the seizure was justified by reasonable, articulable facts known to [the officer] as of that time . . . ." United States v. Torres, 534 F.3d 207, 210 (3d Cir. 2008) (internal quotations omitted). The facts available to the officer at the moment of seizure determine whether it was supported by reasonable suspicion. Terry, 392 U.S. at 16, 27. "While reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop." Wardlow, 528 U.S. at 123 (quotations omitted).

Powell testified that the only reason Bey was stopped was because he was wearing a red jacket. The pertinent question, however, is not Powell's subjective reason for the stop, but whether "'a reasonable, trained officer standing in [Powell's] shoes could articulate specific reasons justifying'" the investigative stop. Brown, 448 F.3d at 247 (quoting Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir. 2003)).

"In evaluating whether a particular stop was justified, courts must look at the totality of the circumstances surrounding the stop." United States v. Bonner, 363 F.3d 213, 217 (3d Cir. 2004). A totality of the circumstances analysis warrants consideration of a number of factors, including: (1) the reliability of the information provided to officers that served as the impetus for the stop; (2) the reputation of the area in which the stop occurred for criminal activity; (3) the number of persons in the vicinity; (4) the time of day or night; (5) the suspect's behavior when the officers came into his purview; (6) the geographical and temporal proximity of the stop to the alleged crime; (7) the particularity of the description and the extent to which the suspect matched it; and (8) the officers' judgments and inferences, which may be based on their own common sense or may draw upon their training, experience, and expertise. See Wardlow, 528 U.S. at 124; Torres, 534 F.3d at 210; United States v. Brown, 159 F.3d 147, 149-50 (3d Cir. 1998); United States v. Goodrich, 450 F.3d 552, 561 (3d Cir. 2006); Bonner, 363 F.3d at 217; Robertson, 305 F.3d at 167.

1. Reasonable suspicion at the moment of seizure

a. Reliability of information provided by Fritz and Madara

As an initial matter, in cases where one officer conducts a Terry stop (Powell) based on information provided by another (Madara), "'a finding of reasonable suspicion to justify the stop require[s] the presentation of evidence by the government that the officer who [provided the information] had reasonable suspicion, not simply that it was reasonable for the arresting officer . . . to have relied on the [information provided].'" Brown, 448 F.3d at 248 (quoting [*19] United States v. Coward, 296 F.3d 176, 180 (3d Cir. 2002)). See also Rogers v. Powell, 120 F.3d 446, 453 (3d Cir. 1997) ("The legality of a seizure based solely on statements issued by fellow officers depends on whether the officers who issued the statements possessed the requisite basis to seize the suspect.") (emphasis in original).

Here, the information Madara received from Fritz was reliable. Madara knew that Fritz had interacted with Robinson first-hand before he fled the car stop, and therefore knew that the descriptive information Fritz provided was reliable. Additionally, Fritz handed Madara Robinson's driver's license, which Fritz had obtained directly from Robinson, and which supplied much of the information Madara broadcast in the First Description.

b. Reputation of the area for criminal activity, number of people in the vicinity, and time of day

Powell testified that the vicinity in which the seizure and car stop occurred is a "high crime, high priority area." This is supported by Madara's testimony, which characterized the area as affected by narcotics offenses, gang violence, and shootings. This evidence that Bey was stopped in a high crime area weighs in favor of a finding of reasonable suspicion. Wardlow, 528 U.S. at 124 ("[W]e have previously noted the fact that the stop occurred in a 'high crime area' [*20] among the relevant contextual considerations in a Terry analysis."); Goodrich, 450 F.3d at 561.

The government suggests that the fact the arrest was made "at night" weighs in favor of finding reasonable suspicion. A suspect's presence on the street at a late hour can indeed support a finding of reasonable suspicion, particularly in a high crime area.8 While 10 p.m. may be a late hour in the abstract, however, it is by no means an unusual time to be exiting a bar, particularly when other people are doing so as well. Cf. Goodrich, 450 F.3d at 563 (finding that the absence of other persons in the area supported reasonable suspicion). Simply being present near a bar's exit at 10 p.m., even in a high crime area — when there are other people around — does not support an inference of criminal activity under these circumstances.

8 See, e.g., Adams v. Williams, 407 U.S. 143, 147-48, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); Goodrich, 450 F.3d at 561-62 (finding, with respect to an 11:30 p.m. stop, that "[t]he lateness of the hour and the reputation of the area for criminal activity move this case closer to the elusive line separating constitutional from unconstitutional governmental action"); United States v. Starkey, 2014 U.S. Dist. LEXIS 158149, 2014 WL 5810659, at *5 (E.D. Pa. Nov. 4, 2014) (finding that 1 a.m. was "an hour late enough to raise an officer's level of suspicion when encountering a group of individuals walking down the street, particularly in a high crime area."); cf. United States v. Dupree, 2009 U.S. Dist. LEXIS 45296, 2009 WL 1475276, at *5 (E.D. Pa. May 27, 2009), aff'd, 617 F.3d 724 (3d Cir. 2010) (finding that 7 p.m. was not sufficiently late to support reasonable suspicion).

c. Bey's behavior and demeanor

Bey's behavior when he was observed by Powell was neither nervous nor evasive. Valentine, 232 F.3d 350, 357 ("'nervous, evasive behavior is a pertinent factor in determining reasonable suspicion."') (quoting Wardlow, 528 U.S. at 124). Powell testified that Bey was not out of breath as he exited Lid's. Moreover, as soon as Bey became aware of the officers' presence, he immediately complied with their commands. There is [*21] nothing to suggest that Bey's behavior, as observed by Powell prior to the seizure, offered any indication of criminal activity.

d. Geographical and temporal proximity of the seizure to 1600 Point Breeze Avenue

The geographical and temporal proximity of the seizure to the reported crime is highly relevant to the reasonable suspicion analysis. Goodrich, 450 F.3d at 562 (holding that a Terry stop within seven minutes and "one or two blocks" from a reported theft was temporally proximate and "in the immediate vicinity" of the crime); Brown, 159 F.3d at 150 (finding a stop occurring "near the crime scene," "a few minutes after the [report]," to be "in close proximity"); Starkey, 2014 U.S. Dist. LEXIS 158149, 2014 WL 5810659, at *5 (E.D.Pa. 2014) (finding a stop within five minutes and a few blocks away from a robbery proximate to the crime); cf. United States v. Dupree, 2009 U.S. Dist. LEXIS 45296, 2009 WL 1475276, at *5 (E.D. Pa. May 27, 2009), aff'd, 617 F.3d 724 (3d Cir. 2010) (finding that a stop seven blocks away from the crime scene was not geographically proximate).

Here, the seizure occurred close to the car stop six to seven minutes after Fritz's Initial Dispatch. Bey was seized one block northwest of 1600 Point Breeze, no more than seven minutes after Robinson fled. The location of the seizure was consistent with Robinson's reported direction of flight, i.e. westbound from Point Breeze Avenue on either Fernon or Morris Streets. [*22] Therefore, the timing and location of the stop weighs in favor of reasonable suspicion.

e. Particularity of the description and the extent to which it matched Bey

Finally, the description of the suspect and the extent to which Bey matched that description must be considered in the totality of the circumstances analysis. Goodrich, 450 U.S. at 560. "'To suffice, the description must permit the police to be reasonably selective in determining who to stop for investigation, and whether this may be said to be the case will depend upon how many persons are in the universe of potential suspects.'" Id. at 561 (quoting 6 Wayne R. LaFave, Search and Seizure § 9.5(g) (2004)).

Of critical importance in this case, therefore, is what Powell knew about the fleeing suspect when he came upon Bey exiting Lid's. At that point in time, Powell had heard broadcast over police radio the First Description, which relayed that the suspect was a man by the name of Amir Robinson, wearing a red hoodie, date of birth 8-6-94, last seen westbound on Fernon Street. He had also received a verbal description from Madara at the car stop, which added that Robinson was black, 6' to 6'1", about Madara's size but skinnier, around 160 to 170 pounds, wearing dark blue pants, fleeing westbound on either Fernon or Morris Streets. Powell testified that, as part of this verbal description, Madara told him that Robinson was wearing either a red hoodie or a red jacket. Finally, Powell had seen a photograph of Robinson. Thus, before Powell seized Bey, he knew Robinson's ethnicity, gender, date of birth, approximate height and build, direction of flight, and the fact he was wearing dark blue pants and either a red hoodie or a red jacket.

Although Powell testified that the only reason Bey was stopped was because he was wearing a red hooded jacket, we must consider only whether "a reasonable, trained officer standing in [Powell's] shoes could articulate specific reasons justifying" the stop. Brown, 448 F.3d at 247 (quoting Johnson, 332 F.3d at 206). Accordingly, even if the other descriptors did not factor into Powell's reasonable suspicion analysis, they are relevant here.

When Powell saw Bey exiting Lid's, Bey was facing away from the officers. From his vantage point, Powell could see that Bey was a black male wearing a red hooded jacket. A reasonable officer in Powell's position would have been able to see that Bey was wearing black sweatpants. Bey points to clothing description discrepancies — a red [*24] hooded puffer jacket as opposed to a red hoodie, and black sweatpants instead of dark blue pants — in support of his position that he did not match Robinson's description when the seizure was initiated.

The discrepancies between Robinson's description and Bey's appearance prior to the moment of seizure are, however, insufficient to render the stop unconstitutional. Starkey, 2014 U.S. Dist. LEXIS 158149, 2014 WL 5810659, at *5 ("[W]here there is some discrepancy between the [individual] stopped by the police and a general or vague description provided to the police, this discrepancy alone will not necessarily render the stop unconstitutional.") (emphasis in original);9 Goodrich, 450 F.3d at 560-61 (finding the stop of a woman and a man constitutional where an informant's tip described two women, in light of other factors justifying heightened suspicion).

9 In Starkey, the Court found the seizure of a black man, observed with two black women, constitutional where the radio dispatch described three black male suspects, in light of other group characteristics that aligned with the description and additional indicia of criminal activity. Starkey, 2014 U.S. Dist. LEXIS 158149, 2014 WL 5810659, at *5.

 

When Powell saw Bey, he observed a black male wearing a red hooded jacket and dark pants one block northwest of the car stop — a location consistent with Robinson's direction of flight — six to seven minutes after Robinson fled. Powell had not observed anyone fitting Robinson's description between the vehicle stop and Lid's. The description was sufficiently particularized to permit the police to be reasonably selective in [*25] determining whom to stop for investigation. It is not unreasonable that a police officer would perform an investigatory seizure of a black male wearing a red hooded jacket and dark pants under these circumstances, given the geographic and temporal proximity of the seizure to the car stop, and the fact that the location was a high crime area.

Bey likens this case to Brown, 448 F.3d 239, in which the Third Circuit reversed the district court's denial of a suppression motion based in part on discrepancies between the appellants and the description of the suspects. But the match in Brown was "wildly wide of target." Id. at 248. The Brown appellants exhibited vastly different physical attributes to the suspects,10 and — crucially — those discrepancies were visible to the officers before the moment of seizure, since the officer in Brown had a "brief conversation" with the appellants prior to seizing them. Id. at 243, 252. Here, by contrast, Bey was facing away from Powell at the stop's inception, and his appearance from the back generally matched Robinson's description.

10 The broadcast in Brown identified the suspects as African-American males between 15 and 20 years of age, wearing dark, hooded sweatshirts and running south on 22nd Street, where one male was 5'8" and the other was 6'. Appellants Brown and Smith were stopped roughly three blocks south of the crime scene as they came out of a store with cups of coffee. Brown, 448 F.3d at 242. On the date of the stop, Brown was 28 years old and Smith was 31 years old. Both had full beards, when the description included no mention of facial hair. The Third Circuit found that "the only thing Brown and Smith had in common with the suspects was that they were black." Id. at 248.

Moreover, the stop in Brown was based on a tip from a civilian who had not witnessed the crime, and which "would not have established reasonable suspicion in the [*26] mind of a reasonable, trained officer." Id. at 251. Since the tip was "insufficient on its own to support reasonable suspicion," it required "more information . . . to establish the requisite quantum of suspicion than would be required if the tip were more reliable." Id.

2. Whether the reasonable suspicion that Bey was Robinson was dispelled

"[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). "[T]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Id. The burden of showing that a seizure based on reasonable suspicion was sufficiently limited in scope and duration is on the government. Id.

"[T]he officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). "[T]he reasonableness of a detention may be determined in part by 'whether the police are diligently pursuing a means of investigation which is likely to resolve the matter one way or another very soon . . . .'" Michigan v. Summers, 452 U.S. 692, 701 n.14, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981) (quoting 3 Wayne R. LaFave, Search and Seizure § 9.2 at 40 (1978)). [*27] See also United States v. De La Cruz, 703 F.3d 1193, 1197 (10th Cir. 2013) ("Once reasonable suspicion has been dispelled, even a very brief extension of detention without consent or reasonable suspicion violates the Fourth Amendment.") (quotations omitted).11


FOOTNOTES

11 See also United States v. Davis, 430 F.3d 345 (6th Cir. 2005) ("The Fourth Amendment allows police to detain a suspect on reasonable suspicion only for as long as it takes for the police to test the validity of their suspicions . . . . Officers must act to confirm or dispel their suspicions quickly.").

The initial stop of Bey was justified at its inception. When Powell and Cherry seized Bey, they had reasonable suspicion to believe that he was Robinson. That suspicion justified them detaining Bey briefly in order to verify or dispel their suspicions that he was in fact Robinson. Royer, 460 U.S. at 500.

Bey points out that, physically, he is very different than Robinson, and that the differences would have been evident to Powell as soon as Bey turned around: at that point Powell would have been able to see that Bey was dark-skinned (as compared to Robinson who was light skinned), with a full beard (a description that was not contained in the information Powell had been supplied), approximately 200 pounds (much heavier than Robinson) and that Bey was significantly older than Robinson (32 years old on the date of the stop — over ten years older than Robinson). Powell had seen a photograph of Robinson on his MDT approximately one minute earlier, prior to leaving the car stop. A photograph of Robinson that was entered into evidence revealed that Robinson is a light-skinned black male of youthful appearance, with a tattoo covering the front of his neck, a short moustache, narrow sideburns, and a small amount of facial hair underneath his chin. The probative value of the photograph is, however, questionable, since it was taken over five months after Bey's arrest. The photograph Powell saw was not entered into evidence at the suppression hearing.

The actual photograph Powell saw was not entered into evidence and, given that the photograph that was admitted into evidence was taken months after the events at issue here, the Court cannot evaluate the differences between the photograph that Powell saw of Robinson and what Bey looked like when he saw him exiting Lid's.

Bey's argument would suggest that, since Powell knew the identity of the fleeing suspect, he should have conducted further investigation to determine Bey's identity prior to seizing him. But the Supreme Court has cautioned that "[t]he reasonableness of the officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. Such a rule would unduly hamper the police's ability to make swift, on-the-spot decisions . . . and it would require courts to indulge in unrealistic second-guessing." United States v. Sokolow, 490 U.S. 1, 11, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989) (quotations and citations omitted). Similarly, the Third Circuit has counseled that courts should be "reluctant to 'second-guess' investigative decisions made by officers in hot pursuit of criminal suspects." Robertson, 305 F.3d at 167 (quoting Valentine, 232 F.3d at 355); see also United States v. Edwards, 591 Fed. Appx. 156, 159-60 (3d Cir. 2014) (finding that reasonable suspicion did not evaporate as to appellant — the perpetrator of a bank robbery — when another suspect was incorrectly identified as the perpetrator, based in part on the investigation involving a "swiftly developing situation," and declining "on this record to second-guess the investigative decisions made by the law enforcement officers on the scene . . . .") (quotations omitted).

Accordingly, the seizure was justified at its inception, and the record evidence does not support a finding that reasonable suspicion was dispelled.

C. Was the frisk based on a reasonable belief that Bey was armed and dangerous?

The determination that the seizure was justified by reasonable suspicion does not end the inquiry, however. "The stop and the search are independent actions, and each requires its own justification." United States v. Gatlin, 613 F.3d 374, 378 (3d Cir. 2010) (citing Arizona v. Johnson, 555 U.S. 323, 326-27, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009)). Thus, even if the stop was justified by reasonable [*30] suspicion, the subsequent frisk of Bey's person must also have been reasonable under the Fourth Amendment.

A person subject to a warrantless Terry stop "may be frisked for weapons if the police have a reasonable belief that the person is armed and dangerous." United States v. Connolly, 349 Fed. Appx. 754, 756 (3d Cir. 2009) (citing Terry, 392 U.S. at 27). "In reviewing a . . . Terry frisk for reasonable suspicion, 'the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.'" Id. at 757 (quoting Terry, 392 U.S. at 27). The officer need not be "assured," however, that the suspect is armed. Terry, 392 U.S. at 27.

In the present case, Powell testified that after the moment of seizure but immediately prior to the frisk, Bey admitted to possessing a firearm. Specifically, on being asked by Powell whether he had a gun on his person, Bey allegedly replied, "It's in my waistband." A suspect's admission that he is armed can justify a search. See, e.g., United States v. Street, 614 F.3d 228, 234 (6th Cir. 2010); Broadnax v. Borough of North Plainfield, 2011 U.S. Dist. LEXIS 78924, 2011 WL 2971275 at *7 n.10 (D.N.J. July 20, 2011).

The credibility of Powell's testimony as to this alleged First Statement is questionable, as discussed supra. Regardless of whether Bey admitted to possessing a firearm in his waistband, however, the frisk was justified based on the officers' reasonable belief that Bey was armed and dangerous. Powell and [*31] Cherry were in pursuit of a suspect fleeing a car from which two firearms had been recovered six to seven minutes earlier, in a high-crime area known for gun violence and narcotics offenses. There is no dispute that the officers were aware that firearms were recovered from the car; both Fritz and the police dispatcher broadcast that fact prior to the moment of seizure. Powell indisputably heard Fritz's dispatch that he had "a gun recovered and the passenger bailed," since he responded by asking what the passenger was wearing.

Where "officers believe [a defendant] to have a firearm, they [are] permitted by Terry to conduct a limited search for weapons." Gatlin, 613 F.3d at 379. "[B]ecause the 'purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence,' the frisk (so long as it is conducted pursuant to a lawful stop) may be permissible 'whether or not carrying a concealed weapon violate[s] any applicable state law.'" Id. (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972)).

In the instant Motion, Bey argues that the officers "did not possess any information that he was armed and dangerous," noting that the suspect they were searching for had discarded his firearm on the front passenger floorboard of the Buick. But there is no evidence that Powell and Cherry knew this. Rather, they were responding to a report of a fleeing suspect who was running from a car in which guns were recovered. The presence of one weapon can inform a reasonable belief that a suspect possesses additional weapons. See, e.g., United States v. Yamba, 506 F.3d 251, 255 (3d Cir. 2007) (finding an officer's observation that a suspect held an open pocket knife to be a relevant factor justifying a search for additional weapons); United States v. Vinton, 594 F.3d 14, 20, 389 U.S. App. D.C. 199 (D.C. Cir. 2010) (holding that an officer who removed a knife from a suspect and placed it out of arm's reach was "justifiably concerned that additional weapons might be hidden elsewhere in the vicinity."); United States v. Christian, 187 F.3d 663, 669, 337 U.S. App. D.C. 402 (D.C. Cir. 1999) ) ("The presence of one weapon may justifiably arouse concern that there may be more in the vicinity."). Moreover, knowledge that a suspect was recently armed can support a reasonable suspicion that the suspect is presently armed and dangerous. See, e.g., United States v. Adamson, 441 F.3d 513, 521-22 (7th Cir. 2006). Accordingly, the government has met its burden of showing, by a preponderance of the evidence, that the frisk was reasonable.

The unfortunate fact that Bey was not, in fact, the suspect police were looking for does not change this conclusion. Once a lawful Terry stop is made, circumstances indicating that the seized suspect is armed and dangerous — including the extent to which the suspect fits the description of an armed and dangerous individual — can warrant a frisk for weapons. See, e.g., Kithcart III, 169 F.Supp.2d 369, 375 (E.D. Pa. 2001), aff'd, 34 Fed. Appx. 872 (3d Cir. 2002).

D. Should Bey's alleged Statements be suppressed?

Finally, Bey seeks suppression of both the First and Second Statements, in which he allegedly admitted to having a firearm in his waistband and denied that it belonged to him. Bey argues that these Statements must be suppressed as fruits of the unconstitutional Terry seizure. Bey is correct that both purported Statements occurred after the moment of seizure. Because neither the stop nor the frisk violated the Fourth Amendment, however, this argument is unavailing.

Assuming arguendo that the Statements were made, it is undisputed that Bey made them without being provided the warnings required when an individual is subject to custodial interrogation as per Miranda v. Arizona, 384 U.S. 436, 477-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). However, the government correctly argues that the Statements are admissible at trial because the factual circumstances that generated them fall under the public safety exception to Miranda, as articulated in New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984) (holding that, prior to advising a suspect of their Miranda rights, a law enforcement officer may ask questions of a suspect for the limited purpose of protecting the public from possible harm, and holding that those statements are admissible in evidence). See also United States v. Savage, 677 F.Supp.2d 756, 763-64 (E.D. Pa. 2009) (finding that even if the defendant's statement that he had a gun was made during a custodial interrogation and without Miranda warnings, the statement was admissible under the Miranda public safety exception).

Because the seizure was justified at its inception, reasonable suspicion was not dispelled, and the frisk was justified by a reasonable belief that Bey was armed and dangerous, the Motion is denied.