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UNITED STATES v. MATTHEWS

July 12, 1976

UNITED STATES OF AMERICA
v.
ELLIS WILLIAM MATTHEWS, JR., JEROME ARTIS



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Presently before the Court are motions of defendants Ellis William Matthews, Jr. and Jerome Artis for a judgment of acquittal and/or a new trial. On April 7, 1976, the jury returned a verdict of guilty to all four counts of the indictment charging both defendants in Counts I, II and III with bank robbery and larceny and in Count IV with conspiracy to commit bank robbery and larceny. The Court has determined that the defendants' motions are without merit and must be denied.

 Motion To Suppress Physical Evidence.

 Both defendants argue that the Court erred in denying their motions to suppress all evidence and testimony which resulted from their allegedly unlawful apprehension. At a pretrial hearing on both defendants' motions to suppress, Officer Michael Norman, a police officer in Lower Merion Township, testified that: On January 21, 1976, he was on duty at the Lower Merion Township Police Station, 17 East Lancaster Avenue, Ardmore, Pennsylvania. (Suppression Hearing 13). *fn1" At approximately 1:00 p.m., a police radio broadcast reported that three black males wearing coats had entered and taken money from the Haverford branch of the Bryn Mawr Trust Company on Lancaster Avenue, Haverford, Pennsylvania. (S. 14, 15). Officer Norman immediately entered his patrol vehicle and drove east on Lancaster Avenue proceeding in a direction away from the bank and toward Philadelphia. Upon approaching the intersection of Lancaster Avenue and Church Road, Officer Norman entered the center lane of traffic on Lancaster Avenue, intending to turn left onto Church Road, which was approximately two blocks from the police station and one mile from the Haverford branch of the Bryn Mawr Trust Company. (S. 15, 16). While stopped at a red light attempting to make the left-hand turn, he observed a rust colored Chevrolet Nova, driven by a black male who was wearing a print type shirt without a jacket -- the weather being very cold. The Chevrolet Nova pulled alongside of him on the right side in the curb lane. The driver, who had short, close-cropped hair and a mustache, turned and glanced at the officer several times. Deciding to follow and stop him, Officer Norman crossed into the right lane behind the suspect's vehicle, put on his red flashing lights and tapped his horn. (S. 17, 18). The suspect's car reduced speed slightly, then suddenly turned into the middle lane of traffic and into the westbound lane for oncoming traffic. The suspect's vehicle then made a left turn through a red traffic light at the intersection of Lancaster Avenue and Old West Wynnewood Road. (S. 23, 24). After several minutes of high-speed pursuit, Officer Norman observed two other black males rise up in the car. (S. 25). Officer Bowler of the Lower Merion Police Department, who had received a radio message that the fleeing car was headed in the direction of Montgomery Avenue and Winding Way, drove his police vehicle to that intersection, got out of his car and signaled the suspect's car to stop. The suspect's car did not stop, but headed directly at him. Officer Bowler jumped to the side of the intersection and shot out the right rear tire of the suspect's car, causing it to come to a stop. (S. 25 --28, 57 --61). The three occupants in the suspect's car were immediately placed under arrest.

 At the suppression hearing, the Government also established that: Following the arrest of Matthews, Officer Vagnozzi, who arrived at the scene in response to Officer Norman's radio message, observed that Matthews had bundles of money which had partially dropped out from under his shirt. (S. 33, 73, 76). Officer Vagnozzi removed the money, which was wrapped in Bryn Mawr Trust Bank wrappers. (S. 74). Officer Dunn, who also arrived at the scene in response to Officer Norman's radio message, stood outside the car and took photographs of its contents. (S. 81). These photographs show that a black plastic bag filled with United States currency was on the back seat of the car and that articles of clothing were on the front seat and on the floor. These items were visible to Officer Dunn from his position outside the car. Officer Dunn maintained surveillance of the car while it was towed to the police station garage, at which time Detective Metz, who then retained custody of the car, removed the articles of clothing and the black plastic bag. The bag was filled with United States currency in Bryn Mawr Trust Company wrappers, banking envelopes, and cards marked with the Bryn Mawr Trust Company name. (S. 89 --93).

 Officer Norman stated that he attempted to stop the vehicle because of his knowledge of the mode of escape used in connection with a previous bank robbery in Lower Merion Township, as well as information contained in a Pennsylvania State Police Bulletin with which he was familiar. In the previous robbery, the getaway car proceeded east on Lancaster Avenue toward Philadelphia and two subjects were hiding in the trunk of the car. The Pennsylvania State Police Bulletin described how bank robbers were switching cars in fleeing from the scene of the robbery and were hiding one or more of the robbers in the getaway car. (S. 18 --22).

 Based upon Officer Norman's familiarity with the contents of the State Police Bulletin, his personal knowledge of the mode of escape utilized in a previous bank robbery, the series of glances made by the driver and the fact that the driver did not appear to be wearing a coat despite the coldness of the day, the officer attempted to make an investigatory stop of the vehicle. (S. 17, 38, 39, 43, 44). The officer's attempt to stop the vehicle was initiated several minutes after the robbery and occurred roughly one mile from the scene of the robbery. (S. 21, 22, 51).

 Both defendants claim that Officer Norman's initial action constituted an investigatory stop and/or an arrest which they argue is a "seizure" under the Fourth Amendment. The defendants also contend that when judged by the standard of either probable cause or reasonableness, Officer Norman's "seizure" violates the Fourth Amendment. We do not agree with either contention.

 Officer Norman testified that he attempted to pull the vehicle off the highway by putting on the red flashing lights in his police car and tapping his horn. In response, the car started to reduce speed slightly, but instead of stopping, the car made a sudden turn, went through a red light, attempted to elude Officer Norman and other police cars which had joined in the case, and attempted to run down Officer Bowler. We hold that under the facts of this case there was no seizure of the car until Officer Bowler shot out the tires of the car at which time there was clearly sufficient probable cause for the seizure and the arrest of the defendants.

 In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889 (1968), the Supreme Court stated that a seizure occurs "whenever a police officer accosts an individual and restrains his freedom to walk away." In United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 2578, 45 L. Ed. 2d 607 (1975), the Court said "The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." *fn2" In the case at bar, defendants were never detained in any way nor was their freedom at any time restrained. *fn3" On the contrary, after reducing the speed of their car slightly, the defendants immediately led the police on a high-speed chase. The seizure did not occur when Officer Norman made the futile attempt to stop the car, but rather when the defendants' freedom was restrained by the shooting out of the tires of their car.

 However, even if Officer Norman's conduct in flashing his lights and sounding his horn were viewed as a seizure, his action would not have violated the Fourth Amendment. Although the Supreme Court has not developed precise standards to be applied to vehicular stops, in Terry v. Ohio, 88 S. Ct. at 1879, which considered the validity of a policeman stopping, briefly detaining and interrogating a pedestrian, the Court suggested a two point test in determining if a search or seizure meets the test of reasonableness: "wether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." In Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972), the Court elaborated on its holding in Terry as follows:

 
In Terry this Court recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. (Citation omitted).

 Thus, under the holdings of Terry and Adams,4 Officer Norman acted reasonably in attempting to pull over the defendants' vehicle in order to conduct an investigatory stop. See also, United States v. Richard, Criminal No. 75-136, filed April 9, 1976 (3d Cir.); United States v. Harris, 404 F. Supp. 1116, filed December 5, 1975 (E.D. Pa.). Officer Norman testified that the driver of the car glanced at him several times which "added" to his suspicion, that although it was a very cold day the driver was not wearing a coat, that he knew that the bank robbers were black and that the robbery had occurred minutes earlier approximately one mile from the place where he spotted the car.

 Motion To Suppress Artis' Post-Arrest Statement.

 Initially, Artis contends that the statement he made at the Lower Merion Township Police Station following his arrest should have been suppressed because it was the direct result of Officer Norman's allegedly illegal stop. Since we have already found that Artis was legally arrested subsequent to Officer Norman's unsuccessful attempt to effect an investigatory stop, this contention is without merit. Defendant further claims that he did not understand the Miranda warning given by Agent ...


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