The opinion of the court was delivered by: SIMMONS
Following a three count indictment for unlawful possession of an illegal firearm, the defendant, Michael Veatch, moved to suppress physical evidence stemming from an allegedly illegal arrest, search and seizure. A hearing was held on the defendant's motion. The testimony is contradictory; the defendant vigorously disputes the government's version of the facts. This case, therefore, pivots on the credibility of the witnesses and their stories.
On a fall afternoon in 1983, Police Officer Vince DeCarlo was conducting an undercover investigation of a jitney stand reputed as a fencing operation for stolen goods. DeCarlo observed Louis Wisensee emerge from the front passenger seat of a 1972, fire-engine-red, Chevrolet and enter the jitney station carrying several fishing rods. The defendant, Michael Veatch, owner and operator of the vehicle, and his brother, William Veatch, sitting in the rear seat, awaited Wisensee's return.
Officer DeCarlo observed Wisensee sell the fishing rods and then exit the jitney stand. While returning to Veatch's automobile, Wisensee, who had had prior brushes with the law, recognized DeCarlo as an undercover police officer, and hurriedly entered the awaiting vehicle, which sped away. DeCarlo gave pursuit. With the aid of two uniformed officers in a police van, who had responded to DeCarlo's radio call for assistance, Veatch's vehicle was quickly stopped and its occupants apprehended.
Prior to the arrest, the occupants were frisked for weapons. The frisk produced a live, 12-gauge shotgun shell from the front pocket of Veatch's trousers. When the officer discovered the shotgun shell, Veatch abruptly exclaimed: "I have a gun in the car!" The occupants were advised of their Miranda rights and a search of the automobile revealed a Harrington and Richardson, 12-gauge, single-barrel, shotgun. The weapon's shoulder and barrel were sawed-off and the serial number obliterated; the chamber contained one live round.
In his testimony, Veatch denied that Wisensee quickly fled the jitney stand and that the car was driven erratically and speedily to avoid apprehension. Veatch also disputes the basis of the arrest. Veatch denies that the occupants had been inhaling paint lacquer and that its fumes were emanating from within the stopped vehicle, but argues that the lacquer-filled bottle was found, not at the time of the arrest, but in a subsequent inventory search after the arrest.
In addition, Veatch disputes the government's version of the facts regarding the search of his car. Veatch testified that after he was placed under arrest, Officer DeCarlo immediately opened the trunk of Veatch's car and discovered the weapon. Veatch denies admitting ownership of the shotgun and that his Miranda warnings were given. Although Veatch acknowledges that he was frisked at the arrest scene, he avers that the shotgun shell was not found until a second frisk which occurred at the police station. Veatch testified that two uniformed officers, who knew Veatch and his brother, came to Veatch's cell after their incarceration, conducted a second search and discovered the shotgun shell.
This case requires no protracted factual or legal analysis. At the outset, it should be noted, the defendant paints an incredulous picture and this Court accordingly discounts his version of the facts. Although corroborated by a supposedly independent observer, this Court finds incredible Veatch's story that no chase occurred; the objective facts point to the contrary. Whether a chase occurred, however, is a question of fact to be determined by this Court from the totality of the circumstances.
Officer DeCarlo testified that when Wisensee recognized him as a police officer, Wisensee hurriedly returned to the awaiting car and Veatch speedily drove away. Wisensee was not called to testify. A seven year acquaintance of Veatch testified that he saw Veatch's car that fall afternoon traversing on North Avenue near the arrest scene, immediately prior to the arrest, and that he observed no evidence of a chase. Veatch testified that no chase occurred, but acknowledged that Wisensee recognized DeCarlo as a law enforcement officer and informed Veatch that the officer was closely following Veatch's car with his emergency lights flashing.
Absent purpose of evasion, Wisensee's statement to Veatch that they were being followed by a police officer, stands as an anomaly in the record. More telling evidence of a chase, however, is DeCarlo's request for assistance in stopping Veatch's automobile and the manner in which the car was stopped. Veatch testified that the officers boxed his car in with their service vehicles to impede his car's mobility. Moreover, there is no evidence to suggest that, absent evasion, Officer DeCarlo could not have singularly stopped Veatch's car or apprehended Wisensee ...