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April 9, 1987

United States of America
Donald S. Jones

The opinion of the court was delivered by: DIAMOND


 Before us is defendant's motion to suppress physical evidence. Finding that the arresting officers did not have reasonable suspicion to stop and frisk defendant, we grant defendant's motion and suppress all items seized from him at the time of his arrest.


 We held a hearing on defendant's motion to suppress on February 19, 1987. Since our disposition of this motion largely turns on our evaluation of the credibility of the witnesses and the plausibility of their testimony, we will recount the testimony in some detail.

 The government presented the testimony of the two arresting officers, City of Pittsburgh police officers Anthony Charles and Carlton Jones. Officer Charles testified that at about 10:30 P.M. on June 12, 1986, he and Officer Jones went to the intersection of Centre Avenue and Elmore Street to investigate a tip that two men with handguns planned to kill a drug peddler. (Suppression Hearing Transcript ("S.T.") 6). They met at least four to six other officers at that intersection. (S.T. 22).

 According to Officer Charles, in the General Store, which occupied one of the four corners (see defendant exhibit 8) two other officers, Walls and Drummond, stopped and searched a man, a Mr. Crews, who matched the description of one of the two suspected gunmen. (S.T. 7-8, 42). They found two handguns on Crews and arrested him. (S.T. 7-8). Officer Charles was present in the General Store when the search and arrest took place. (S.T. 8). While in the General Store this first time, Officer Charles did not notice the defendant, Mr. Jones. (S.T. 30).

 Officers Walls and Drummond left with Crews. (S.T. 9). Officer Charles followed them out of the General Store; he was the last police officer to leave. (Id.). He and Officer Jones remained behind on the sidewalk on the Elmore Street side of the corner to disperse the crowd that had gathered and to protect the other officers from bottle and rock throwers. (Id.).

 Officer Charles testified that while he was on the sidewalk, a woman approached him and told him that there was another man in the General Store with a gun. (S.T. 32-34). She gestured toward the store. As soon as she gave Officer Charles this information, she left. (Id. ; see also 69-70). Officer Charles did not recognize her and could describe her only as a middle-aged black woman. (Id.). When Officer Charles turned toward the store, in the direction the woman gestured, he saw the defendant, Donald Jones, standing at a video game inside the store, with his right side facing Officer Charles. (S.T. 9, 34). Mr. Jones was not behaving suspiciously. (S.T. 43). At this point, Officer Charles was eight to nine feet outside the door. (S.T. 9). Mr. Jones was two to three feet inside the door, approximately twelve feet from Officer Charles. (S.T. 10-11). The store's interior was well-lit. (S.T. 10).

 Officer Charles testified that he immediately saw a gun clip and the entire grip of a handgun at Mr. Jones' waistline, on the right side. (S.T. 11-12, 40-41). Mr. Jones was wearing a waist-length jacket that rose up as he bent over the video game, exposing the clip and the grip of the gun at his right side. (S.T. 13). Officer Charles then consulted with his partner Officer Jones, who was standing at their car, which was parked outside the General Store on Elmore Street. (S.T. 13; see defendant exhibit 8). They approached Mr. Jones, Officer Charles from the rear, his gun drawn, and Officer Jones from the right. (S.T. 13-16). Officer Charles ordered Mr. Jones not to move as Officer Jones took the gun, a .38 caliber Smith and Wesson revolver, government exhibit 2, from Mr. Jones' right side. (Id.). Officer Jones then conducted a full body search and found another revolver in Mr. Jones' front waistband, handcuffs hanging at his left side, a knife, three speed loaders, and eleven loose rounds of ammunition in Mr. Jones' trouser pockets. (Id.). Two to three minutes had elapsed since the first arrest occurred in the General Store. (S.T. 41).

 Officer Charles testified that Mr. Jones did not match the description of the two men described in the tip that initially brought the officers to the corner of Centre and Elmore. (S.T. 44, 50). Further, he testified that his own observation of the gun clip and gun grip at Mr. Jones' side, not the anonymous woman's tip, was the justification for the stop and search of Mr. Jones. (S.T. 54).

 On cross-examination, Officer Charles admitted that he did not mention this anonymous woman in his arrest report, nor did he recount the tip at the preliminary hearing on the state charges against Mr. Jones arising from this same incident or to the federal case agent. (S.T. 36-37). Officer Charles explained these omissions as an attempt to protect the woman. (S.T. 38).

 Officer Jones testified that he remained outside when Officer Charles first entered the store with Officers Walls and Drummond. (S.T. 57, 66). When he was about to enter their police car to leave, Officer Jones saw Officer Charles speaking with a woman. (S.T. 58, 69-70). On that night, Officer Jones did not recognize the woman, and at the hearing, Officer Jones could not describe her. (S.T. 69-70). After the conversation, Officer Charles relayed the tip to Officer Jones. (S.T. 59). Officer Jones looked into the store and saw a gun clip at Mr. Jones' side. (S.T. 59-60). At first, Officer Jones saw only the clip; the entire gun grip came into his view only when Officer Jones entered the General Store with Officer Charles and got a closer view. (S.T. 73-74). When Officer Jones reached Mr. Jones, Officer Jones immediately seized the gun at Mr. Jones' side. (S.T. 61-62). Officer Jones conducted the pat down that turned up the other weapons as Officer Charles held Mr. Jones at gunpoint. (S.T. 62-63).

 Both officers denied that the jacket Mr. Jones wore in court at the suppression hearing was the jacket he was wearing when arrested, though Officer Jones was uncertain. (S.T. 13, 71, 141). At the hearing, Mr. Jones had on a maroon windbreaker that hung loosely to below his hips, around the top of his thighs. The officers testified that the jacket Mr. Jones had on that night was shorter, waist length.

 The government introduced into evidence all the items seized from Mr. Jones. (Government exhibits 2, 3, 4). The gun and the holster with its clip that initially motivated the search are government exhibit number 2. The gun is silver-colored; its grip, a brown wood. The clip is silver, about three inches long and a half inch wide. When worn, the holster fits inside the pants, and the clip protrudes outside the pants and extends down towards the ground.

 For the defense, Donald Jones testified that he was in the General Store on June 12, playing Ms. Pac-Man, a video game. (S.T. 82, 85-86; defendant exhibit 8). To his right were a cigarette machine and then the door. (See defendant exhibits 4, 5). He witnessed the police arrest Mr. Crews as Crews was leaving the store. (S.T. 84). From where Mr. Jones stood, he could look through a window facing Centre Avenue. (S.T. 86-87). After the police left with Crews, Mr. Jones saw outside three ...

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