The opinion of the court was delivered by: Ludwig, District Judge.
On April 29, 1999 defendant Mitchell Robertson was arrested by
a Philadelphia police officer and later was indicted for
possession of ammunition by a convicted felon,
18 U.S.C. § 922(g)(1).*fn1 He moved to suppress the seizure of the
handgun containing the ammunition. On December 6, 1999, upon
hearing, the motion was denied. Defendant changed his plea to
guilty, reserving the right to appeal the suppression ruling.
See United States v. Zudick, 523 F.2d 848, 851 (3d Cir. 1975).
On April 29, 1999, at 12:10 p.m., while on duty, Captain
Joseph Sullivan of the
Philadelphia Police Department responded to a radio call that
officers were in foot pursuit of two male robbery suspects, at
least one of whom was armed, in the area of 18th Street and 66th
Avenue. Tr. at 107. A second radio report described the men as
black, one wearing a white shirt and reddish pants, the other, a
white or gray shirt and blue jeans. Id. at 107-08. After
approaching the scene of the robbery and getting out of his car,
Sullivan briefly saw two men running east on 66th street. Id.
at 9, 10, 107. Believing that they fit the descriptions given,
he instructed his driver to follow them. Id. at 108.
At first, Sullivan lost sight of the men, but a motorist came
by and informed him that the men he was looking for had boarded
a SEPTA bus that was several blocks away on 66th street but
still visible. Id. Sullivan chased after the bus, stopped and
boarded it. Id. At the rear seat of the bus, in which there
were 12-15 passengers, Sullivan saw two men who he thought
corresponded to the descriptions of the robbery suspects.*fn3
When Sullivan made eye contact with defendant, the latter
removed an item from his waistband, reached over the passenger
seated next to him and placed it behind the seat in front and to
his right — on top of the wheel well. Id. at 109. In the
officer's opinion, based on his experience, defendant was trying
to rid himself of a concealed weapon. Id. Sullivan drew his
revolver, ordered defendant to lie on the floor — and a search
of the wheel well area disclosed a loaded handgun. Id.
Two other police officers who were present also testified
that, when arrested on the bus, defendant was wearing blue or
dark jeans and a gray or dirty white shirt with black lettering
on the front. Id. at 54, 90, 112-13. Corroborating Sullivan
further, these witnesses said defendant was not wearing a
jacket. Id. at 56, 90, 113. These descriptions are in contrast
with defendant's police headquarters photograph, which shows him
wearing a black T-shirt and a jacket. Id. at 112-13. Also, his
prison receipt lists a black T-shirt, black jeans, and a
multi-colored jacket. Id. at 85. Other than the lapse of time,
this clothing discrepancy was not explained in the testimony.
Id. at 113.
Whether a police pat-down and search of the adjacent area are
permissible under the Fourth Amendment is governed by Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As
articulated in that decision:
[T]here must be a narrowly drawn authority to permit
a reasonable search for weapons for the protection of
the police officer, where he has reason to believe
that he is dealing with an armed and dangerous
individual, regardless of whether he has probable
cause to arrest the individual for a crime. The
officer need not be absolutely certain that the
individual is armed; 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. And in determining whether the
officer acted reasonably in such circumstances, due
weight must be given, not to his inchoate and
unparticularized suspicion or `hunch,' but to the
specific reasonable inferences which he is entitled
to draw from the facts in light of his experience.
The sole justification of the search in the present
situation is the protection of the police officer and
others nearby, and it must therefore be confined in
scope to an intrusion reasonably designed to discover
guns, knives, clubs, or other hidden instruments for
the assault of the police officer.
Terry, 392 U.S. at 27-29, 88 S.Ct. at 1883-84.
Defendant questions whether the stopping of the bus was
warranted under Terry, conceding that if it was a valid stop
what occurred thereafter was lawful. Pointing to the disparity
between his police photograph and prison receipt and the
clothing description given by the police dispatcher, defendant
contends that the officer did not have reasonable, articulable
suspicion to stop him or, in turn, to stop the bus. His argument
is that he could not have been the person who was the subject of
the radio dispatch, given his attire when he was photographed
and, later, was admitted to prison. In effect, he disputes the
credibility of Sullivan and other officers as to what he was
wearing when they observed him.
The validity of the seizure of the handgun hinges on whether
the stopping of the bus and the confrontation with defendant
came within Terry's parameters. The question turns on whether
Sullivan had reason to believe that the two men who had gotten
on the bus were the robbery suspects. "While `reasonable
suspicion' is a less demanding standard than probable cause and
requires a showing considerably less than a preponderance of
evidence, the Fourth Amendment requires at least a minimal level
of justification for making the stop." Illinois v. Wardlow,
___ U.S. ___, 120 S.Ct. 673, 675, 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). Also, the determination of
"reasonable suspicion must be based on ...