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January 28, 2000


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).

Findings of Fact*fn2

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 Id.

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 ...

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