United States District Court, E.D. Pennsylvania
January 12, 2004.
UNITED STATES OF AMERICA V. ROGERS LOCKETT, III
The opinion of the court was delivered by: CYNTHIA RUFE, District Judge
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Upon consideration of Defendant's Motion To Suppress Physical Evidence
and Statements and the Government's response thereto, the Government's
proposed findings of fact and conclusions of law, and Defendant's
Supplemental Memorandum, and after a hearing thereon, the Court hereby
enters the following findings of fact and conclusions of law:
1. On Wednesday, February 5, 2003, at approximately 12:10 p.m., law
enforcement officers Carl Giardinelli, William J. Burdette and James
Corbett were working with a multi-agency drug interdiction task force
at the Amtrak 30th Street Train Station in Philadelphia, Pennsylvania.
2. Special Agent Giardinelli is and was at all times an agent of the
United States Drug Enforcement Administration ("DBA") where he has been
employed since March 1995.
3. Officer Burdette is and was at all times a corporal with the
Pennsylvania State Police assigned to the Bureau of Emergency and Special
Operations and then reassigned to DEA. He has been involved in narcotics
enforcement at various times throughout his seventeen years with the
Pennsylvania State Police. His duties while assigned to DEA have included
interdiction at airports, train stations and bus depots and have involved
numerous consensual encounters.
4. Officer Corbett is and was at all times a member of the Philadelphia
Police Department. He has been detailed to DEA since 1988. His duties
while with DEA have
included drug interdiction at airports, train stations and bus depots.
5. Special Agent Giardinelli, Corporal Burdette and Officer Corbett
were dressed in casual civilian clothes on February 5, 2003. They were
all armed with handguns, which were concealed beneath their clothing.
6. At approximately 12:10 p.m., Agent Giardinelli and Corporal Burdette
observed an African-American male wearing an orange shirt walking around
the train station waiting area and talking on a cell phone for
approximately 20 minutes. At approximately 12:30 p.m., the unidentified
male sat down on a bench and continued to talk on his cell phone. Shortly
thereafter, a second African-American male, later identified as Defendant
Rogers Lockett, sat down next to the first male in the orange shirt.
Lockett placed his bags, a rolling suitcase and a backpack, on the bench
as well. Then, the man in the orange shirt, while continuing to talk on
his cell phone, shook Lockett's hand and walked away.
7. Lockett remained seated on the bench, which was on the left side of
the train station. The waiting area inside the station is large, open and
well-lit, approximately one city block long. There are shops, restaurants
and kiosks on either side and behind where Lockett was seated. Directly
to Lockett's left was a hallway that leads into another large, open area
where bathrooms, Amtrak ticket offices and rental car offices are
located. Approximately twelve (12) feet in front of Lockett was another
row of benches and beyond that a stairwell leading down to a train
platform. Agent Giardinelli and Corporal Burdette were standing in the
center of the station, near an information desk and underneath a board
listing train departure and arrival times. At the time relevant to this
motion, there were many members of the general public in the station.
8. Agent Giardinelli and Corporal Burdette observed Lockett sitting on
the bench staring
glassy-eyed at the floor. The officers found it particularly strange that
Lockett did not react in any way when Officer Corbett interdicted an
Asian woman directly in front of Lockett.
9. After observing Lockett for approximately fifteen (15) minutes,
Agent Giardinelli and Corporal Burdette approached Lockett. Corporal
Burdette showed Lockett his badge, identified himself, and asked Lockett
if he would answer a few questions. When Lockett said "Yes," Corporal
Burdette sat down on the bench approximately two (2) feet to Lockett's
right. Agent Giardinelli remained standing a few feet to the right of
Corporal Burdette. No law enforcement officer was directly in front or to
the left of Lockett. Although Officer Corbett and Amtrak Police Officer
Scan Martin were in the vicinity, neither was closer than ten to fifteen
feet from Lockett and neither was in his field of vision.
10. In a conversational tone, Corporal Burdette asked Lockett some
questions about his travel. Lockett responded willingly and coherently to
the questions, telling Corporal Burdette that he was from Philadelphia
but was traveling to Boston. When Corporal Burdette asked to see
Lockett's identification and train ticket, Lockett handed him his ticket
to Boston and his college identification for Newbury College. Corporal
Burdette examined these documents and promptly returned them to Lockett.
11. After returning the ticket and identification, Corporal Burdette
explained to Lockett that he and Agent Giardinelli were looking for
contraband, including narcotics, large sums of money, guns and other
weapons and asked Lockett if he had any of these items in his possession.
Lockett said he did not.
12. Corporal Burdette then asked Lockett if the bag (the rolling
suitcase) on the seat next to Lockett belonged to him. Lockett admitted
the bag was his. Corporal Burdette then asked if
he could look in the bag, and Lockett said, "Yes."
13. Lockett then placed the rolling suitcase on the floor and started
to open it, but Corporal Burdette said, "That's okay, I can get that."
Lockett responded, "No, I'll get it," but Corporal Burdette repeated,
"No, that's okay, I can get it." Corporal Burdette then opened the bag.
14. Immediately after opening the suitcase, Corporal Burdette and Agent
Giardinelli saw three large plastic bags that contained numerous small
clear plastic bags, called nickel bags, which they knew are commonly used
to package illegal drugs. On one of the three larger bags was a picture
of a marijuana leaf. Upon seeing these nickel bags, Corporal Burdette
pushed the rolling suitcase over to Agent Giardinelli, who continued
searching through the suitcase.
15. While he searched the rolling suitcase, Agent Giardinelli asked
Lockett, "Are there any weapons in this bag?" and Lockett said, "No."
Agent Giardinelli then continued to searching the rolling suitcase while
Corporal Burdette continued talking to Lockett. Corporal Burdette asked
Lockett if the other bag (the backpack) belonged to him. When Lockett
said, "Yes," Corporal Burdette asked if he could search the backpack, and
Lockett said, "Yes" again. Lockett then handed the backpack to Corporal
Burdette, who began to open it.
16. At this point, a ring on Agent Giardinelli's finger hit a metal
object in the rolling suitcase. After feeling exactly what his ring hit,
Agent Giardinelli realized it was a gun and said, "Gun!" in a loud voice
so as to get the attention of Corporal Burdette and the other law
enforcement officers in the vicinity. Then, Corporal Burdette and Officer
Martin, who came over when he heard Agent Giardinelli yell "Gun!",
handcuffed Lockett and walked him from the public area of the train
station to the Amtrak police station a short distance away within the
building. The gun discovered by Agent Giardinielli was an Intertec
9mm semi-automatic uzi-type weapon with an obliterated serial number.
17. The entire encounter between Corporal Burdette, Agent Giardinelli
and Lockett, from the time Corporal Burdette and Agent Giardinelli first
approached Lockett through when Lockett was taken back to the Amtrak
police station, lasted approximately three minutes.
18. Several law enforcement officers, including Agent Giardinelli,
Corporal Burdette and Officer Corbett, accompanied Lockett to the Amtrak
police station where they handcuffed Lockett to a bench. Agent Giardinelli
and Corporal Burdette went to a back room and continued to search
Lockett's bags. Corporal Burdette physically searched through the bags
while Agent Giardinelli observed.
19. During this search at the police station, Agent Giardinelli and
Corporal Burdette found another firearm, a Bryco Jennings 9mm
semi-automatic pistol with an obliterated serial number, loaded with
twelve (12) live rounds, and a magazine for the Intratec containing
thirty (30) rounds of ammunition. They also found approximately one pound
of marijuana in the rolling suitcase. They found three notebooks and
pictures in the backpack. Two of these pictures were of Lockett and a
friend holding handguns to each other's heads.
20. Lockett never revoked his consent or otherwise communicated with
the officers that he no longer consented to the search of his suitcase or
21. Approximately two hours after Lockett was arrested, and after
Corporal Burdette and Agent Giardinelli completed their search of
Lockett's bags, Officer Corbett attempted to interview Lockett while he
was in the holding area, handcuffed to the bench. Before asking Lockett
any questions, Officer Corbett read Lockett his Miranda warnings using
DEA-13(a) Miranda form. Lockett said he understood his rights and agreed
to answer some questions.
22. Officer Corbett asked Lockett who owned the guns, and Lockett
responded, "The guns are mine." Officer Corbett then asked Lockett from
whom he obtained the firearms, at which point Lockett said he wanted to
talk to a lawyer. All questioning of Lockett stopped immediately.
23. At the time the first gun was found and Lockett was arrested, it
would have been standard procedure for the Philadelphia Police Department
and standard procedure for DEA to inventory Lockett's belongings to
ascertain whether they contained any valuables or money and to confiscate
any contraband, such as guns or drugs. After conducting this inventory,
the non-contraband belongings would be turned over to Lockett's
attorney, a member of his family, or whomever Lockett designated to take
possession of the items.
24. During the entire relevant period, from when Agent Giardinelli and
Corporal Burdette approached Lockett through when he asked for his lawyer
while Officer Corbett was questioning him, Lockett was calm, understood
the questions he was asked and answered them coherently. He was capable
of understanding his rights and making voluntary choices.
CONCLUSIONS OF LAW
1. The February 5, 2003 encounter between Corporal Burdette, Agent
Giardinelli and Defendant Rogers Lockett in the public area of the 30th
Street Train Station in Philadelphia, Pennsylvania was not coercive and
did not constitute a stop or seizure under the Fourth Amendment. See
generally Florida v. Bostick, 501 U.S. 429, 438 (1991) ("As we have
explained, no seizure occurs when police ask questions of an individual,
ask to examine the
individual's identification, and request consent to search his or her
luggage so long as the officers do not convey a message that
compliance with their requests is required."); United States v. Kim,
27 F.3d 947, 953 (3d Cir. 1994) ("potentially incriminating questions do
not by themselves make an encounter coercive"); United States v. Thame,
846 F.2d 200, 202 (3d Cir. 1988) ("a contact in which officers `simply
ask [if a defendant] would step aside and talk with them, [is] clearly
the sort of consensual encounter that implicates no Fourth Amendment
interest'") (quoting Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984)).
2. A reasonable person in Lockett's position would have felt free to
refuse to talk to Giardinelli and Burdette.
3. Because the encounter did not constitute a stop or seizure of
Lockett, Burdette and Giardinelli did not need reasonable suspicion to
approach and question Lockett.
4. Based on the totality of the circumstances, Lockett voluntarily gave
his consent by responding, "Yes" to Corporal Burdette's request to search
his rolling suitcase.
5. Based on the totality of the circumstances, Lockett voluntarily gave
his consent by responding, "Yes" to Corporal Burdette's request to search
6. Because Lockett voluntarily consented to the searches of his rolling
suitcase and backpack, any items discovered during these consensual
searches were lawfully obtained.
7. When Agent Giardinelli found the Intratec 9mm in the rolling
suitcase, the law enforcement officers had probable cause to arrest
8. Because the Intratec 9mm was discovered during a consensual search
of Lockett's rolling suitcase, it was lawfully obtained.
9. Rogers Lockett never revoked his consent to the searches of his
rolling suitcase and
backpack. Even if he had revoked his consent after he was arrested and
taken to the police station, the rolling suitcase and backpack would have
been legally searched pursuant to the standard inventory procedures of
the Philadelphia Police Department and DEA and as a valid inventory
search. See generally Illinois v. Lafayette, 462 U.S. 640, 648 (1983)
("[I]t is not `unreasonable' for police, as part of the routine procedure
incident to incarcerating an arrested person, to search any container or
article in his possession, in accordance with established inventory
procedures.") During these legal searches, the contraband material,
including the second gun, pound of marijuana, drug packaging and
paraphernalia, and ammunition found in Lockett's bags when Burdette and
Giardinelli searched them at the police station, would have inevitably
been discovered. Those items, therefore, are admissible under the
inevitable discovery doctrine. See Nix v. Williams, 467 U.S. 431 (1984)
("Exclusion of physical evidence that would inevitably have been
discovered adds nothing to either the integrity or fairness of a criminal
10. Lockett was not in custody until his arrest after Giardinelli
discovered the gun in his rolling suitcase.
11. Lockett voluntarily, knowingly and intelligently waived his
Miranda rights prior to saying, "The guns are mine," in response to
Corbett's question. When Lockett asserted his right to counsel after
Corbett's second question, Corbett properly stopped questioning Lockett.
See Brosius v. Warden, 278 F.3d 239, 250 (3d Cir. 2003) ("`[A]n accused
. . . having expressed his desire to deal with the police only through
counsel, is not subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused himself
initiates further communication, exchanges, or conversations with the
police.'") (quoting Edwards v.
Arizona, 451 U.S. 477, 484-85 (1981)): see also Miranda v. Arizona,
384 U.S. 436, 444 (1966) ("The defendant may waive effectuation of [his
Miranda] rights, provided the waiver is made voluntarily, knowingly and
intelligently. If, however, he indicates in any manner and at any stage
of the process that he wishes to consult with an attorney before speaking
there can be no questioning.")
AND NOW, this ___ day of January, 2004, upon consideration of
Defendant's Motion to Suppress Physical Evidence and Statement [Doc. #31]
and the Government's Response thereto [Doc. #35], the Government's
Proposed Findings of Fact and Conclusions of Law [Doc. #38], Defendant's
Supplemental Memorandum of Law [Doc. #39], and after a hearing on this
Motion, it is hereby ORDERED that Defendant's Motion is DENIED.
It is further ORDERED that all evidence obtained from the person or
personal belongings of Defendant Rogers Lockett, III, on February 5, 2003
shall be admissible in the Government's case against him in the
above-captioned matter, including, but not limited to, the following:
1. The Intratec 9mm semi-automatic uzi-type gun
with an obliterated serial number;
2. The Bryco Jennings 9mm semi-automatic pistol
with an obliterated serial number;
3. The magazine containing thirty (30) rounds of
ammunition for the Intratec 9mm;
4. The three large plastic bags and the smaller
5. The marijuana (approximately one pound); and
6. The statements, admissions and confession made
by Defendant up to his request for counsel.
It is so ORDERED.
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