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U.S. v. SAMUELS

January 29, 2004.

UNITED STATES OF AMERICA
v.
JULIAN SAMUELS



The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge

MEMORANDUM AND ORDER

Defendant Julian Samuels is charged with: (1) possession with intent to distribute more than five grams of cocaine base ("crack") in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(b); (2) possession with intent to distribute more than five grams of cocaine base ("crack") within 1,000 feet of a school in violation of 21 U.S.C. § 860(a); (3) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); and (4) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Presently before the Court is Defendant's motion to suppress the firearm and bag of alleged narcotics obtained by the Government in this case. For the reasons set forth below, the motion to suppress is denied.

I. BACKGROUND

  Defendant contends that physical evidence seized from him on July 7, 2002 should be suppressed as he was illegally stopped and frisked without reasonable suspicion by Philadelphia police officers who had received an anonymous tip regarding a person with a gun. On December 18, 2003, the Court held a suppression hearing. Philadelphia Police Officers Charles Buck, Jermane Bennett and Dominic Cole were called by the Government to recount their version of the events of July 7, 2002. Ernest Moss, a bystander to the events in question, was called by Defendant. The Page 2 Government's version of the events differed dramatically from that presented by Defendant. After reviewing the supplemental briefs submitted and based on the testimony and evidence presented at the suppression hearing, I make the following findings of fact.

 II. FINDINGS OF FACT

  At 7:58 p.m. on July 7, 2002, Philadelphia Police Officers Charles Buck and his partner, Rashad Guess, received a radio report of a man with a gun at Arch and Edgewood Streets. (Dec. 18, 2003 Tr. at 4, 66, 78.) The radio report, based on an anonymous 911 call, described the man as heavy-set, "stocky" black male, wearing a blue baseball hat, blue jeans and a two-toned tan shirt. (Id. at 4.) Additional officers, including Jermane Bennett and his partner, Dominic Cole, also heard the radio call and proceeded to the area.

  All of the officers involved in the events in question were assigned to the Nineteenth District, which includes the corner of Arch and Edgewood Streets, an area that they all described as a high crime area with "a lot of violent crimes," (Id. at 3, 77), "shootings," (Id. at 64, 77-8) and "a lot of drug dealing." (Id. at 65.) Additionally, Officer Bennett recounted that a week or two before the events in question, he had responded to a radio call a half-block down from Arch and Edgewood, which involved a fatal gun incident. (Id. at 65-66, 71-72.) Similarly, Officer Buck explained that within weeks before Defendant's arrest at Arch and Edgewood, he responded to a gun report a few blocks away from that corner. (Id. at 61-62.)

  A few minutes after receiving the radio description, Officers Buck and Guess were the first officers to arrive at the corner of Arch and Edgewood. (Id. at 4, 22.) Officer Buck observed Defendant, a heavy-set black male wearing a blue hat, light blue jeans shorts and a two-toned tan Page 3 shirt. (Id. at 5, 24.) Defendant was located on the "lower" steps of the first house on the corner (Id. at 5, 7, 23) with his back towards Officers Buck and Guess. During this time period, Officers Bennett and Cole arrived on the scene. Officer Cole also reported that when he first saw Defendant, his back was facing Officers Buck and Guess. (Id. at 79-80.)

  Recognizing that Defendant matched the description in the radio report, Officer Guess asked to speak to him. Defendant ignored him and "remained facing away from [the officers] with his back toward [them]." (Id at 6-8, 23-4.) Then, Officer Buck called out to Defendant, but Defendant "failed to acknowledge again." (Id. at 8-9, 24, 32.) Officer Buck testified that after pausing on the steps, Defendant "then proceeded up the steps . . . towards the porch." (Id. at 9.) His back was still to the officers, who again tried to speak to him. (Id.)

  Officer Buck testified that throughout this sequence of events, Defendant appeared nervous (Id. at 9, 11, 38, 51, 58); he "appeared to be looking around, again, facing away from [the officers,] looking over at the other side of the porch, looking over the door area," (Id. at 10) and moved only his head and the upper part of his body. (Id. at 10, 38-39.) Defendant's conduct at this point led Officer Buck to believe that there was something in Defendant's waist that he did not want the officers to see (Id. at 11) which, in conjunction with the fact that Defendant matched the radio description, raised his suspicion. (Id. at 61.)

  Next, while Defendant was on the porch and Officer Buck was only some "five to seven feet" away at the middle of the steps, Officer Buck testified that Defendant "turned" and Officer Buck saw Defendant's waist for the first time. (Id. at 10-11.) Officer Buck "noticed a bulge around his waist area," under Defendant's untucked shirt. (Id. at 10, 48-49.) Although not certain the bulge was a gun, Officer Buck testified that "based on the circumstances leading up to that, Defendant Page 4 refused to speak to us, he appeared nervous. The job itself was a person with a gun matching his description and that led me to believe that there was something in his waist that he didn't want us to see." (Id. at 11.) Office Buck testified further that the bulge that he observed was located at Defendant's waist to the right of center, and that this location "would be the common place where you would find guns." (Id. at 11-12.) Upon seeing the bulge at Defendant's waist, Officers Buck and Guess "drew [their] weapons and asked the Defendant to put his hands on the wall." (Id. at 13, 60.) As Officer Buck explained, "if there was a gun we didn't want him to reach for anything and thought our safety at that time was possibly in jeopardy." (Id. at 13.) Similarly, Officer Cole testified that the only time Officers Buck and Guess drew their guns was when he heard one of the officers say, "he has a gun." (Id. at 80, 85.)

  In response to the officers' orders, Defendant initially continued his evasive pattern. Officer Buck testified that Defendant "didn't comply, he continued to kind of look around. He had his hands pretty much down by his waist area." (Id. at 13.) Although his right hand at one point had been on the wall, Defendant dropped it to his waist. (Id.) Officer Buck was concerned about the location of Defendant's right hand because it was located near where he had seen the bulge at Defendant's waist. (Id.) Officers Buck, Bennett and Cole all concurred that despite ordering Defendant to raise his hands, Defendant did not comply, rather his hands were "going up and down," "dropping to the sides," and grabbing something at his waist. (Id. at 15, 67, 68, 69, 82.) Although Officer Cole was positioned on the side of the house by the corner to ensure that Defendant did not jump over the railing, he stated that he could see the top portion of Defendant's body from that angle, which appeared to be "pacing" and "shifting" on the porch instead of complying with the officers' orders to put his hands up. (Id. at 82, 88-89.) In response to Defendant's failure to comply with the Page 5 officers' orders, Officers Buck and Guess approached him to grab his hands. (Id. at 14-15, 40, 46.) While the other officers briefly restrained Defendant's hands, Officer Bennett lifted Defendant's shirt, reached for the area where he had seen Defendant putting his hands, and removed a gun from his waistband. (Id. at 14, 69.) Thereafter, Defendant was taken into custody, patted down and searched. The officers recovered a brown bag in his left pocket that contained alleged crack cocaine as well as cash. (Id. at 16, 45.)

  To refute the testimony given by the officers, Defendant called Mr. Ernest Moss who was visiting a friend at the house on the corner of Arch and Edgewood on the date in question. (Id. at 96-7.) Mr. Moss stated that five minutes after Defendant arrived, Officers Guess and Buck arrived and "jumped [out of their car] with their guns out." (Id. 97-8.) Mr. Moss stated that he immediately put his hands in the air but, because the officers were not focused on him, he then drifted to the side of the house. (Id. at 99.) Mr. Moss stated that he believed one of the officers was going to start shooting. (Id.) Mr. Moss admitted on cross-examination that despite his fear, he remained standing at the foot of the steps near the officers. (Id. at 100, 103.) Mr. Moss testified that at this time, his female friend started screaming and Defendant raised his hands. Mr. Moss recounted that the officers said, "Freeze, don't move," to which Defendant responded "I didn't do anything," and thereafter, the officers grabbed, handcuffed, and searched Defendant. (Id. at 101.) Mr. Moss stated that he only remembered the officers recovering money and keys from Defendant. (Id. at 101, 106.) On cross-examination, the Government elicited that Mr. Moss has been convicted of assault, carrying a firearm, and a narcotics offense. (Id. at 107-08.)

  Faced with this contradictory testimony, the Court must determine "the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and Page 6 conclusions to be drawn from the evidence." United States v. Scarfo, 180 F. Supp.2d 572, 577 (D.N.J. 2001) (citations omitted); see also Government of the Virgin Islands v. Gereau, 502 F.2d 914, 921 (3d Cir. 1974). Defendant argues that common sense would support Mr. Moss's version of the facts, namely that police officers would naturally arrive with guns drawn at a scene reported to have a person with a gun. ...


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