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November 21, 2005.


The opinion of the court was delivered by: GUSTAVE DIAMOND, Senior District Judge


On February 8, 2005, a federal grand jury returned a one-count indictment against Sean Murphy ("defendant") charging him with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Currently before the court are numerous pretrial motions filed by the defendant.

A motions hearing was held before the court on June 8, 2005, at which time the court ruled from the bench on several of defendant's motions and took under advisement his motion to suppress physical evidence. A supplemental hearing was held on June 28, 2005, following which the parties were given the opportunity to file supplemental briefs. These briefs have now been filed.

  For the reasons which follow, the defendant's motion to suppress will be granted.

  I. Motions Resolved at Hearings

  At the hearing on June 8, 2005, the court ruled on all of the defendant's pretrial motions except his motion to suppress. Specifically, the court indicated it would: (1) grant in part and deny in part defendant's motion for discovery (Document No. 17) and his motion requesting notice pursuant to Fed.R.Evid. 404, 405, 406, 407 & 408 (Document No. 19); (2) deny as moot defendant's motion for notice by the prosecution of its intention to use evidence arguably subject to suppression (Document No. 20); and, (3) grant defendant's motion for disclosure of impeachment evidence (Document No. 21).

  At the supplemental hearing held on June 28, 2005, the court denied defendant's motion for a view (Document No. 27). The court's rulings on motions made at both hearings hereby are adopted as the court's formal and final rulings on those motions for the reasons stated on the record at those hearings. (Transcript of Motions Hearings 2-5; 175-76.)

  An appropriate order will follow.

  II. Defendant's Motion to Suppress Physical Evidence

  On the night of August 28, 2004, at approximately 10:20 p.m., officers from the Homestead Police Department, assisted by a number of Federal Drug Enforcement Agency ("DEA") task force officers, initiated on Browns Hill Road near the intersection of Beechwood Boulevard in Pittsburgh a traffic stop of a 1988 Mercedes Benz operated by defendant. The officers conducted the stop based upon information received in a radio bulletin issued by Officer Richard Szurlej and Trooper Michael Schmitt, who reported that they had witnessed defendant's vehicle proceed through a steady red traffic signal on the Homestead High-Level Bridge and continue across the bridge weaving through traffic at a high rate of speed.

  When defendant pulled to the side of the road and stopped, his passenger, Tarone Jones, exited the vehicle and fled on foot. The responding officers ordered defendant from the vehicle and onto the ground. A pat-down search of defendant resulted in the seizure of a Taurus .45 caliber firearm, approximately $1,000 in cash and a small bag of marijuana. Defendant then was placed under arrest.

  Defendant's motion to suppress physical evidence (Document No. 18) seeks suppression of all evidence, including the firearm, seized either from his vehicle or from his person in the course of the August 28, 2004, traffic stop. In addition, at the June 8, 2005, hearing, the court granted defendant's oral motion to amend his suppression motion also to seek exclusion of any statements defendant allegedly made after the stop. (Tr. 16.) Defendant asserts that the officers lacked probable cause to stop his vehicle because he had not committed any traffic violation justifying the stop and that any evidence seized as a result must be suppressed as the fruit of an illegal stop.

  Upon consideration of the testimony received at the hearings held on June 8, 2005, and June 28, 2005, as well as the parties' briefs, the court finds that the government has failed to meet its burden of proving by a preponderance of the evidence that the traffic stop in question was initiated upon probable cause that defendant committed a traffic violation. Accordingly, the court concludes that any and all evidence, physical or testimonial, obtained as the fruit of that illegal stop must be suppressed.

  The Fourth Amendment protects individuals from "unreasonable searches and seizures." United States Constitution, amend. IV. It is well-settled that the temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" within the meaning of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809 (1996). Accordingly, an automobile stop is subject to the constitutional imperative that it not be "unreasonable" under the circumstances. Id.

  The decision to stop a vehicle is reasonable where the police have probable cause to believe that a traffic violation has occurred. Id.; United States v. Moorefield, 111 F.3d 10, 12 (3rd Cir. 1997); see also Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (a law enforcement officer who observes a violation of state traffic laws is entitled to stop the vehicle that committed the violation). In order to effectuate a lawful stop of a vehicle, the government is not required to prove an actual violation of Pennsylvania law, rather the government need only prove probable cause that such a violation occurred. United States v. Davenport, 134 Fed. Appx. 523, 525 (3d Cir. 2005); United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995) (although actual violation of vehicle code need not be established, a reasonable basis for trooper's belief that the vehicle or driver is in violation is required to validate stop).

  Where, as here, the vehicle stop is made in reliance on a police radio request from other officers, a finding that the stop was reasonable is dependent on whether the officers who issued the request had probable cause to believe that a traffic violation had occurred, and not on whether it was reasonable for the stopping officers to have relied on the radio request. United States v. Coward, 296 F.3d 176, 179-80 (3d Cir. 2002); see also Whiteley v. Warden, 401 U.S. 560, 568 (1971) (although police officer may rely on representations of other officers when making arrest, officers requesting assistance must have sufficient information to show probable cause); United States v. Hensley, 469 U.S. 221, 232 (1985) (if flyer or bulletin is issued without reasonable suspicion, stop made in objective reliance upon it violates Fourth Amendment).

  As a general rule, the burden is on a defendant who seeks to have evidence suppressed to prove that it was seized illegally. Johnson, 63 F.3d at 242. However, once the defendant has established a basis for his motion, e.g., that the search or seizure was conducted without a warrant, the burden shifts to the government to show that the search or seizure was reasonable. Id.; see also Coward, 296 F.3d at 180 (government bears burden of proving existence of reasonable suspicion justifying a Terry traffic stop). Accordingly, the government bears the burden of proving in this case by a preponderance of the ...

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