The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Defendant, Raymond M. Walker ("Walker"), was indicted by a Grand Jury on August 4, 2005, and charged with one count of Possession of a Firearm By A Convicted Felon, in violation of Title 18, United States Code, section 922(g)(1). Currently before the Court is Walker's pretrial motion to suppress. On January 13, 2006, the Court conducted an evidentiary hearing on the Motion to Suppress at which all parties were represented by counsel who presented and argued the issues skillfully and effectively. Brenda Davis, a retired PNC bank manager, and various members of the City of Pittsburgh Police Department, to wit, Sergeant Christopher Micknowski, Sergeant Aaron Beatty, and Detective Matthew Lebedda, testified on behalf of the government. Defendant, Raymond M. Walker, testified on his own behalf.
The central issue to be determined is whether Walker was subjected to a "mere consensual encounter" as the Government contends or to a "seizure" within the meaning of the Fourth Amendment jurisprudence under Terry v. Ohio, 392 U.S. 1 (1968), as argued by the defense.
At the conclusion of the suppression hearing, the record was left open at the request of the Government to potentially present additional witnesses. No additional witnesses were presented. On February 7, 2006, counsel returned to Court and presented oral arguments in support of their respective positions. The Court took the matter under advisement.
A transcript of the testimony adduced at the suppression hearing has not been transcribed to date; however, the Court is prepared to issue its Findings of Fact and Conclusions of Law based upon its notes, recollection, and hearing exhibits.
The Court will discuss primarily those basic facts which are relevant to the motion and except as otherwise indicated the following facts are basically unrebutted. Based on the testimony and evidence presented at the suppression hearing and the applicable law, the Court enters the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Criminal Procedure 12(d):
A. Testimony of Brenda Davis, PNC Bank Branch Manager
Shortly before 1:00 P.M., on the afternoon of February 3, 2005, Marshall Pollard, a security officer at PNC Bank, Homewood branch, informed Brenda Davis,*fn1 the PNC bank manager, that a woman*fn2 sitting in the waiting area of the bank lobby had told him that a black male was sitting in a brown/tan station wagon outside the bank and was going to rob it.*fn3
Ms. Davis looked outside, observed a black male sitting in an older station wagon which was parked directly in front of the bank on the opposite side of the street, took down the license plate number of the car, and then called 911.
Ms. Davis testified that she told the 911 dispatcher what the security officer had told her and she gave a description of the car parked outside the bank. Ms. Davis then told the bank tellers that she had called 911.
B. Testimony of Sergeant Christopher Micknowski
Sergeant Christopher Micknowski ("Micknowski")*fn4 testified that on February 3, 2005, he was assigned to uniform patrol, out of Zone 5, East Liberty station. On that day, a few minutes before 1:00 P.M., the police radio dispatch had given out a call that a black male, with a gun, was seated in a brown station wagon outside the PNC Bank, Homewood, and that the individual planned to rob the bank. Micknowski immediately responded to the call. Micknowski drove in his marked vehicle to the bank using a side alley, Formosa Way, and arrived less than a minute after dispatch. Micknowski testified that as he entered Formosa Way, he observed Walker sitting in the driver's seat of a brown station wagon outside the PNC Bank, but he did not think that Walker saw him approach as Walker appeared to be looking towards the bank.
Micknowski approached the passenger side of the vehicle on foot and noticed that the passenger window was opened slightly, there did not appear to be anyone else in the vehicle, and he could see that Walker had nothing in either of his hands. There was no gun in view.
Micknowski introduced himself to Walker, asked if he could talk to him. He told Walker that he was responding to a 911 service call, which had reported that the driver of the vehicle had a gun and was planning to rob the bank. Micknowski asked Walker if he was involved with the planned robbery; Walker responded that he was not. Micknowski then asked Walker to slide across the front seat of his vehicle and exit from the passenger side. Walker complied and once outside the vehicle, Micknowski asked Walker if he could "tap him down." Again, Walker consented and was cooperative.
During this conversation, Walker and Micknowski were facing each other. Once it was agreed that Walker would be patted down, Micknowski asked Walker to put his arms behind his back, with his fingers interlocked, and turn around. Again, Walker complied and Micknowski conducted a pat down of Walker. Micknowski asked Walker if he had anything illegal on him. According to Micknowski, Walker replied hesitantly "no," which raised Micknowski's suspicions.
Micknowski then asked Walker a direct question: "Is the gun in the car?," to which Walker responded "yes." Micknowski inquired "can I get the gun from the car?" Walker told him that the gun was in the trunk alongside of the spare tire. Micknowski testified that once Walker admitted there was a gun, he told Walker that he would handcuff him, both for the safety of Walker and Micknowski. According to Micknowski, Walker gave his permission for Micknowski to retrieve the gun.
After Walker was handcuffed, he was placed in the custody of Officer James Ganaway, a second officer who had arrived at the scene.*fn5 Micknowski retrieved the gun, which he found in the location where Walker said it was going to be.
Once the firearm was retrieved, Micknowski asked Walker several other questions, including whether Walker had a license to carry a firearm (which he did not) and his name and address. Walker volunteered that he was on parole for bank robbery. Walker was then placed in a police car and Micknowski and Officer Hubbard went into the bank to interview the bank manager.
Prior to entering the bank, Micknowski thought the information relayed to the 911 dispatcher came directly from the bank manager. Once inside, he learned that Pearl Harris had supplied the information to a security guard, who in turn conveyed the information to the bank manager.
After interviewing both Ms. Davis, the bank manager, and Ms. Harris, Micknowski decided that Walker should be interviewed by the City of Pittsburgh robbery detectives. Arrangements were then made for Officer ...