The opinion of the court was delivered by: Judge Sylvia H. Rambo
Before the court is Defendant Antoine Ogarro's motion to suppress evidence. (Doc. 41.) The parties have briefed the issues, and the matter is ripe for disposition. For the reasons that follow, the court will deny Defendant's motion to suppress.
By Indictment filed December 17, 2003, Defendant was charged with unlawful possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On February 28, 2006, Defendant appeared before the Honorable J. Andrew Smyser and entered a plea of not guilty to the Indictment. Defendant filed the instant motion to suppress on March 20, 2006 and a hearing was held on April 25, 2006.
The following facts are based upon the testimonies of Officers John A. Savadia, Jr., Raymond R. Lyda, and Thomas Ryan of the Harrisburg Police Department.*fn1 On June 25, 2002 at approximately 2:15 a.m., Officer Savadia saw a van driving westbound in the 100 block of Market Street in downtown Harrisburg. (Hr'g Tr. 4-5). The 100 block of Market Street is one-way eastbound. (Id. 4-5.) Officer Salvadia executed a traffic stop. (Id. 5-6, 20.) Defendant got out of van and started walking towards Officer Salvadia's police car. Officer Salvadia ordered Defendant back into the van and called for backup. (Id. 6.) Officer Salvadia observed that there was a passenger in the van, and that the passenger was bending down in the front seat. (Id. 8.) Officer Salvadia approached the driver who produced a New York driver's license identifying him as Antoine Ogarro. (Id. 7.) Officer Salvadia ran Defendant's license to check for warrants and learned there was an active warrant for Defendant's arrest. (Id. 7.) Defendant was placed under arrest and removed from the van. (Id. 8-9.)
Soon thereafter, Officers Lyda and Ryan arrived. (Id. 7.) While Officer Salvadia was placing Defendant under arrest, Officer Lyda was watching the passenger of the van. (Id. 28.) The passenger door of the van was open and Officer Lyda observed the passenger attempting to hide a magazine from a gun under his foot. (Id. 28.) Officer Lyda yelled to his fellow officers to let them know about the magazine. (Id. 28.) The passenger, identified as Jackson, was removed from the van and secured in handcuffs. (Id. 29.) Officer Lyda observed that the magazine was loaded and believed that the companion gun for that magazine would be close by. ( Id. 29.) When Officer Ryan heard there was a magazine present, he also believed that a gun would be close. (Id. 37, 42.) Officers Lyda and Ryan began looking around the passenger compartment of the van for the gun. (Id. 29.)
Officer Salvadia looked in the front driver's seat area and saw, in plain view, a small baggie of marijuana near the seat runner. (Id. 11-12.) Officer Ryan saw a blue backpack behind the driver's seat. (Id. 39.) The backpack was partially open, and it in Ryan saw the grip end of a gun. (Id. 40.) That gun was a loaded Ruger revolver. (Id. 39.) Also found by Officer Lyda in the van was the .40 caliber pistol for the loaded magazine. (Id. 16.) Both Defendant and Jackson were placed under arrest and charged with drug and weapons offenses.
The van was not registered to either Defendant or Jackson. (Id. 14.) Officer Salvadia contacted dispatch which was able to contact the owner. (Id. 15.) The owner requested that the vehicle be towed. (Id.)
At the outset, it is noted that Defendant argued in his motion to suppress that both the initial stop and the subsequent search of the vehicle were unlawful. After the testimony at the hearing, however, counsel for Defendant conceded that the stop was "reasonable." (Id. 48.) Moreover, the court notes that "a stop to check a driver's license and registration is constitutional when it is based on an 'articulable and reasonable suspicion that . . . either the vehicle or an occupant' has violated the law." United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995) (quoting Delaware v. Prouse, 440 U.S. 648, 663 (1979)). In the instant case, Officer Salvadia observed the vehicle operated by Defendant driving the wrong ...