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United States v. Focareta

July 25, 2006


The opinion of the court was delivered by: Conti, District Judge.


Defendant John Focareta ("defendant" or "Focareta") was indicted on August 2, 2005 on one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Pending before this court is a motion to suppress evidence filed by defendant on December 9, 2005. (Doc. No. 21). In the motion to suppress evidence, Focareta seeks to suppress a .45 caliber Taurus pistol, a pipe commonly used for smoking marijuana, and a baggie containing marijuana seized on July 3, 2005. On December 27, 2005, the government filed a response to the motion to suppress. A suppression hearing was held on April 3, 2006 and April 12, 2006. Defendant and the government submitted proposed findings of fact and conclusions of law and the record was closed on June 23, 2006.

On this 25th day of July 2006, the court makes the following findings of fact and conclusions of law with respect to defendant's motion to suppress evidence:

I. Findings of Fact

1. On July 3, 2005, Plum Borough Police Officers Michael DeMarco ("DeMarco") and Joseph DiMaria ("DiMaria") were on duty. Transcript of April 3, 2006 Suppression Hearing ("Tr. 1") at 8.

2. DeMarco has been a Plum Borough police officer for around two years and nine months. Tr. 1 at 7. DeMarco was a part-time police officer for the Edgewood Borough and Swissvale Police Departments for around two and a half years prior to his employment with Plum Borough. Tr. 1 at 7.

3. DiMaria is also employed as a police officer with the Borough of Plum. Tr. 2 at 2. DiMaria has been employed as full-time Plum Police Officer for approximately a year and a half. Tr. 2 at 2. Prior to his employment in Plum, DiMaria worked as a police officer, on both a full-time and part-time basis, for the Borough of Swissvale for four years. Tr. 2 at 3.

4. At approximately 2:46 a.m. on July 3, 2005, both DeMarco and DiMaria while on duty were in uniform and operating in marked Plum Borough police vehicles. Tr. 1 at 8; Transcript of April 12, 2006 Suppression Hearing ("Tr. 2"") at 5. DeMarco was on patrol in a marked vehicle, monitoring traffic at the intersection of Entrance Drive and Logan's Ferry Road. Tr. 1 at 8-9, 30. DiMaria, also in a marked vehicle, was located to the immediate right of DeMarco's marked vehicle, at the same intersection. Tr. 1 at 8, Tr. 2 at 4. DeMarco's car was facing towards the Allegheny River. Tr.1 at 12.

5. Blair Auto Sales ("Blair's") is located at 132 Coxcomb Hill Road and is approximately three to four hundred feet from the spot occupied by DeMarco and DiMaria on July 3, 2005. Tr. 1 at 9; Government's Ex. 2. Blair's is a low-end, used car dealership. Tr. 1 at 19; Tr. 2 at 6. Cars are sold in the price range of one hundred dollars to the low thousands of dollars. Tr.1 at 20. There is an access road, adjacent to railroad tracks, that runs behind Blair's. Tr. 1 at 12-13; Government's Ex. 2; Defendant's Ex. F. The access road is not paved, but made up of gravel and rocks. Tr. 1 at 14. The road does not appear to be constructed for regular vehicular use. Tr.1 at 16. Blair's was closed during the time of this incident. Tr. 1 at 84. From DeMarco's perspective at 2:46 a.m. on July 3, 2005, Blair's was located across the street and to the left. Tr. 1 at 9.

6. DeMarco had responded to calls of criminal activity at Blair's before on several occasions. Tr.1 at 18-19. DeMarco and DiMaria were aware that other officers had been called to Blair's. Tr. 1 at 18-19; Tr. 2 at 6-7, 62-63. Incidents of car theft have been reported by Blair's. Tr.1 at 18-19, 75; Tr. 2 at 6-7. In addition, there were also reports of thefts of firearms from Blair's. Tr. 1 at 18-19; Tr. 2 at 6-7. Reports of cars being broken into, windshields destroyed, and registration stickers being stolen were commonplace.

Tr. 1 at 18-19; Tr. 2 at 6-7.

7. While DeMarco and DiMaria were stopped at the intersection of Entrance Drive and Logan's Ferry Road, DiMaria noticed headlights on the road behind Blair's. Tr. 1 at 12; Tr. 2 at 5. DiMaria and DeMarco were both facing the river and Blair's Auto. Tr. 2 at 4. DiMaria told DeMarco that it appeared to him that someone was either pushing or driving a car behind the parked cars at Blair's. Tr. 2 at 6. DiMaria suspected that someone had broken into one of the cars in the lot at Blair's in order to steal it. Tr. 2 at 7. DiMaria did not specifically see any person trying to push a car out of Blair's or anyone walking through the weeds around Blair's. Tr. 2 at 40. The lights of the car, as observed by DiMaria, indicated that the car was traveling away from Blair's. Tr. 2 at 8. DeMarco, upon being informed of DiMaria's observation, proceeded to make a left-hand turn out of Entrance Drive and traveled on Logan's Ferry Road toward Blair's. Tr. 1 at 13, 42-43.

After arriving in front of Blair's, DeMarco made a right hand turn behind the building and proceeded to drive on to the access road next to the railroad tracks. Tr.1 at 13-14, 42-43.

8. At this time, neither DeMarco nor DiMaria had information that Focareta was wanted by the police, that a red Lexus was wanted in connection with any criminal activity, or that there was any criminal activity occurring at Blair's. Tr.1 at 39-40.

9. As DeMarco made his way towards Blair's, DiMaria drove his vehicle across Entrance Drive, onto Logan's Ferry Road and stopped his vehicle in the lane of traffic. Tr. 2 at 8. DiMaria then exited his vehicle. Tr. 2 at 8. DiMaria proceeded to walk down a footpath near a sign for the Logan's Ferry Volunteer Fire Department. Tr. 2 at 9. At the end of the path, DiMaria was located on a gravel path next to the train tracks that run behind Blair's. Tr. 2 at 9.

10. After traveling approximately 250 to 300 feet on the access road, DeMarco observed two males on the access road walking toward Blair's and away from a red Lexus automobile. Tr.1 at 15, 45. The Lexus was about forty feet in front of DeMarco's vehicle and the two men were closer--walking towards DeMarco. Tr.1 at 47. The Lexus did not have its lights on and the ignition was turned off. Tr.1 at 48. At the suppression hearing, held on April 3, 2006, DeMarco identified one of the two males as the defendant. Tr. 1 at 22. DeMarco stopped his vehicle about halfway between the Blair's building and the location of the red Lexus. Tr.1 at 15-16. The two men were about twenty feet from the red Lexus and walking toward Blair's. Tr.1 at 16.

11. As DiMaria cleared the footpath and approached the railroad tracks, he noticed a vehicle stopped about 15 to 20 feet to his left. Tr. 2 at 9, 38. The headlights on the vehicle were off. Tr. 2 at 10. DiMaria noticed DeMarco's police vehicle 60 to 70 feet to his left. Tr. 2 at 10. The overhead takedown lights on DeMarco's vehicle were activated. Tr. 2 at 10, 41. DiMaria observed two individuals silhouetted in the lights. Tr. 2 at 11, 41. DiMaria could hear DeMarco telling the two ...

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