The opinion of the court was delivered by: (Judge Rambo)
Before the court is Defendant Lavarr W. Orr's Motion to Suppress Nunc Pro Tunc. The issue has been briefed and a hearing was held on August 22, 2006. Thus, the matter is ripe for disposition. For the following reasons, the motion is denied.
On February 8, 2006, Defendant Lavarr W. Orr ("Defendant") was charged with possession of a stolen firearm in violation of 18 U.S.C. § 922(j). On April 10, 2006, Defendant pleaded not guilty to the indictment. Tom Thornton, Esq., was appointed counsel through the Federal Public Defender's Office.
On July 31, 2006, Defendant filed the instant Motion to Suppress Nunc Pro Tunc and a brief in support thereof. The United States filed its opposition brief on August 10, 2006. The court held a hearing on the motion on August 22, 2006.Testimony was taken from Sergeant Nicholas Figge, Officer Nick Hansel, and Defendant.
On February 23, 2004, at approximately 11:30 p.m., York City Police Sergeant Figge was seated in a marked police car at the intersection of South Street and Duke Street in the City of York. He saw a green Chevrolet Tahoe, with opaquely-tinted windows, drive north on Duke Street at a speed of 50 to 60 miles per hour. The legal speed limit in that area is 25 miles per hour, so Sergeant Figge activated his flashing lights, pulled out after the Tahoe, and radioed County Control to check the registration of the vehicle. The truck turned west onto Princess Street and pulled over, stopping in a legal parking spot. Sergeant Figge parked his vehicle, with lights still flashing, close behind the stopped truck.
After stopping the Tahoe, Defendant opened the driver's side door and put out his hands to show that he held nothing. Sergeant Figge instructed Defendant to stay inside the vehicle.
As to subsequent events, the testimony and evidence proffered by the United States differs from that proffered by Defendant. The facts as presented by each side are as follows.
1. Evidence from the United States
Sergeant Figge approached the truck. He saw that Defendant had not closed the driver's side door of the vehicle. The door remained open throughout the stop. Defendant sat in the driver's seat. Sergeant Figge stood with the open door to his left, facing Defendant as he got Defendant's identifying information. Upon recalling Defendant from previous arrests, Sergeant Figge called for back-up.
Approximately thirty seconds to a minute later, Officer Hansel pulled up. He parked his police cruiser close behind Sergeant Figge's vehicle and approached Sergeant Figge and Defendant at the open driver's side door of the Tahoe. When Officer Hansel arrived, Sergeant Figge returned to his car to run a warrant check. The report showed that Defendant had four warrants outstanding, three for summary offenses and one for a probation violation.
Sergeant Figge returned to the open door of the Tahoe and informed Defendant that he was under arrest. He told Defendant to step out of the truck and put his hands on the vehicle. Defendant complied. Defendant asked to lock the Tahoe using his keys, but was not allowed to do so. He asked the officers to lock the truck themselves. Sergeant Figge promised he would. The sergeant testified that he planned on using the power lock switch inside the Tahoe to secure the vehicle after completing the arrest. He did not need the keys.
Officer Hansel then performed a pat-down search. He did not remove anything from Defendant's person or clothing. Officer Hansel handcuffed Defendant, then took him back to the officer's vehicle. On the walk to Officer Hansel's car, Defendant repeatedly asked him to lock the truck. It took approximately one minute for Officer Hansel to escort Defendant to his police car, secure him inside, and walk back to the open driver's side door of the Tahoe.
When Defendant exited the vehicle, Sergeant Figge looked into the passenger compartment and saw a bottle of beer, open, in the cup holder on the dashboard of the truck. As he reached in to remove the bottle, Sergeant Figge saw three bullets in the open area of the console between the front seats of the Tahoe. Seeing the bullets made the sergeant suspect that a gun was also present inside the car. He opened the closed section of the center console, and discovered a .357 ...