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United States v. Denson

October 31, 2006

UNITED STATES OF AMERICA,
v.
GARY LAMAR DENSON, DEFENDANT.



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

MEMORANDUM OPINION

Defendant Gary Lamar Denson ("Denson" or "defendant") was indicted on February 22, 2006, on one count of possession of firearm by a convicted felon, on or about July 1, 2005, in violation of 18 U.S.C. § 922(g)(1). Defendant filed a pretrial motion with this court on May 18, 2006. In the pretrial motion, defendant raised five (5) suppression issues related to defendant's arrest. The government filed a response to this motion on June 1, 2006. A suppression hearing was held on August 7, 2006.

At the hearing on defendant's motion for suppression, the court addressed the following arguments: 1) whether the warrantless search of a residence was without probable cause; 2) whether the consent to search the residence was obtained unlawfully and without knowing, voluntary and intelligent consent; 3) whether the search of defendant's person at the residence was without probable cause and was not a valid Terry pat down; 4) whether the detention of defendant following the search was an invalid detention; and 5) whether the interrogation of defendant, i.e., the questioning concerning whether defendant had a license to carry a firearm, was a custodial interrogation and a violation of defendant's Miranda rights. Id. at 36-37. Essentially, although five issues were raised, there were two main thrusts of defendant's arguments: whether a gun seized during the search of the residence at issue should be suppressed and whether the statements made by defendant in response to questioning by a police officer regarding a license to carry a firearm should be suppressed. Id.

The court heard testimony from Officer Phil Mercurio and Officer Robert Kavals. After hearing testimony and argument from counsel for both defendant and the government, the court ruled on four of defendant's challenges. Among other things, the court found that defendant did not have a privacy interest in the residence and, therefore, lacked standing to assert a Fourth Amendment challenge to the search of the residence and the seizure of the gun at issue. The court also found that the officers conducted a valid Terry stop when they encountered defendant in the residence and patted him down as there existed a reasonable suspicion that criminal activity was afoot. The only remaining issue relates to whether statements made by defendant in response to the officer's questions regarding a license to carry a firearm should be suppressed.

After the suppression hearing, defendant and the government each submitted proposed findings of fact and conclusions of law regarding whether certain statements made by defendant in response to questioning by a police officer regarding whether defendant had a license to carry a firearm should be suppressed. Defendant argues that the statements were made during an interrogation of defendant that was a custodial interrogation in violation of Miranda. The government disagrees and argues that the statements should not be suppressed because: 1) defendant's statements were made during a valid Terry stop; and 2) defendant's statements are subject to the inevitable discovery doctrine and are, therefore, admissible.

On this 31st day of October 2006, the court makes the following findings of fact and conclusions of law with respect to the remaining issue raised in defendant's motion to suppress evidence:

I. Findings of Fact

1. On July 1, 2005, at approximately 3:20 a.m., City of Pittsburgh Police Detectives Philip Mercurio, Robert Kavals and Robert Pires were patrolling the Homewood section of the City of Pittsburgh. Transcript of suppression hearing dated August 7, 2006 ("Tr.") at 7-9. The subject area is well-known to the officers as a high-crime area. Id. at 8, 41. In addition, the officers have made several arrests in the subject area for offenses involving both drugs and firearms. Id.

2. As the officers patrolled the area, in an unmarked car, they observed defendant standing in front of 615 Collier Street. Id. at 9. Defendant was approximately 50 to 60 feet away from the officers' vehicle. Id. Detective Mercurio noted that defendant, who was wearing a long white t-shirt, had a black semi-automatic pistol in the waist band of his pants. Id. As the officers turned onto Collier Street, defendant looked at the officers' vehicle, lifted his shirt to expose the handle of the pistol and ran into the front door of 615 Collier Street. Id. Upon entering the residence, defendant slammed the door shut. Id. The officers did not stop at this time, but instead continued driving down Collier Street. Id.

3. After passing defendant's location, Detective Mercurio, in order to conduct surveillance of defendant, exited the vehicle and stood behind a fence, which was across the street from defendant's location. Id. While Detective Mercurio conducted this surveillance, he noticed that defendant was again standing in front of 615 Collier Street. Id. Defendant still had his t-shirt tucked behind the semi-automatic pistol. Id.

4. Detectives Kavals, Mercurio and K-9 Officer Hartung gathered at the rear of 615 Collier Street. Id. at 11. Officer Pires conducted surveillance of defendant and advised his fellow officers that defendant was still standing outside of 615 Collier Street. Id. Detectives Kaval, Mercurio and K-9 Officer Hartung walked around the corner, identified themselves as police officers and asked to speak with defendant. Id. at 12. Defendant again fled into the residence at 615 Collier Street. Id.

5. After defendant ran into the house, Detective Kavals encountered the owner/resident (the "owner") of 615 Collier Street on the front porch. Id. at 13. After questioning the ownership of the subject property, Detective Kavals asked whether the owner knew the man who had just run into her residence. Id. The owner indicated that she did not know the individual. Id. Detective Kavals then asked the owner if he could enter the residence. Id. The owner gave the officers permission to enter her residence. Id. Further, the owner unlocked and opened the front door and gave the officers permission to search her residence. Id.

6. As Detective Kavals approached the living room area of the residence, he observed defendant walking out of the kitchen. Id. at 42. Detective Kavals, who had his weapon drawn, told defendant to raise his hands and patted down defendant at that time. Id. Defendant did not have a weapon on his person during this pat down search. Id. at 25. Immediately after the pat down and having been previously informed that defendant was seen in possession of a firearm by his fellow officers, Detective Kavals questioned defendant in a conversational tone whether defendant had a license to carry a firearm. Id. at 42, 44, 47. Defendant replied that he did not have a firearm. Id. Detective Kavals then repeated his question and defendant responded that he did not have a license to carry a firearm. Id. Additionally, defendant was unable to produce a valid license to carry a firearm. Id. At the time of this questioning, Officer Kavals acknowledged that defendant was not free to leave. Id. at 47-48. Defendant was not given Miranda warnings prior to Officer Kavals asking him whether he had a license to carry a firearm. Id. Following the question concerning whether he had a license to carry a firearm, defendant was taken to the threshold of the front door where Officer Hartung continued to detain defendant. Id. at 42.

7. After the pat down and the questioning about whether defendant had a license to carry a gun, Detective Kavals obtained permission to search the residence from the owner. Id. at 43. Upon obtaining permission to search the residence, Detective Kavals searched the kitchen area and found a black Colt Commander .45 caliber semi-automatic piston in the microwave in the kitchen. Id. at 42-43. The owner indicated that she neither owned ...


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