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United States v. Burks

January 11, 2007

UNITED STATES OF AMERICA
v.
ANTHONY LEE BURKS



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

MEMORANDUM OPINION

Before the Court is defendant's Motion to Suppress Evidence (doc. no. 24). The Court conducted a hearing on said motion on November 9, 2006. After due consideration, the Court will now deny the motion.

Findings of Fact

There is no significant dispute of historical facts, although the parties disagree about the inferences that arise therefrom and their legal consequences. After careful review of all of the testimony and exhibits presented at the suppression hearing, see Transcript (doc. no. 36), and the parties' proposed findings of fact and conclusions of law, the Court makes the following credibility determination, findings of fact and conclusions.

Credibility Determination

City of Pittsburgh Police Officers David Honick and Paul Roetter testified consistently at the suppression hearing on behalf of the government; defendant did not testify. Although defendant demonstrated that some of the circumstances of his arrest as recounted at the suppression hearing did not make it into Officer Roetter's police report of the incident, said omissions were adequately explained by the officers and/or are immaterial to the issues presented in defendant's motion to suppress. Accordingly, the Court deems the testimony of Officers Honick and Roetter to be credible, and accepts said testimony as rendered. Based on that testimony, the Court finds as follows.

Historical Findings

1. On December 27, 2005, around 10:00 p.m., City of Pittsburgh Police Officers David Honick and Paul Roetter were patrolling Pittsburgh's North Side in their police cruiser as part of the Street Response Unit when they stopped a silver Misubishi Diamante sedan because the factory installed, rear center brake light in the rear window was inoperable.

2. In the car were the driver, Andre Frank, defendant Anthony Burks in the front passenger seat, and Eric Clancy, the right rear passenger. The officers called for back-up, and other members of the Street Response Unit quickly arrived on the scene.

3. As Officer Roetter approached the car, he noticed the right rear passenger remove something from his waistband and drop it to the floor, and advised Officer Honick of his observation. Officer Honick directed all of the occupants of the car to place their hands where the officers could see them, and they complied.

4. Officer Honick approached the driver's side, requested license and registration from Frank, and requested his consent to search the car. Frank consented, and read and signed a written consent form (a Pittsburgh Police Form 5).

5. Officer Roetter directed Clancy to step out, observed a firearm on the floorboards, and retrieved the black semi-automatic weapon from the car. When Clancy did not produce a permit on Roetter's request, Clancy was arrested. Officer Roetter did not include in his police incident report that he had questioned Clancy about a permit or that Clancy did not have one.

6. Officer Honick then approached the front passenger, defendant, and asked him for identification. Defendant was unresponsive and Honick told him to step out of the car.

7. When defendant stepped out, Officer Honick saw that his right coat pocket was weighed down to one side as if carrying a heavy object, and then he observed the outline of a firearm in the coat pocket, reached in and retrieved a Taurus Model PT-99, 9mm pistol. The firearm was loaded, cocked, and had a round in the chamber.

8. Officer Honick asked defendant if he had a permit to carry the firearm, and defendant remained unresponsive. Transcript at 14-15, 26, 28, 39. Thereupon, Honick arrested defendant for carrying a firearm without a license, as "John Doe."

9. The police report reflects that both Clancy and defendant were arrested and charged with carrying firearms without a license in violation of 18 Pa.C.S. § 6122(a) ("When carrying a firearm concealed on or about one's person or in a vehicle, an individual licensed to carry a firearm shall, upon lawful demand of a law enforcement officer, produce the license for inspection.").

10. Officer Roetter did not include in his police incident report that Honick had questioned defendant about a permit and that defendant did not answer, nor did he hear Officer Honick questioning defendant about the permit. Neither Honick nor Roetter had any specific explanation why their questioning of the men about permits to carry firearms did not make it into the police report, but the officers noted that the charges of carrying firearms without a license in violation of 18 Pa.C.S. § 6122(a) implied that the men had refused their requests to show permits.

11. Following the arrests, the officers warned the driver about the Mitsubishi's non- functioning rear center brake light, but did not issue a citation.

12. Officer Honick's training led him to understand that title 67 of the Motor Vehicle Equipment Code requires all factory installed lighting equipment to be in operating condition, including the rear center brake lights. Transcript, at 15, 22-24. Officer Honick would not pull an older car over for not having an operational center rear brake light if it did not come with one factory installed; he would only pull over those cars that had factory installed, center rear brake lights that were not functioning.

13. Officer Honick was not certain, but "off the top of his head" he believed the section of the Code requiring brake lights to be in working order was section 4303(b) of the Motor Vehicle Code, 75 Pa.C.S. § 4303(b). Transcript at 20.

14. Officer Roetter's testimony was similar, i.e., he believed that all brake lights had to be operational, including rear window mounted center lights, and that it was a violation of section 4303(b) of the Pennsylvania Motor Vehicle Code to operate a vehicle with any inoperable brake lights. Transcript at 56, 83-85, 88, 61-65.

Legal Framework

Generally, police officers are expected to stop vehicles -- and are justified in stopping vehicles -- on reasonable suspicion that the driver or the vehicle are in violation of traffic laws. See, e.g., United States v. Toney, 124 Fed.Appx. 713, 715 (3d Cir. 2005) ("Toney was operating a vehicle with an invalid license plate. Because of this traffic violation, Office Devine was justified in making the initial stop."), citing: Whren v. United States, 517 U.S. 806, 810 (1996) ("the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred" ); Delaware v. Prouse, 440 U.S. 648, 663 (1979) (holding that traffic stops are justified under the Fourth Amendment where the officer has a reasonable suspicion that either the motorist or the vehicle are in violation of the law); United States v. Moorefield, 111 F.3d 10, 12 (3d Cir. 1997) ( "It is well-established that a traffic stop is lawful under the Fourth Amendment where a police officer observes a violation of the state traffic regulations."); United States v. Kikumura, 918 F.2d 1084, 1092 (3d Cir. 1990) (traffic stop reasonable where officer observed defendant violating traffic code); and 75 Pa.C.S. § 6308(b) (authorizing police officers to conduct a traffic stop where there is a reasonable suspicion of a traffic code violation). The United States Court of Appeals for the Third Circuit recently canvassed the traffic stop law, and stated:

When one peruses the traffic-stop suppression caselaw, one is struck by how rarely a traffic stop is found to have been illegal. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court established a bright-line rule that any technical violation of a traffic code legitimizes a stop, even if the stop is merely pretext for an investigation of some other crime. And once a car has been legally stopped, the police may "escalate" the encounter by visually inspecting the interior of the car, and checking credentials and asking questions of the occupants. See United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003) ("After a traffic stop that was justified at its inception, an officer who develops a reasonable, articulable suspicion of criminal activity may expand the scope of an inquiry beyond the reason for the stop and detain the vehicle and its occupants for further investigation."). Courts give considerable deference to police officers' determinations of reasonable suspicion, see, e.g., United States v. Nelson 284 F.3d 472, 482 (3d Cir. 2002), and the cases are steadily increasing the constitutional latitude of the police to pull over vehicles.

United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006) (Fisher, J.; parallel citations omitted) (when a vehicle is illegally stopped by the police, no evidence found during the stop may be used by the government against any occupant of the vehicle; guns found in vehicle after ...


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