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United States v. Ushery

December 12, 2007

UNITED STATES OF AMERICA
v.
RASHI ABDUL USHERY



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM

Presently before the court is the motion (Doc. 18) of defendant Rashi Abdul Ushery to suppress evidence seized during a warrantless search of the vehicle he was operating on June 24, 2007. The court held an evidentiary hearing on defendant's motion on November 29, 2007, after which the parties filed supplemental briefs in support of their respective positions. (See Doc. 28 at 1; see also Docs. 30, 31.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the motion will be denied.

I. Findings of Fact*fn1

On October 3, 2007, defendant was indicted by a grand jury. The indictment charges defendant with possession of cocaine base with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). (See Doc. 1.) On October 18, 2007, defendant entered a plea of not guilty to the indictment. (See Doc. 13.) The allegations in the indictment arise from the seizure of cocaine base after a search of the automobile driven by defendant. On November 18, 2007 defendant filed a motion to suppress the fruits of that search.

The search occurred in the pre-dawn hours of June 24, 2007, during which Officer Brant Maley ("Officer Maley") of the Penbrook Police Department was on patrol in a marked vehicle. (Doc. 28 at 5.) His police car was positioned on a side street intersecting Market Street Road in Penbrook Township. (Id. at 6.) The headlights of Officer Maley's vehicle were on high beam, illuminating the section of Market Street Road in front of him. (Id.) At approximately 3:20 a.m., Officer Maley saw a white Cadillac moving toward him along Market Street Road. (Id. at 5.) The vehicle passed before him, and he observed that its windows were darkly tinted. (Id. at 6.) It was "immediately apparent" to Officer Maley that the Cadillac's window tint was darker than permitted by Pennsylvania vehicle regulations.*fn2 (Id.) He stopped the automobile based upon his assessment of a state vehicle code violation. (Id. at 6-7); see also 75 PA. CONS. STAT. § 4524(e)(1); 67 PA. CODE § 175.67(d)(4), .265 tbl. X (mandating that the front and side windows of passenger vehicles transmit at least seventy percent of light into the vehicle's passenger compartment).

Officer Maley approached the passenger side of the Cadillac and addressed the driver, who identified himself as Rashi Ushery, the defendant herein. (Id. at 7.)

Defendant was transporting Chanika Brown ("Brown") in the front passenger seat of the vehicle, which was registered to defendant's father, Ronald Ushery. (Id. at 12-13, 26; see also Doc. 18-3 at 15.) While speaking with defendant, Officer Maley detected "the obvious odor of burnt marijuana coming from the vehicle."*fn3 (Doc. 28 at 7.)

He returned to his patrol car to radio for assistance and to request a background check of defendant. (Id.) Officer Maley also prepared a warning card for the window tint violation, but, as events unfolded, he never presented the warning card to defendant. (Id. at 16-17.) Officer Ryan Lindsley ("Officer Lindsley") and Officer Anthony*fn4 of the Susquehanna Township Police Department arrived on the scene in response to Officer Maley's request for backup. (Id. at 10; see also Doc. 18-3 at 15.) Officer Lindsley measured the Cadillac's window tint and determined that it transmitted only sixteen percent of light through the window. (Id.) Pennsylvania regulations require vehicle windows to have a light transmittance rate of at least seventy percent. See 67 PA. CODE § 175.67(d)(4), .265 tbl. X.*fn5 Officer Lindsley also corroborated the existence of a burnt marijuana odor emanating from the vehicle.*fn6

The background check requested by Officer Maley revealed that defendant had a history of firearms offenses. (Doc. 28 at 11, 19-20.) Officer Maley asked defendant to exit the vehicle and frisked him for weapons. (Id.) The frisk produced no weapons or contraband. (Id. at 21.) Officer Maley informed defendant that he detected an odor of marijuana and asked defendant to consent to a search of the vehicle. (Id. at 11.) Defendant refused. (Id.) Officer Maley then telephoned Ronald Ushery and explained the illegal window tint and marijuana odor. (Id. at 12.) Officer Maley requested consent to search the vehicle, which Ronald Ushery granted. (Id.)

The police searched the Cadillac. They found no marijuana but discovered five small plastic bags in the center console containing seventy-five grams of "an off[-]white chalky substance which [they] immediately suspected was crack cocaine." (Id. at 13, 26.) A subsequent field test confirmed that the substance was cocaine. (Doc. 18-3 at 15.) Officer Maley attempted to arrest defendant, who fled the scene. (Doc. 28 at 13.) Brown also fled. (Id. at 26.) Defendant was apprehended three months later, and the charges in the instant case were filed against him. Brown is not subject to the present indictment.

II. Discussion

Defendant proffers two arguments in favor of suppression. He first contends that the police lacked probable cause to perform the traffic stop based upon the Cadillac's window tint and that the cocaine must be suppressed as fruit of an illegal stop. In the alternative, he argues that the vehicle search violated his Fourth Amendment rights because police lacked probable cause to search the vehicle ...


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