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United States v. Smith

June 4, 2008

UNITED STATES OF AMERICA,
v.
DAWAAN EDWARD SMITH, DEFENDANT.



The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

Judge Nora Barry Fischer

OPINION & ORDER

This matter is before the Court on a Motion to Suppress Evidence [34], filed by Defendant Dawaan Edward Smith on January 28, 2008.*fn1 On May 5, 2008, the Court held a hearing on the motion to suppress. For the following reasons, the Court will deny Defendant's motion to suppress.

FINDINGS of FACT

The credible testimony offered at the May 5, 2008 suppression hearing established the following facts.*fn2

On October 17, 2006, at approximately 11:30 p.m., narcotics detectives from the Pittsburgh Police Department were on patrol in two unmarked vehicles near the Rhine Court housing complex on the North Side of Pittsburgh, a "high drug and gun area."*fn3 (Transcript at 5:23-7:3) (Detective Emery testifying). The officers' patrol related to their responsibilities on the "Impact Squad," a part of the narcotics department "focused on street-level drug dealing and violence" in that area, including the housing complex at Rhine Court. (Transcript at 5:10-12) (Detective Emery testifying). In a parking lot at Rhine Court, the officers observed a white male (subsequently identified as Eric Michael) pacing back and forth and speaking on a cellular telephone. (Transcript at 8:2-22) (Detective Emery testifying). Detective Emery exited the unmarked vehicle and initiated surveillance on foot; likewise, Detectives Lewis and Devine parked and also began to conduct surveillance on foot from another direction.

For approximately five to seven minutes, the officers observed Mr. Michael and conducted surveillance of the scene when a silver Chevy Aveo pulled into the parking lot and parked near Mr. Michael. (Transcript at 9:14-18; 34:14-15) (Detective Emery testifying). Mr. Michael approached the passenger side of the vehicle and spoke with the driver*fn4 (subsequently identified as the Defendant, Dawaan Edward Smith). Because Mr. Michael had blocked his vantage point of the driver of the vehicle, Detective Emery radioed Detectives Love and Adametz "to move over and approach the two to find out what was going on." (Transcript at 11:1-3) (Detective Emery testifying). As Detective Emery approached on foot, he noticed that Defendant Smith exited the vehicle. Detectives Love and Adametz pulled into the parking spot immediately adjacent to the Chevy Aveo, approximately five to ten feet from Mr. Michael and the Defendant. Defendant Smith saw the unmarked vehicle and immediately fled.

As the Defendant fled, he pulled a black firearm from his right side. (Transcript at 40:17-21) (Detective Lewis testifying). Approximately ten feet into his pursuit of the Defendant (only a couple of seconds) and after he saw the Defendant pull a firearm from his right side, Detective Emery informed his fellow officers by way of radio contact that the suspect had a firearm and then he announced his authority (i.e., Pittsburgh police) and ordered the Defendant to stop. (Transcript at 13:5-8; 30:23-31:10) (Detective Emery testifying). Despite Detective Emery identifying himself and ordering him to stop, the Defendant continued to flee. (Transcript at 33:20-21). Upon observation of the black firearm in his right hand, Detective Lewis, who also gave chase, deployed his taser. However, it did not subdue the Defendant. (Transcript at 41:4-11) (Detective Lewis testifying). Detective Lewis continued to pursue the Defendant, following Detective Devine down a hillside. Detective Lewis continued to order the Defendant to drop the gun and to stop. (See Transcript at 44:7-9) ("As long as he had that gun in his hand, I kept over and over again saying, drop the gun, drop the gun, police, police") (Detective Lewis testifying). Approximately halfway down the hill, Detective Devine observed the Defendant slip and, as he fell, he discarded the firearm "to the right of the pathway [that the officers] were running down." (Transcript at 57:7-14) (Detective Devine testifying). Per Detective Devine, who was about seven to eight feet from the Defendant at the time, the Defendant deliberately discarded the firearm.*fn5 (Transcript at 57:21-22) (Detective Devine testifying). Going down the hillside, Detective Lewis passed Detective Devine and, believing that he still had a firearm, pushed the Defendant forward, which caused him to stumble allowing Detective Lewis to tackle him. (Transcript at 44:13-25; 47:22) (Detective Lewis testifying). Even at this point, the Defendant still refused to comply with the officers' authority: "Because I told him to put his hands behind his back to detain him and he still continued to resist us." (Transcript at 45:3-4). Once the officers had the Defendant in custody, approximately one minute after he witnessed him discard the firearm, Officer Devine returned and recovered the firearm--a loaded "CZ".38 caliber semi-automatic pistol. (Transcript at 59:1-61:13) (Detective Devine testifying).

PROCEDURAL HISTORY

On April 3, 2007, the Government filed an Indictment charging Defendant Dawaan Edward Smith with one count of Possession of a Firearm by a Convicted Felon, on or about October 17, 2006, in violation of 18 U.S.C. § 922(g)(1). After numerous extensions of time to file pre-trial motions, on January 28, 2008, Defendant Smith filed the instant Motion to Suppress Evidence and Motions in Limine. On February 11, 2008, the Government filed its Response to Defendant's Motion to Suppress, and on February 14, 2008, the Government filed its Response to Defendant's Motions in Limine. After two continuances of the suppression hearing, the Court held the same on May 5, 2008.

ARGUMENTS PRESENTED

In his motion, Defendant moves to suppress all evidence seized from his arrest (including the firearm and drugs) because the "initial approach by the detectives of him and the other individual was an investigative detention unsupported by any reasonable suspicion." (Docket No. 34, at 2). Stated another way, Defendant requests that the Court suppress all evidence because "[p]rior to the initial approach and later the initiation of the chase, there were no circumstances to justify the investigative detention or the arrest of the Defendant." (Docket No. 34, at 2). In response, the Government asserts that "law enforcement was justified in their approach to Dawaan Smith, and had reasonable suspicion to stop and frisk him in light of the totality of the circumstances, including his flight." (Docket No. 37, at 4). The Government further argues that, as to the firearm, the recovery of the same was not the result of a cognizable seizure under the Fourth Amendment to the United States Constitution because Defendant relinquished and abandoned the firearm during pursuit by law enforcement. (Docket No. 37, at 8-10).

Before addressing the substance of the parties' argument, the Court notes that it is well-settled that, at a hearing on a motion to suppress, "the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial ...


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