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United States v. Hill

June 6, 2008

UNITED STATES OF AMERICA,
v.
TIWAND HILL, DEFENDANT.



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

OPINION and ORDER

This matter is before the Court on a Motion to Suppress Physical Evidence and Statements [27] ("Defendant's Motion"), filed by Defendant Tiwand Hill on January 16, 2008. On March 19, 2008, the Court held a suppression hearing, at which it heard testimony from Special Agent Jeffrey Haggerty of the Alcohol, Tobacco, & Firearms Bureau and heard subsequent argument from the counsel for the parties. For the following reasons, said motion is denied.

FACTS*fn1

On or about August 17, 2007, a burglary occurred at Fazi Firearms, a federally licensed firearm dealer in the Borough of Plum, Pennsylvania, during which "person or persons unknown took a stolen car and drove it through the front of the store and removed approximately thirty handguns." (Transcript at 5:6-8). Of particular relevance here, one of the firearms included a Fabrique Nationale, commonly known by its initials "FN" and its 5.7 caliber ammunition. As a result, Special Agent Haggerty requested that local firearms dealers advise him of any "suspicious purchases of ammunition or magazines," and specifically the "somewhat rare 5.7 caliber ammunition." (Transcript at 6:4, 6).

On or about September 1, 2007, a representative of Anthony Arms, a licensed firearms dealer in West Mifflin, Pennsylvania, advised Pennsylvania State Police Trooper Patrick Nied that an individual whom Anthony Arms identified as Tiwand Hill purchased and promptly returned 5.7 caliber ammunition (the same ammunition from the Fazi Firearms burglary) and ultimately purchased .357 caliber ammunition and 9-millimeter ammunition. He also inquired about an "AB-10 pistol," a 9-millimeter pistol. (Transcript at 8:25). The representative of Anthony Arms advised State Trooper Nied that the Defendant drove "a maroon GMC Tahoe SUV" registered in the names of Tiwand Hill and Rhonda Battles, (Transcript at 8:13; 9:15-17), and that Mr. Hill behaved suspiciously insofar as "he parked his vehicle way down in the corner of the lot," (Transcript at 7:16-17).*fn2

On the next day, September 2, 2007, State Trooper Nied conducted a criminal background check on Mr. Hill, from which he discovered the following: (1) that Mr. Hill had an "extensive arrest record," (Transcript at 10:1-3); (2) that Mr. Hill's driver's license was suspended, (Transcript at 10:5-6); (3) that an active Protection From Abuse Order ("PFA") existed against Mr. Hill filed by Ms. Battles; and (4) that Mr. Hill resided at 57 Craighead Street, Pittsburgh, Pennsylvania. State Trooper Nied relayed all this information to Special Agent Haggerty on the same day. (Transcript at 9:22-25).

On September 4, 2007, Special Agent Haggerty proceeded to 57 Craighead Street,*fn3 where he observed a maroon GMC Tahoe "with the same license plate that had been provided through Trooper Nied from Anthony Arms" parked near the front of the residence. (Transcript at 10:20-21). Special Agent Haggerty returned to his office and confirmed through the Allegheny County Probation Office and the Pennsylvania Board of Parole and Pardons that Mr. Hill had been convicted of a felony in or around 2001 and that said conviction had not been set aside or pardoned. (Transcript at 10:25-11:11). Special Agent Haggerty received (by way of facsimile transmission) a receipt from Anthony Arms, detailing the purchases by the Defendant. (Transcript at 11:14-16).

At approximately 1:45 p.m. that day, Special Agent Haggerty initiated surveillance at 57 Craighead Street in an unmarked vehicle. (Transcript at 13:11-13). He noted that the maroon GMC Tahoe was no longer parked there. (Transcript at 13:14-15). At approximately 2:15 p.m., Special Agent Haggerty observed an individual whom he believed to be Hill return to the residence in a maroon GMC Tahoe and enter the residence at 57 Craighead Street.*fn4 (Transcript at 13:21-14:12). At approximately 3:30 p.m., Special Agent Haggerty and Detective Bart Hennessy*fn5 observed Hill exit the residence and walk toward their vehicle with his keys in his hand, at which time they approached him, identified themselves as law enforcement officers, and asked if they could speak with him, to which the Defendant agreed. (See Transcript at 16:24-17:1) ("Q: Okay. So, you basically approach him and ask to speak to him. What is his response? A: He was agreeable. He said that he would talk to us"). At that point, Detective Hennessy informed Hill that he would like to pat him down for officer safety, and "Mr. Hill was agreeable to that." (Transcript at 17:2-4). Detective Hennessy patted down Hill, which revealed approximately $3,300 in cash, a cellular telephone, and keys. (Transcript at 17:2-11). Special Agent Haggerty advised the Defendant that he was not under arrest and that he was free to leave but that they wished to speak to him, to which the Defendant again agreed. (Transcript at 17:15-18). Upon Special Agent Haggerty's suggestion, they spoke in the officers' vehicle, with Special Agent Haggerty in the driver's seat, the Defendant in the front passenger seat, and Detective Hennessy in the back. (Transcript at 17:21-23). The Defendant asked the officers if they could drive to a more secluded location. (Transcript at 18:11-15). Conceding to his request, the officers drove about a block and a half away and again parked. (Transcript at 18:16-22).

Once they parked, Special Agent Haggerty asked Hill if he had been at Anthony Arms on the date in question. (Transcript at 19:2-5). While he initially said that he was not there, he subsequently stated that he had bought some ammunition at the request of "some associates." (Transcript at 19:6-9). The Defendant stated that while he gave some of the ammunition to said "associates," he retained the remainder in his maroon GMC Tahoe parked in front of his residence. (Transcript at 20:1-5). The law enforcement officers responded by asking if he would allow them to search his vehicle, and he agreed. (Transcript at 20:8-9). The officers then asked the Defendant to execute a "Consent to Search" form as to his vehicle, which the Defendant and the officers signed and dated. (Transcript at 20:16-18); (see Docket No. 34-3) ("Government Exhibit 1"). In order to provide assistance with the search, the officers contacted Detective Steckel,*fn6 Detective Hennessy's partner. (Transcript at 23:7-14). Special Agent Haggerty, Detective Hennessy, and the Defendant returned to the residence at 57 Craighead Street and parked directly behind the Defendant's vehicle. Detective Steckel met the officers and the Defendant at 57 Craighead Street. Without any request by the law enforcement officers to unlock his vehicle, the Defendant did so with a remote control and Detective Steckel and Detective Hennessy proceeded to search the Defendant's vehicle. (Transcript at 24:4-14). Special Agent Haggerty and the Defendant remained in the unmarked vehicle. (Transcript at 24:15-17).

After the Detectives noted that there appeared to be no ammunition in the vehicle, the Defendant, on his own accord,*fn7 placed a telephone call on his cellular telephone, during which he asked the individual at the other end about the ammunition. (Transcript at 24:23-25:13). After ending the call, the Defendant informed Special Agent Haggerty that he called his girlfriend, Ms. Battles, who informed him that she had moved the ammunition into the house at 57 Craighead Street, specifically the bedroom. (See Transcript at 25:22-24). In response, Special Agent Haggerty asked, "so now what," to which the Defendant replied, "so let's go get it." (Transcript at 25:19-20). Subsequently, the Defendant escorted all of the officers (Special Agent Haggerty, Detective Hennessy, and Detective Steckel) into the residence. (Transcript at 25:24-25). The Defendant unlocked the door, disabled the alarm, and informed the officers that the ammunition was in the closet in his bedroom. (Transcript at 25:25-26:6). Special Agent Haggerty informed the Defendant that they wanted him to point out where the ammunition was located but not to reach for the same, to which the Defendant indicated that he understood. (Transcript at 26:18-24). Special Agent Haggerty, Detective Steckel and the Defendant proceeded to the to the second floor while Detective Hennessy remained on the first floor for officer safety. (Transcript at 27:5-7). According to Special Agent Haggerty, the Defendant raised no objection to Detective Hennessy remaining on the first floor. (See Transcript at 27:12-16).

The Defendant showed Special Agent Haggerty and Detective Steckel to a bedroom and directed the officers to a bag on the top shelf of the smaller closet, which Special Agent Haggerty retrieved and discovered contained a box of 9-millimeter ammunition. (Transcript at 28:5-13). However, Special Agent Haggerty informed the Defendant that he did not see the .357 caliber ammunition, which seemingly prompted the Defendant to walk towards Special Agent Haggerty and sit down on the bed directly behind him. (Transcript at 28:13-29:1). Now sitting on the bed, the Defendant reached towards the floor underneath the bed only to be reprimanded by Special Agent Haggerty not to reach for anything, as he previously instructed the Defendant. (Transcript at 29:12-18). The Defendant explained that he thought the remaining ammunition was under the bed. (Transcript at 29:18-19). Special Agent Haggerty looked under the bed and saw another bag. (Transcript at 29:20-21).

Special Agent Haggerty asked the Defendant if there were any guns in the room, but he did not answer. (Transcript at 29:25-30:1). Detective Steckel then asked the Defendant again if there were any firearms under the bed, to which the Defendant responded in the affirmative. (Transcript at 30:1-5). Detective Steckel then removed his taser and pointed it at the Defendant and the officers summoned Detective Hennessy to the second floor. (Transcript at 30:8-14). The officers removed the Defendant from the bed and asked him to sit on a chair in the middle of the room, yet still within reach ("with a lunge") of where the firearms were allegedly located, approximately five to seven feet. (Transcript at 30:25-31:3). Detective Hennessy lifted the bed and the officers retrieved two firearms: a five-shot Smith & Wesson revolver and a Jimenez Arms 9-millimeter pistol, both of which were fully-loaded.*fn8 (Transcript at 31:14-15). After the officers seized the weapons, Detective Hennessy advised the officers and the Defendant that he saw several scales and other evidence of marijuana (including baggies as well as marijuana residue) in plain view on the dining room table on the first floor. (Transcript at 32:8-11). The Defendant informed the officers that there were not any drugs in the house but that "he was on his way to go purchase three pounds of marijuana." (Transcript at 32:23-25).

At this point, Special Agent Haggerty noticed that the Defendant "kept looking in the larger closet" and the officers and Defendant "discussed it openly" that the Defendant continued to do so. (Transcript at 33:6-10). Special Agent Haggerty opined that "it look[ed] as though maybe there is marijuana in the closet," to which the Defendant disagreed and stated that the officers could look. Detective Steckel then asked the Defendant for his written consent to search the remainder of the residence, to which he once again agreed, executing another consent to search form. (Transcript at 33:6-16); (see Docket No. 34-4) ("Government Exhibit 2").*fn9 As a result of the ensuing search of the residence, the officers seized numerous items, including a Pennsylvania ...


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