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United States v. Burk

January 13, 2009

UNITED STATES OF AMERICA
v.
FRANKIE BURK , RICARDO RAMOS



The opinion of the court was delivered by: Honorable Jan E. DuBois

ORDER & MEMORANDUM ORDER

AND NOW, this 13th day of January, 2009, upon consideration of defendant Ricardo Ramos's Motion to Suppress Physical Evidence (Document No. 35, filed August 28, 2008); the Government's Response in Opposition to Defendant's Motion to Suppress (Document No. 53, filed September 22, 2008); defendant Frankie Burk's Motion to Suppress Physical Evidence and Alleged Statement(s) (Document No. 84, filed December 5, 2008); the Government's Opposition to Defendant's Motion to Suppress Physical Evidence and Statements (Document No. 86, filed December 11, 2008); defendant Burk's Supplemental Exhibit in Support of Defendant's Motion to Suppress Physical Evidence and Alleged Statement(s) (Document No. 88, filed December 16, 2008); and the Government's Supplemental Response in Opposition to Defendant's Motion to Suppress Physical Evidence and Statements (Document No. 89, filed December 16, 2008); following a hearing and oral argument on December 15, 2008, for the reasons set forth in the attached Memorandum, IT IS ORDERED as follows:

1. Defendant Ricardo Ramos's Motion to Suppress Physical Evidence is DENIED; and,

2. Defendant Frankie Burk's Motion to Suppress Physical Evidence and Alleged Statement(s) is DENIED.

MEMORANDUM

I. Introduction

Defendants Frankie Burk and Ricardo Ramos are each charged in a four count Indictment with: (1) possession with intent to distribute and aiding and abetting the possession with intent to distribute approximately 21 grams of heroin and approximately 3.4 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2; (2) possession and aiding and abetting in the possession of a loaded .40 caliber H & K handgun in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2; and (3) possession by a convicted felon of a firearm in and affecting interstate and foreign commerce in violation of 18 U.S.C. § 922(g)(1).

Presently before the Court is defendant Ramos's Motion to Suppress Physical Evidence and defendant Burk's Motion to Suppress Physical Evidence and Alleged Statement(s). The Court held a hearing and oral argument on defendants' Motions to Suppress on December 15, 2008. For the reasons set forth below, both defendants' Motions to Suppress are denied.

II. Background

A. Surveillance by Officers Landis and Linahan

At approximately 12:45 p.m. on March 31, 2008, Police Officers William Landis and Timothy Linahan set up plain clothes surveillance in an unmarked vehicle at the corner of Rorer and Cambria Streets. (Suppression Hr'g Tr. 8--9, Dec. 15, 2008.) Officer Landis testified that, in his experience, this location is a "very well known drug location" for the sale of heroin stamped "Last Stop." (Id. at 8.) While at that location, Officers Landis and Linahan observed a black Chevrolet suburban vehicle ("SUV") drive by their surveillance vehicle at least twice. (Id. at 9--10.) The Officers then changed locations and parked at the corner of D and Cambria Streets.

(Id. at 13.) At this location, the officers observed the same SUV drive by their vehicle and park five feet in front of it. (Id.) The driver of the SUV did not commit any traffic violations. (Id. at 26, 71, 98.)

Officer Landis testified that he then observed two black males approach the passenger side of the SUV in close succession, approximately thirty seconds apart. (Id. at 14, 15--16, 31.) According to Officer Landis, the first male had United States currency in his hand, handed that currency to an occupant of the SUV through the passenger side window, received what appeared to be a small object in return, and walked away with a closed fist. (Id. at 14--15, 62.) The second male then approached the vehicle and did the same: handed United States currency to an occupant of the SUV, received what appeared to be a small object, and walked away with a clenched fist.*fn1 (Id. at 15.) Officer Landis also observed hand movements through the back windshield of the vehicle as these transactions occurred. (Id.) Officer Landis further testified that he recognized one of the two black males who approached the vehicle as Ulysses Hood, "a known dealer from Rorer and Cambria" who "wears the same glasses" and "same plaid jacket all the time" and whom Officer Landis has arrested on two prior occasions. (Id. at 16.)

Believing that two narcotics transactions had just occurred, Officer Landis put out flash information by police radio on the vehicle and the two males, identifying Mr. Hood by name. (Id. at 19.) Although the two males were never stopped or apprehended, the vehicle was stopped soon thereafter. (Id.)

B. Vehicle Stop by Officers Cricelli and Kachigan

Police Officers Alex Cricelli and Edward Kachigan received the flash information on the SUV over the police radio and stopped it at the 3000 block of C Street, approximately two blocks away from where Officers Landis and Linahan conducted their surveillance. (Id. at 38, 69--70, 71.) Officer Cricelli approached the driver's side of the SUV and asked the driver for his driver's license, registration, and insurance through the open driver's side window. ...


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