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United States v. Dupree

May 27, 2009


The opinion of the court was delivered by: Rufe, J.


The Indictment in the above-captioned case charges Defendant Maurice Dupree ("Defendant" or "Dupree") with one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Defendant has filed a Motion to Suppress all physical evidence recovered in connection with his arrest on January 16, 2008.*fn1 Upon consideration of Defendant's Motion, the Government's Response in opposition,*fn2 and an evidentiary hearing and oral argument held thereon,*fn3 the Court enters the following findings of fact and conclusions of law:


1. On the evening of January 16, 2008, Philadelphia Police Officers Brian Mabry ("Mabry") and Steven Shippen ("Shippen") (collectively, "the officers") were on patrol duty in the 23rd Police District of Philadelphia in the area of the intersection of 18th Street and Cecil B. Moore Avenue. The officers were in uniform, with Shippen driving, and Mabry riding in, a marked radio patrol car.

2. At approximately 7:00 p.m., the officers received a radio report, or "flash information" ("flash"), that a black male ("suspect"), approximately five feet, eight inches in height, wearing blue jeans and a black hooded sweatshirt, or "hoody," had fired gunshots in the area of 10th and Oxford Streets.*fn4

3. The flash included no further description of the suspect. The officers never received additional information as to the suspect's physical appearance.

4. The officers knew from the flash that it had been issued at the direction of the commanding officer of Philadelphia's 19th Police District.*fn5 However, the officers did not know the source of the tip or report underlying the flash.*fn6 Further, no evidence was received as to when, relative to the time at which the flash was issued, the shots were reported to have been fired.

5. Soon after the flash issued, the officers received an additional radio report that the suspect had fled eastbound on Oxford Avenue.*fn7 The report did not state the suspect's manner of flight, i.e., whether the suspect had fled on foot, in a vehicle, on a bicycle or by some other means.

6. Upon hearing the flash, the officers rapidly drove the approximately ten blocks south and east to 10th and Oxford Streets. At the intersection of 12th and Oxford Streets, Shippen slowed the vehicle to a patrolling speed. The officers crossed 10th Street heading eastbound on Oxford, looking for the suspect. They observed little vehicular or pedestrian traffic, and found the area well-lit by streetlights and residential properties. The officers continued driving east on Oxford until they crossed Marshall Street, which is situated between 7th and 6th Streets as one proceeds east.*fn8

7. On Marshall Street north of Oxford, Mabry saw an individual who he believed matched the description of the suspect.*fn9 The individual was wearing a dark hooded sweatshirt and jeans, and was riding a bicycle slowly in a southerly direction, toward Oxford.*fn10 The individual on the bicycle was in fact Defendant Dupree.

8. Shippen had noticed Dupree on Marshall Street as well, but had not "pa[id] attention" because Dupree was riding a bicycle, and the flash and additional reports had included no mention of a bicycle.*fn11 Shippen continued past Marshall on Oxford.

9. Mabry then told Shippen he had seen an individual on Marshall Street matching the suspect's description.*fn12 Shippen, who had driven a few feet past Marshall, stopped the patrol car, shifted into reverse, backed up and then turned north onto Marshall, driving approximately five miles an hour.*fn13

10. The officers drove north on Marshall Street toward Dupree, who continued to ride slowly on the bicycle south toward the officers' approaching vehicle.*fn14

11. Shippen stopped the patrol car diagonally on Marshall Street, several feet north of Oxford Street, and just past Dupree.*fn15

12. Mabry immediately exited the patrol car and approached Dupree, who was still riding the bicycle.*fn16 Quickly drawing alongside Dupree, and without first speaking, Mabry grabbed Dupree with both hands, one hand holding Dupree's right elbow, the other gripping Dupree's right upper arm.*fn17 While gripping Dupree's arm, Mabry said "Can I talk to you for a minute?"*fn18 Dupree was still astride the bicycle. Shippen had emerged from the patrol car and approached Dupree as well.

13. By grabbing him, Mabry stopped Dupree's movement.*fn19 Mabry testified that, "at that point he was ...

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