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United States v. Johnson

June 4, 2009


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


David Troy Johnson has been charged with violating 18 U.S.C. § 922(g)(1) (convicted felon in possession of a firearm). He moved to suppress the physical evidence obtained during his December 4, 2007 arrest. A hearing on the matter was held on April 13, 2009. Upon consideration of the parties' memoranda and oral arguments, I will deny the defendant's motion.

I. Background

On December 4, 2007, Reading Police Officer Ronald Miko was on patrol in a marked police vehicle in the area of Third and Penn Streets in Reading, Pennsylvania. As he patrolled the area, Officer Miko decided to conduct surveillance of some houses on the 100 block of South Third Street that were suspected of dealing crack cocaine. (Mot. to Suppress Hr'g Tr. 7:20--8:2, Apr. 13, 2009.) Arriving on the block around 2:48 a.m., Officer Miko noticed that the foot traffic going in and out of one of the buildings was consistent with drug sales. (Id. 8:10--15.)

After conducting several pedestrian stops and recovering some drug paraphernalia, Officer Miko decided to enter one of buildings to talk with a resident of the first floor apartment. (Id. 8:16--19.) The male who opened the door was not someone Officer Miko had seen enter the building. (Id. 47:22--25.) After identifying himself, Officer Miko told the man the police had reason to believe that drugs were being sold in the apartment building and asked if he was aware of anything. (Id. 48:22--49:3.) The man said he did not and asked if he was free to leave. (Id. 49:4--6.) Officer Miko told him he was. (Id. 9:11--14.)

Soon there afterwards, the man decided to leave the building. Officer Miko admitted he continued to watch him because he was suspicious of drug involvement. (Id. 49:9--14.) When the individual exited the building, he got into the front passenger seat of a gray Pontiac Grand Prix that had just pulled up. (Id. 9:20--10:2, 11:19--22.) The Pontiac had Pennsylvania registration tags, and the license plate number was GPD-6629. (Id. 10:23--11:2.) The police would later learn that the Grand Prix was being driven by the defendant David Troy Johnson.

Officer Miko went into his vehicle and followed the Pontiac. (Id. 11:11--12:18.) After the Pontiac made four right turns so as to drive around the block, it stopped, and the passenger (the individual with whom Officer Miko spoke) exited the vehicle and walked through the gap between the Pontiac and the officer's patrol car. (Id. 11:23--12:5.) Officer Miko also came to a complete stop within one car length of the Pontiac, and it was then he noticed that the car's registration tags were expired. (Id. 12:3--5, 15:4--9.) Though it was already December of 2007, the car's registration tags were valid only through November of 2007. (Id. 14:21--15:3.)

Officer Miko radioed that he would be conducting a stop of the Grand Prix (Id. 15:18--20.) Officer Miko continued to follow for a few blocks before activating his emergency lights and sirens. (Id. 16:6--17:1.) Instead of stopping, the Pontiac continued on at a slightly higher speed. (Id. 17:12--23.) Upon the Pontiac's failure to comply, Officer Miko radioed that he was in pursuit of a vehicle that failed to stop. (Id. 18:4--5.)

What followed was a dangerous chase through Reading filled with numerous traffic violations. As the driver, Johnson exceeded the posted speed limits, failed to stop at more than five stop signs, drove through at least two red lights, and drove against the flow of traffic on a one-way street for four blocks. (Id. 18:24--27:1.) At some point during the chase, Officer Miko was joined by Officer Chris Dinger. (Id. 29:1--7.) When Johnson finally stopped near the intersection of South Seventh and Willow Streets, he exited the vehicle and began running down an adjacent alley. (Id. 31:1--3.) Because the alley was too narrow to drive down, Officer Miko continued the pursuit on foot and ordered Johnson to stop. (Id. 31:11--13.) Johnson continued to run on. (Id. 31: 18--25.)

While running down the alley, Officer Miko observed Johnson pull a black handgun from beneath his jacket and throw it to the side. (Id. 32:3--6.) Officer Miko notified Officer Dinger that a gun was thrown and continued to chase Johnson. (Id. 32:8--11.) Johnson ran into the backyard of 628 Willow Street and attempted to open the back door. (Id. 34:3--22.) Officer Miko presented his weapon and repeatedly ordered Johnson to show his hands. (Id. 32:23--25.) Johnson did not comply with the order. (Id. 35:1--2.)

Officer Miko approached Johnson and grabbed him. (Id. 35:3--9.) This was the first time the officer physically touched Johnson. (Id. 35:10--12.) Instead of surrendering, Johnson began to wrestle with the officer. (Id. 35:21.) Officer Miko pushed Johnson's head to the ground and ordered him to stop resisting. (Id. 36:3--8.) When Officer Dinger arrived, the officers were able to move the still-struggling Johnson away from the residence and ordered him to remove his hands from his waistband and put them behind his back. (Id. 36:22--37:2.) Johnson continued to refuse to comply; the officers struck him several times. (Id. 37:2--5.) Even when Officer Miko used pepper spray, Johnson still struggled and refused to place his hands behind his back. (Id. 37:5--7.) Eventually, Officer Dinger was able to handcuff Johnson. (Id. 37:8--9.)

After Johnson was handcuffed, one of the officers searched him and found a magazine of ammunition. (Id. 38:24--39:2.) The handgun that Johnson had thrown in the alley was a Heckler and Koch, Model "USP" .45 caliber pistol, which was fully loaded with an extra bullet in the chamber. The magazine found on Johnson's person was a Heckler and Koch magazine manufactured to fit that pistol.

On the basis of Officer Miko's criminal complaint against Johnson, an eleven-count information was filed in Court of Common Pleas of Berks County, Pennsylvania. (See Def.'s Ex. 1.) There was no charge against Johnson for driving with an expired registration sticker because Officer Miko did not include it. (Mot. to Suppress Hr'g Tr. 42:4--24.) The officer testified that it was not common practice to charge a defendants with every traffic violation when there are so many to be included. (Id. 67:19--24.)

Later investigation revealed that the car was being rented from Enterprise Rent-ACar. (Id. 76:9--15.) The registration was in fact valid, but the new sticker had not yet been attached. (Id. 69:20--70:6.) When the car was returned to Enterprise Rent-A-Car's lot on December 5, 2007, an employee attached the new sticker. (Id. 77:7--25. But see id. 91:6--11 (stating that the testifying ...

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