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United States v. Gilbert

July 2, 2009


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Currently before the Court is the MOTION TO SUPPRESS EVIDENCE filed by Defendant, Jaymar A. Gilbert (Document No. 41).

On April 21, 2009, the Court conducted an evidentiary hearing on the suppression motion at which all parties were represented by counsel who presented and argued the issues skillfully and effectively. Officer Joshua Whaley, Officer Dave Lang, Lieutenant Kevin Kraus (all with the City of Pittsburgh Police Department) and F.B.I. Special Agent Kelley Hoover testified on behalf of the government. Heather Gill and Richard Villa testified on behalf of the Defendant.

At the conclusion of the suppression hearing, the Court ordered that the record would remain open until May 21, 2009, so that defense counsel, if so desired, could file a post-hearing brief, with the government's response due on or before June 4, 2009. Counsel for defendant requested a one-day extension of time in which to file his post-hearing brief, which request was granted. The post-hearing briefs were timely filed after the extension and the matter is now ripe for disposition.

Based on the testimony and evidence presented at the suppression hearing and the applicable law, the Court enters the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Criminal Procedure 12(d):


The facts surrounding this traffic stop and subsequent inventory search on October 14, 2007, are basically not contested. On October 14, 2007, Officer Dave Lang and his partner, Officer Joshua Whaley, were on patrol in their marked police vehicle in the Northside area of Pittsburgh. At approximately 4:14 P.M., they observed a blue Mercury Sable with PA license plate GRC 1379 traveling outbound in front of them on Brighton Road. Officer Whaley determined, through the Pennsylvania Department of Transportation ("PennDOT") computer system that the vehicle's registration had been suspended due to a returned check. See Govt Ex. 1. As a result, the officers initiated a "general" traffic stop. The driver of the vehicle, later identified as the Defendant, pulled the Mercury Sable over about three (3) feet from the curb. Officer Lang testified that the vehicle was stopped in an unsafe location and would not have been considered to have been legally parked.

Officer Lang approached the Defendant and asked for his license, registration, and proof of insurance, which Defendant provided. There were two passengers in the car: Delano Brown, sitting in the front seat, and Charles Chaney, sitting in the rear back seat, on the driver's side of the vehicle. Officer Lang told the Defendant that the car registration was suspended and asked the Defendant to get out of the car. Once the Defendant was out of the car, Officer Lang asked him if he had "anything on him." Defendant replied that he had "a little weed in his pocket." Officer Lang proceeded to retrieve the marijuana and placed Defendant in handcuffs and arrested him for possession of marijuana.

Both passengers agreed to a search of their persons, which was conducted by Officer Whaley, and both searches were negative for contraband.

Officer Whaley determined that under Pennsylvania law the Mercury Sable needed to be towed because (i) the driver was being arrested, (ii) the vehicle had a suspended registration and (iii) it was blocking the roadway.*fn1 According to the "Towing and Tow Pound Procedures" of the Pittsburgh Bureau of Police, the vehicle of an arrested person "shall NOT be towed unless: [t]he vehicle presents a traffic hazard and cannot be driven away." Govt Ex 2, ¶ 5.1.1. Further, the Pennsylvania Vehicle Code specifically provides as follows:

If a motor vehicle or combination for which there is no valid registration or for which the registration is suspended, as verified by an appropriate law enforcement officer, is operated on a highway or trafficway of this Commonwealth, the law enforcement officer shall immobilize the motor vehicle or combination or, in the interest of public safety, direct that the vehicle be towed and stored by the appropriate towing and storage agent....

Govt Ex. 5, 75 Pa.C.S.A. § 6309.2(a)(2) (emphasis added).

Officer Whaley commenced an inventory of the vehicle before it was to be towed. During the inventory search, Officer Whaley found a.38 Smith & Wesson firearm in the glove box. At that point, the inventory search was stopped.*fn2

At approximately the same time that Officer Whaley found the firearm in the glove box, Lieutenant Kraus arrived on the scene. Lieutenant Kraus and Officer Lang approached the Defendant and Lieutenant Kraus told Defendant that he wanted to talk to him about the firearm found in the glove box. Lieutenant Kraus proceeded to orally give Defendant his Miranda rights, and the Defendant informed the officers that he was willing to talk about the firearm without an attorney being present. The Defendant voluntarily told Lieutenant Kraus and Officer Lang that the firearm in the glove box was his and that he had purchased it approximately one month earlier.

Heather Gill, the girlfriend of the Defendant, testified that the police called and informed her that the Defendant was being arrested. Ms. Gill and her friend came to the scene and asked the police if they could take the vehicle. Her friend had a valid driver's license and she would have been the person who would drive the vehicle home; at the time, Ms. Gill was unable to drive as she only had a driving learner's permit. The police refused her request as the vehicle registration was suspended.

Ms. Gill testified that the police were mistaken in their belief that the vehicle's registration was suspended. During the hearing, Ms. Gill testified that the vehicle registration had been suspended, but should have been reinstated as she had paid the registration fee, although late.*fn3 Ms. Gill testified that, prior to Defendant's arrest, she had spoken with a representative of PennDOT who told her that if she paid the registration fee, the registration would be reinstated. PennDOT did not send her a confirmation of the reinstatement as the representative informed her that with proper payment the registration would be restored. Ms. Gill sent in the registration payment; however, she inadvertently submitted an overpayment.*fn4

Def's Exhibit H1, an "A/R Inquiry Detail" dated February 14, 2008, issued by PennDOT, contains the following handwritten notation written by a representative of PennDOT: "The case should've been closed 9-27-07 with the stop removed. Overpayment caused case to remain open & stop to remain. This is a PennDOT error."

On October 14, 2007, the Defendant was charged in the Court of Common Pleas of Allegheny County, Criminal Division, with the following crimes: possession of a firearm; firearms not to be carried without a license; intentional possession of contraband; vehicle registration suspended; and possession of marijuana.

On February 26, 2008, a federal Grand Jury returned a one-count Indictment which charged Defendant with Possession of a Firearm by a Convicted Felon on or about October 14, 2007, in violation of Title 18, United States Code, section 922(g)(1).

On February 27, 2008, Special Agent Kelley Hoover, along with City of Pittsburgh Police Officer Biblebicz, arrested Defendant at a residence located at 530 California Avenue, Bellevue, Pennsylvania, for the federal crime of Possession of a Firearm by a Convicted Felon. At the time of his arrest, Defendant had on his person identification, a cell phone, money, and baggies of marijuana. His girlfriend was present at the time of his arrest.

Special Agent Hoover and Officer Biblebicz transported Defendant to the Alcohol, Tobacco and Firearms ("ATF") Pittsburgh office, where Defendant was put in an interview room. Special Agent Hoover read Defendant his Miranda rights from a card and Defendant informed her that he was willing to talk without an attorney being present. Defendant signed and printed his name on an ATF Form 3200.4, Statement of Rights and Waiver of Miranda rights. Special Agent Hoover talked briefly to Defendant about where he had obtained the firearm that was found in his glove box during the inventory search on October 14, 2007.

Defendant filed the instant motion in which he argues that there was no objectively reasonable basis for the traffic stop as the vehicle registration was not in fact suspended on October 14, 2007. Alternatively, Defendant argues that if there was a valid reason for the traffic stop, the decision of the police to remove the Defendant from the vehicle was an unlawful seizure and the decision to ...

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