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United States v. Johns

August 27, 2009

UNITED STATES OF AMERICA
v.
TYRONE JOHNS



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

MEMORANDUM

I. INTRODUCTION

Defendant, Tyrone Johns, is charged in a two-count Indictment with: (1) possession with intent to distribute five grams or more of cocaine base ("crack"), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) (Count One); and (2) possession with intent to distribute five grams or more of cocaine base ("crack") within one thousand feet of a school, in violation of 21 U.S.C. §§ 860, 841(b)(1)(B) (Count Two).

Presently before the Court is Defendant's Motion to Suppress Physical Evidence in which defendant moves to suppress the cocaine base ("crack") found on his person during a vehicle stop on November 25, 2007. The Court held a hearing and oral argument on defendant's Motion to Suppress on July 27, 2009. Following the hearing, on August 3, 2009, defendant requested that the Court reopen the record to receive additional evidence in support of defendant's Motion to Suppress.*fn1 The Court granted the request on August 6, 2009, and defendant submitted additional records to the Court on August 19, 2009. For the reasons set forth below, defendant's Motion to Suppress is denied.

II. BACKGROUND

On the evening of November 25, 2007, defendant was driving a red 2007 Ford Mustang westbound on Cedar Avenue in Philadelphia. (Suppression Hr'g Tr. 6, July 27, 2009.) The Mustang was a rental vehicle that defendant had rented five days earlier. (Id. at 36, 40.) Police Officers Kaliv Ivy and Joseph Carter, assigned to the Philadelphia Police Department's Highway Patrol Unit, were driving westbound on Cedar Avenue in a marked police vehicle. (Id. at 6.) At some point east of 60th Street, they became positioned one to two car-lengths behind defendant's vehicle. (Id. at 7, 14--15.) What happened next is disputed by the parties.

According to P.O. Ivy, when both vehicles braked at the red light at 60th Street, the two side brake lights of defendant's Mustang worked properly, but the center rear brake light did not illuminate. (Id. at 6--7, 15--16.) After the light turned green, P.O. Ivy turned on the overhead lights of his police vehicle, and defendant immediately pulled over to the side of the road. (Id. at 7--8, 16.)

Defendant testified to the contrary. According to defendant, the Mustang's rear center brake light was fully operational. (Id. at 37--38.) Defendant testified that when he rented the Mustang, he and the rental agent inspected the vehicle. (Id.) Defendant sat inside the Mustang and depressed the brake pedal; the rental agent stood outside the vehicle to confirm that the brake lights were functioning properly. (Id.) At that time, five days prior to the stop, the rental agent did not mention any problems with the center rear brake light. (Id.) Defendant further testified that following his arrest, he was seated inside the police cruiser parked behind the Mustang, waiting for a tow truck for the Mustang. (Id. at 38--39.) Initially, the Mustang's engine was running while P.O. Carter went to retrieve the keys. (Id. at 38--39, 41--43.) Defendant testified that during this time, the center rear light was illuminated. (Id. at 38--39.) P.O. Ivy could not recall whether he said anything to defendant regarding the center rear brake light as he walked defendant to the police vehicle and placed him inside the vehicle. (Id. at 42--44.)

With the exception of whether the Mustang's rear center light was illuminated during some portion of the stop, defendant does not dispute P.O. Ivy's account of what happened after defendant pulled over. P.O. Ivy testified that he walked over to the driver's side of the Mustang and shone a flashlight into the vehicle. (Id. at 7--8.) When he did so, he saw a plastic bag with green plastic packets of a white, chunky substance protruding from the pocket of defendant's "hoodie" jacket. (Id.) Believing that the plastic bag contained drugs, P.O. Ivy ordered defendant out of the vehicle, seized the plastic bag, and placed defendant under arrest. (Id. at 8.) A subsequent test revealed that the white substance tested positive for cocaine base ("crack"). (Property Receipt, No. 2756372, Nov. 25, 2007, Ex. G2.) After taking defendant into custody, P.O. Ivy determined that defendant was driving without a driver's license. (Suppression Hr'g Tr. 9, 22.) As defendant did not have a license, the officers conducted a "live stop," which "allows the police to tow and seize a vehicle if the owner or operator doesn't have a valid license or if their license is suspended. . . . [They] proceeded to live stop [defendant's] vehicle and called the Philadelphia Parking Authority for it to be towed." (Id. at 9.)

P.O. Ivy issued a traffic citation to defendant for driving without a license. (Traffic Citation, No. W02056390, Nov. 25, 2007, Ex. G1.) Defendant was not given a traffic citation for driving with an inoperable rear center brake light. (Suppression Hr'g Tr. 22--23, 31.) However, the Traffic Citation for driving without a license mentioned that the Mustang's "high mount brake light [was] out." (Traffic Citation, Ex. G1.) The Property Receipt prepared by P.O. Ivy also stated that defendant "was stopped operating . . . [a] Red/Ford Mustang with its high mount brake light out . . . ." (Property Receipt, Ex. G2.) In addition, the Philadelphia Police Department Vehicle or Pedestrian Investigation Report ("Form 75-48A") mentioned "rear brake lights" and Philadelphia Code Section "4303-B," which governs rear lighting systems. (Form 75-48A, Nov. 25, 2007, Ex. G4.)

Defendant filed a Motion to Suppress the cocaine base ("crack") on April 2, 2009. The Court held a hearing and oral argument on defendant's Motion to Suppress on July 27, 2009. Following the hearing, on August 3, 2009, defendant requested that the Court reopen the record to receive additional evidence in support of defendant's Motion to Suppress. On August 6, 2009, there being no objection, the Court granted defendant's request.

On August 7, 2009, defendant served a subpoena requesting "[a]ll maintenance/repair records for Hertz vehicle #01998/939940; VIN: 1ZVFT80N175358844; NJ Tag VZT65S, for the months of November & December 2007," the vehicle defendant was operating on the evening of November 25, 2007. Carolyn Fry, on behalf of the Hertz Corporation, responded to the subpoena on August 11, 2009, attaching "all records found in our system for that vehicle on those dates." The records disclose that an oil and filter change was performed on November 8, 2007. The records also disclose that Hertz was notified by the Parking Authority on November 26, 2007 that the vehicle had been towed and should be retrieved by Hertz. There is no record of the replacement of any brake lights.

III. LEGAL STANDARD

"On a motion to suppress, the government bears the burden of showing that each individual act constituting a search or seizure under ...


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