The opinion of the court was delivered by: Eduardo C. Robreno, J.
Defendant moves to suppress the handgun that was recovered by police after a physical altercation with Philadelphia Police Officers on April 11, 2009. The Defendant is charged with being a convicted felon in possession of a handgun used in interstate commerce in violation of 18 U.S.C. § 922(g).
After an evidentiary hearing, and for the reasons that follow, the motion will be denied.*fn1
A. Initial Confrontation with Police Officers
On April 11, 2009, at approximately 9:20 p.m., Philadelphia Police Officers Ramos and Slobodrian ("the Officers"), detailed to the 25th District, were on routine patrol in a marked car and in full uniform. As they traveled north on 5th street, the Officers saw a person, later ascertained to be Defendant William Colon ("the Defendant"), walking north on the east side of 5th street towards Indiana Avenue. When the Officers saw the Defendant, there had been no reports of criminal activity in the area and they had no information about the Defendant or anyone fitting his description.
The Officers saw the Defendant look in their direction. At this point, presumably because he had spotted the police cruiser, the Defendant sped up his pace and continuously looked over his shoulder at the officers. Officer Slobodrian testified that the Defendant appeared so preoccupied with looking behind him that he almost ran into a wall as he turned onto the 400 block of Indiana Avenue. The Officers also observed that the Defendant was holding the right side of his pants with both hands, at the waistband, with his fists clenched.
The Officers, who are familiar with this area of North Philadelphia, have identified it as a "high-crime" area. Neither Officer had seen the Defendant in the area before. However, both Officers grew suspicious of the Defendant because of his evasive behavior and the way that he was holding his hands at his waist. Based on their experience and training, the Officers state that they suspected the Defendant was holding a firearm or illegal narcotics in his waistband.
After the Officers formed their suspicion, Officer Slobodrian drove the patrol car alongside the Defendant, who by now had turned the corner and was walking east on the 400 block of Indiana Avenue. Officer Slobodrian asked the Defendant where he was going. The Defendant responded, "Don't worry about it, I'm not doing nothing", and continued to walk along Indiana Avenue at a brisk pace. The Officers continued to drive alongside the Defendant.*fn2 After following him for a short time, Officer Ramos exited the vehicle and followed the Defendant on foot. Meanwhile, Officer Slobodrian drove east and parked the patrol car at the next street (the corner of Indiana Avenue and Lawrence Street) blocking the Defendant's anticipated path.
B. Confrontation with Officers at the corner of Indiana and Lawrence Officer
Slobodrian exited the vehicle and proceeded west on Indiana Avenue toward the Defendant. At the same time, Officer Ramos continued to follow about ten feet behind the Defendant. When Officer Slobodrian exited the vehicle, he said to the Defendant, "come here for a second ... we got to find out where you live, are you from the area". Officer Slobodrian testified that at this point the Defendant appeared very nervous. Officer Slobodrian stated that the Defendant stopped "as if were going to take off running". Finally, Officer Slobodrian testified that when the Defendant noticed Officer Ramos behind him, the Defendant took off running. The Officers ordered the Defendant to stop, but he crossed the street and continued running east toward Lawrence Street.
C. Initial Use of Physical Force by Officers
Because he suspected that the Defendant may have been armed, Officer Ramos gave chase, caught up to the Defendant, and used his police issued taser to stop the Defendant near the corner of Indiana and Lawrence. Although initially knocked to the ground by the impact of the taser, the Defendant continued to try to flee from the Officers. In response, Officer Ramos tasered the Defendant again. Officer Slobodrian then attempted to subdue and handcuff the Defendant. During the struggle, the Defendant continued to reach into his waistband area. Then Officer Ramos tasered the Defendant one additional time before the Defendant ceased resistance.
D. Handcuffing and Frisking Mr. Colon
When the Defendant finally placed his hands behind his back the Officers were able to successfully handcuff him. At the hearing, neither Officer was able to specifically remember whether the Defendant was handcuffed with palms out or palms in. Both of the Officers testified that when a person is resisting handcuffing, protocol calls for the handcuffs to be placed on the person in any way possible. Officer Slobodrian testified that he remembered not putting the handcuffs on particularly tight.
Once the Defendant was handcuffed and lying on his stomach, the Officers conducted a preliminary pat-down. They rolled him onto either side and patted down his pocket areas for weapons or contraband. Then, Officer Slobodrian stood the Defendant up and walked him towards the police car, in order to conduct a full frisk. Officer Slobodrian testified that the Defendant was hunched over towards his right side, holding his right side. Officer Slobodrian thought Mr. Colon was holding his right side because he had sustained an injury. While Officer Slobodrian was standing near the Defendant by the police car, Officer Ramos was attempting to remove his used taser cartridge because protocol requires that the cartridge be retained and logged as evidence.
E. Discovery of the Handgun and Detention of Mr. Colon
Officer Slobodrian then saw the Defendant reach around to his right front waistband, pull out a black semi-automatic handgun, and point it at the Officers. Officer Slobodrian yelled "Gun!" and began wrestling the Defendant for control of the weapon. Officer Ramos then drew his service weapon, pointed it at the Defendant, and ordered him to drop the gun. Because the Defendant and Officer Slobodrian were engaged in a physical struggle, Officer Ramos was not able to safely discharge his weapon. Instead, Officer Ramos drew his taser and applied the taser directly to the Defendant's neck and back, "dry stunning" the Defendant.
The taser had no immediate effect on the Defendant, however, and Officer Slobodrian was only able to disarm the Defendant after a struggle. During the struggle, the Defendant fell into the open driver's side of the police car while he continued kicking the Officers and attempting to flee. Ultimately, the Officers were only able to subdue the Defendant at about the time other officers responded to the scene.
At the scene the police recovered a Jennings Bryco .25 caliber semi-automatic handgun with one live round in the chamber and two rounds in the magazine. The police also recovered a cloth ...