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United States v. Hicks

September 23, 2009


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


In a two-count indictment, the Government charged Damian Hicks and Alexander Smith as felons in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The weapons underlying the charges were found during an encounter that Defendants and an additional person had with an officer from the Reading Police Department. Defendants were in a legally parked vehicle when the officer received a dispatch that caused him to investigate why the car had been parked with the engine running for over an hour with the occupants inside the vehicle. Hicks and Smith moved to suppress the guns found in the vehicle, arguing that the officer's actions constituted an unlawful search in violation of the Fourth Amendment of the United States Constitution. The Court held a hearing on the motion on September 4, 2009. For the reasons that follow, the Court grants the motion.


On February 1, 2007, uniformed Reading Police Officer Kevin Haser, who had over four years on the force at the time, was on patrol by himself in a marked police cruiser when he received a radio call at 9:18 in the evening. (Sept. 4, 2009 Hrg. Tr. at 8-9, 69.) The dispatch reported a suspicious white Dodge Intrepid with tinted windows in the zero hundred block of Carrol Street in Reading that had been parked on the block for over an hour with the engine running. (Id. at 9-10.)

The original caller stated that a female -- perhaps the wife of a contractor working for the caller -- was in the car. (Id. at 42-43.)As a result of the dispatch, Officer Haser, who was two blocks away from the reported location of the Intrepid, went to the zero hundred block of Carrol Street. (Id. at 10.) Upon arriving on the scene, Officer Haser saw the Intrepid legally parked on the north side of the street, facing west. (Id. at 44.) Carrol Street is a two-way street wide enough for parking on both sides of the street as well as two lanes of travel. (Id. at 11.) Officer Haser double parked his patrol car in the westbound lane such that he was facing traffic. (Id. at 11-12, 44 ("I was parked, pretty much double parked facing the wrong direction.").) He stopped such that his patrol car was facing the Intrepid. (Id. at 45.) From the perspective of one inside the Intrepid, Officer Haser's car was to the left of the Intrepid and parked five to ten feet in front of it. (Id. at 13, 71-72.) The Intrepid would not have been able to move forward because another parked car was in front of it and Officer Haser's vehicle was in front of the Intrepid blocking its path into the travel lane. (Id. at 72.) Furthermore, there was a parked vehicle "a little ways behind [the Intrepid]." (Id.) When he arrived on the scene, Officer Haser turned on his overhead spot light and aimed it at the Intrepid, revealing at least two male occupants in the vehicle. (Id. at 12-13, 46-47.)

Officer Haser exited his car and approached the driver's side of the Intrepid. (Id. at 13.) He motioned for the driver, identified as Defendant Hicks, to roll down his window, and the driver complied. (Id. at 14, 48.) Officer Haser shone his flashlight into the car and while standing less than a foot from the driver, began asking questions, such as "what are you guys doing here, why are you here . . . where are you coming from . . . ?" (Id. at 14-15, 49.) In response, Quinten Lee, who was seated in the front passenger's seat, responded that they were waiting for the mother of his child. (Id. at 50.) The occupants claimed that they were coming from Wendy's, which was about four blocks away. (Id. at 16, 51.) After these initial questions, Officer Haser instructed the driver to shut off the engine of the Intrepid. (Id. at 58-59.)

After the engine was shut off, Officer Haser asked Hicks his name and for identification. Officer Haser testified that, at that point, Officer Zawilla was on the scene as back-up.*fn1 (Id. at 51-52.) Hicks produced a Pennsylvania driver's license which he held in his hand while Officer Haser copied the name, address and birth date on the license into his notebook. (Id. at 17-18.) Officer Haser proceeded to the front passenger seat, where Lee was seated, and asked Lee for his name, address, date of birth, and identification. (Id. at 18.) Lee produced a state-issued identification card which Officer Haser examined. (Id. at 18-19.) Officer Haser then turned his attention to Smith, who was sitting in the Intrepid's back seat. (Id. at 19.) When asked the same questions as his cohorts, Smith replied that his name was Michael Stewart and stated that while he had identification, he did not have any on him at that time. (Id. at 19-20.) After he received their information, Officer Haser used the hand microphone on his radio to run the names of the Intrepid's occupants for outstanding warrants and confirm the information provided. (Id. at 20.) A couple of minutes passed before Officer Haser learned that Hicks had a valid driver's license and no warrants; that Lee had an outstanding scofflaw warrant for his arrest; and that no record of a Michael Stewart existed. (Id. at 22-23.) Officer Haser confirmed that he properly took down the information from "Michael Stewart" but again confirmed that no record existed for that name. (Id. at 25.) At that point, Officer Haser concluded that "Michael Stewart" was a fictitious name. (Id.) "Michael Stewart" then responded to Officer Haser that he had no form of identification on his person and that Officer Haser "could check him if [he] wanted to." (Id. at 26.) Officer Haser then placed Lee under arrest and put him in the back of the patrol vehicle. (Id. at 26-28.) He then returned to the Intrepid and asked Smith, a/k/a "Michael Stewart," if he could search him for identification. (Id. at 28.) As Smith exited the vehicle and while being searched for identification, Officer Haser noticed a small packet of marijuana on the ground directly between Smith's feet where Smith was standing which had not been there prior to the search of Smith. (Id. at 29-30, 62-63.) Officer Haser then placed Smith under arrest. (Id. at 31.) Officer Haser then asked Hicks to exit the vehicle so that he could search the back seat for more drugs. (Id. at 33.) Next, Officer Haser instructed Hicks to walk to the trunk of the Intrepid and place his hands on the trunk; the back-up officers watched Hicks while Officer Haser searched the Intrepid. (Id. at 33-34, 65.) While conducting the search, Officer Haser picked up a black knit hat on the back seat to reveal a .45 caliber Warthog pistol. (Id. at 35.) Officer Haser then told his back-up to handcuff Hicks. (Id. at 36.) Hicks ran but was quickly apprehended. (Id.) Eventually, pictures of the scene were taken and the Intrepid was taken to City Hall in Reading where Hicks was read his Miranda rights and consented to a search of the vehicle. (Id. at 38-39, 83, 91-93.) The search uncovered a black nine millimeter Beretta pistol, a bag of plastic zip ties or wire ties, black masks, zip tie handcuffs in the trunk, and a digital scale.*fn2 (Id. at 39.)


The movant bears the burden of proving, by a preponderance of the evidence, that the evidence in question should be suppressed. United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995) (citing United States v. Acosta, 965 F.2d 1248, 1256 n.9 (3d Cir. 1992)). Once the defendant establishes that the police conducted a warrantless search, however, the burden shifts to the government to show that the search was reasonable. Id.


A. Seizure

The Fourth Amendment to the United States Constitution protects against "unreasonable searches and seizures." Defendants' motion to suppress requires that this Court first address when Defendants were seized, thereby implicating the Fourth Amendment. Only then can the Court address whether Officer Haser's ran afoul of the Fourth Amendment. See United States v. Crandell, 554 F.3d 79, 84 (3d Cir. 2009) (stating that "[b]efore even addressing whether the police had reasonable suspicion to approach [and engage an individual], the District Court [must first inquire] into whether [the individual was] seized by the police within the meaning of the Fourth Amendment.").

Although a search or seizure involving law enforcement generally requires a warrant based on probable cause, not every encounter between citizens and police officers implicates the Fourth Amendment. "Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen." United States v. Smith, 575 F.3d 308, 312 (3d Cir. 2009) (quoting United States v. Drayton, 536 U.S. 194, 200 (2002)). An integral part of police work involves daily interactions between officers and private citizens, including routine conversation and questions posed by police officers. These routine interactions do not, without more, constitute a seizure. See United States v. Lockett, 406 F.3d 207, 211 (3d Cir. 2005); see also Crandell, 554 F.3d at 84 ("The Supreme Court has made clear that a Fourth Amendment 'seizure does not occur simply because a police officer approaches an individual and asks a few questions.'" (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). Furthermore, these interactions need not be based on any suspicion of wrongdoing. United States v. Williams, 413 F.3d 347, 352 (3d Cir. 2005).

Rather, for a seizure to occur, a police officer's conduct, either through physical force or show of authority, must have in some way restrained an individual's liberty. Crandell, 554 F.3d at 84 (quoting Terry v. Ohio, 392 U.S. 1, 19-20 n.16 (1968); see also Bostick, 501 U.S. at 434; California v. Hodari D., 499 U.S. 621, 626-28 (1991) (holding that seizure required physical force by police or submission to assertion of police authority). An individual is seized when, considering all of the circumstances surrounding the encounter, the conduct of the officer would cause a reasonable person to believe that he was not free to ignore the police and continue with his business. Johnson v. Campbell, 332 F.3d 199, 205 (3d Cir. 2003) (quoting Bostick, 501 U.S. at 436); see also Smith, 575 F.3d at 313-14. If the alleged seizure is based upon a show of authority, the defendant must have submitted to the show of authority or else there is no seizure. United States v. Valentine, 232 F.3d 350, 358 (3d Cir. ...

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