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United States v. Tillman

October 26, 2009

UNITED STATES OF AMERICA,
v.
GERALD TILLMAN, DEFENDANT.



The opinion of the court was delivered by: Gary L. Lancaster, Chief Judge

MEMORANDUM AND ORDER

Defendant Gerald Tillman moves the court to suppress any reference during trial to an April 8, 2005, stop that resulted in the seizure of $19,000 in cash from his vehicle. [Doc. No. 88]. Defendant has standing to present this motion. The principal issues presented by the motion are whether the stop was lawful and whether defendant's verbal consent to the search was knowing and voluntary. A suppression hearing was held on October 13, 2009.

Defendant contends that the stop and search of his Gran Prix was unlawful in violation of the Fourth Amendment of the United States Constitution because it was made 1) without a warrant, 2) not pursuant to any exception to the 4th Amendment, and 3) without valid consent. Accordingly, defendant argues that the court should suppress any reference to the stop, the currency, and a firearm found but not seized.

The government opposes the motion, contending that the stop was lawful and the defendant's consent to search the vehicle was knowing and voluntary. [Doc. No. 93].

The court has considered the evidence introduced at the suppression hearing and is prepared to rule. For the following reasons, defendant's motion to suppress is denied.

I. FINDINGS OF FACT

The testimony heard at the suppression hearing was contradictory. As such, the court had to assess witness credibility. In doing so, the court considered the traditional factors of assessing a witness's credibility, including: 1) the opportunity and ability of the witness to see or hear or know the things about which the witness testified; 2) the quality of the witness's knowledge, understanding, and memory; 3) the witness's appearance, behavior, and manner while testifying; 4) whether the witness has an interest in the outcome of the case or any motive, bias, or prejudice; and 5) whether the witness's testimony was consistent or inconsistent with other evidence.

Taking those factors into consideration, we find the testimony of Detective Dominic Falascino to be credible. The credible evidence introduced at the hearing establishes the following:

On April 8, 2005, the Pittsburgh Police Department received an anonymous tip that four black males were at the corner of North Charles Street and Kenwood Avenue on Pittsburgh's North Side, putting on bulletproof vests and displaying guns. That area on the North Side of Pittsburgh is known for gang activity. According to the tip, the men were driving a black Chevy Suburban and a green Pontiac Gran Prix, both with tinted windows. Detective Falascino and three other plain-clothed officers reported to the scene within minutes, arriving in three unmarked police cars. The officers identified a Suburban and a Gran Prix, which were traveling in tandem, that matched the description from the tip and followed them. The two cars split up, and Falascino followed the Gran Prix to a parking lot located on Bizet Way. At that point, Tillman, who was the driver, and a passenger exited the vehicle. Falascino and the other officers then stopped, exited their vehicles and approached on foot with their guns drawn.

The officers told Tillman about the tip and the information it conveyed. Tillman, looking relieved, explained that there had been a misunderstanding and that he and his friend had paint ball equipment in his car. At that point, the tension eased and the mood lightened considerably. Falascino and the other detectives holstered their guns, and patted Tillman and his passenger down for weapons. At no point was Tillman handcuffed. Tillman told the officers that in addition to the paint ball equipment, he also had a real firearm in the car that was registered to him. Detective Falascino asked Tillman if he could enter the car and retrieve the firearm, to which Tillman consented.

In the car, the police found a Bryco semi-automatic pistol under the floormat of the rear passenger side. The pistol was licensed and registered to Tillman. Near where the handgun was recovered, however, the officers noticed bulges in two pockets attached to the back of the front driver and passenger side seats. Suspecting that the bulges may contain additional weapons, the police searched the bulges and found three bundles containing $19,000 in cash. When questioned about the money, Tillman responded that it came from "his people." Pressed further, Tillman said the money came from his aunt and uncle and that it was a loan. However, he could not say what the loan was for, nor could he provide a phone number for his aunt to confirm the origin of the cash. He also did not know how much money there was in the bundles. Tillman was not placed under arrest at this time, and his gun was returned to him, but the officers seized the cash.

II. STATEMENT OF REASONS

Tillman contends that the stop was unlawful and that his consent to search the car was involuntary. The Fourth Amendment protects people against unreasonable searches and seizures. Warrantless searches are per se unreasonable subject only to a few specifically established and well delineated exceptions. No warrant authorized the search here, therefore, the burden is on the government to prove by a preponderance ...


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