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United States v. Savage

December 29, 2009


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


In a one-count indictment, the Government charged Clifton Savage as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Philadelphia police recovered the weapon underlying the charges when they responded to a report of an ongoing crime and encountered Savage at the scene. Savage now moves to suppress the gun that police found on his person during that encounter, arguing that the officers' actions constituted an illegal search and seizure in violation of the Fourth Amendment to the United States Constitution. Savage also moves to suppress statements that he made to police, arguing that the police violated his Fifth Amendment rights pursuant to Miranda v. Arizona. The Court held a hearing on the motion on December 17, 2009. For the reasons that follow, the Court denies the motion.


At approximately 12:44 a.m. on November 12, 2008, Philadelphia police received an emergency telephone call from a woman inside her second-floor apartment (apartment B2) at 5516 West Haverford Avenue. (Ex. D-1 [Philadelphia PD Incident History Details].) The woman reported that a man she knew had a gun and was banging on her door. (Dec. 17, 2009 Hrg. Tr. at 7.) Responding to the call from a short distance away, uniformed Officers Daniel Ayres and Daniel Mason arrived at the apartment within a minute of receiving word from dispatch. (Id. at 9, 35, 40.) The officers entered the apartment building through an unlocked common door and proceeded down the steps to the basement, based on the mistaken belief that was where B2 was located. (Id. at 10, 11, 25, 40.) Quickly realizing that apartment B2 was not in the basement, Officers Ayres and Mason proceeded back up the steps to the second floor. (Id. at 11, 25, 40.) The officers did not see anyone in the building until they reached the second floor. (Id. at 10-11.)

Officer Ayres was the first to emerge from the stairwell onto the second floor, with Officer Mason behind him. (Id. at 15, 42.) Upon exiting the stairwell, Officer Ayres immediately saw an African-American male, later identified as Clifton Savage, three to four feet away from him in a small section of hallway to the right of the stairwell.]*fn1 (Id. at 12.) Savage, who was the only person in the hallway, was banging on the door of apartment B2. (Id. at 12.) Officer Ayres initially asked Savage "what's going on?" (Id. at 25-26, 42.) Continuing on his path to the door of apartment B2, Officer Ayres then asked Savage if he had a weapon. (Id. at 13-14, 25-26.) Savage answered affirmatively and began reaching into his pants pocket where he indicated that the gun was located. (Id.) It was only at that point that Officer Ayres drew his service pistol. (Id. at 15.) Officer Ayres told Savage to stop, and instructed him to place his hands on the wall. (Id.) Savage complied with this order. (Id. at 16.) Officer Mason then frisked Savage and discovered a .38 caliber pistol in Savage's right front pants pocket. (Id.) The officers then handcuffed Savage. (Id.) While Savage was handcuffed in the hallway, the woman from apartment B2 opened her door to talk to police. (Id. at 16-17.) The officers brought Savage outside, and placed him in their police cruiser before returning upstairs to talk to the woman, who confirmed that she knew Savage. (Id. at 17.)

Miranda warnings were given to Savage when he was interviewed by a detective at the station. (Id. at 31.)


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)). However, once the defendant establishes a basis for his motion, the burden shifts to the government to show that the search or seizure was reasonable. Id.


A. Fourth Amendment

The Fourth Amendment to the United States Constitution protects against "unreasonable searches and seizures." 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 United States v. Crandell, 554 F.3d 79, 84 (3d Cir. 2009) ("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).

Here, Officer Ayres posed two questions to Savage, while both men were in a common hallway. Savage was free to answer the officer or to ignore him. Officer Ayres issued no commands to Savage, nor did he draw his weapon, or indicate that Savage was compelled to answer his questions. No seizure resulted merely by the close proximity of Officer Ayres to Savage. Thus, at this point Savage was not seized, and the Fourth Amendment was therefore not implicated when Officer Ayres asked Savage if he had a weapon.

After Savage informed the officers that he had a gun and began to reach for it, Officer Ayres drew his weapon and ordered Savage to stop and put his hands on the wall. Savage complied with this command. Clearly, Savage was seized at this point. See Crandell, 554 F.3d at 84; Terry v. Ohio, 392 U.S. 1, 19-20 n.16 (1968). Officer Mason frisked Savage and recovered a pistol from Savage's pants pocket.

The stop was lawful. An officer may conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. Terry, 392 U.S. 1, 30. To determine if reasonable suspicion existed at the time of the encounter, courts use a "totality of the circumstances test." Alabama v. White, 496 U.S. 325, 328 (1990). Police officers' reasonable suspicion can arise from their own observations. See Terry, 392 U.S. at 28. In general, a court should consider: specialized knowledge and investigative inferences [of the officer], personal observation of suspicious behavior, information from sources that have proven to be reliable, and information from ...

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