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United States v. Stallings

February 22, 2010


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


Acting on an anonymous tip, police seized two guns from the car of Defendant Sam Stallings. The grand jury charged Defendant with one count of being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). Defendant moved to suppress both guns on Fourth Amendment grounds. (Doc. No. 19.) On January 22, 2010, I held an evidentiary hearing, after which I denied the Motion and stated that I would issue this Memorandum setting forth my findings and conclusions pursuant to Fed. R. Crim. P. 12(d).


At the January 22nd suppression hearing, the Government presented the testimony of Philadelphia Police Officers Ivan Rosado and David Marcellino, photographs of Defendant's car, and other evidence relating to the seizure of the guns. Defendant presented no evidence. I credit the testimony of both Officers, and I find that the Government has proven the following facts by a preponderance of the evidence.

1. Ivan Rosado has been a Philadelphia Police Officer for eleven years and has been assigned to the Philadelphia Highway Patrol for the past five and a half years. (1/22/10 Tr. at 3:7-11.) David Marcellino, a Philadelphia Police Officer for over ten years, has been assigned to Highway Patrol for six years. (Id. at 45:1) As members of Highway Patrol, Officers Rosado and Marcellino are assigned to neighborhoods "where they have gun violence and robberies." (Id. at 3:14-17.) The neighborhood in northwest Philadelphia where the events giving rise to this matter took place is a high-crime area, with "a lot of gun crimes, a lot of shootings, a lot of robberies." (Id. at 17:2-4; 6:24-25; 40:3-9.) In recent years, several police officers -- most recently, Officer Charles Cassidy -- have been shot and killed while patrolling the neighborhood. (Id. at 17:1-5.)

2. On the night of April 4, 2009, Officers Rosado and Marcellino were patrolling in a marked police car. (Id. at 3:20-4:17; 9:25.) "It was dark... really dark" at approximately 8:15 p.m., when a woman flagged the Officers down as they approached the corner of 21st and Madarie Streets. (Id. at 4:20-25; 16:20-23; 45:17-21.) The woman was African-American, wearing a three-quarter length black leather jacket and jeans. (Id. at 25:1-3.) The Officers were concerned that she might be the victim of a crime. (Id. at 25:14-15.) The woman told the Officers that a black man with a gun was around the corner sitting in a black Cadillac with chrome rims. (Id. at 5:18-25; 35:21; 45: 17-20.) The Officers were anxious to take immediate action. (Id. at 41:20-25; 42:1-7) ("[S]he's telling me something serious, there's a gun, there's a man armed with a gun in a Cadillac... I want to get there before he leaves or something happens."). Accordingly, they drove around the corner to investigate without first learning the woman's identity. (Id. at 5:21-22; 46:11-12.) ("She's not giving me a report of [a] stolen car... I'm going to get around the corner as fast as I can and investigate.")

3. As the Officers turned the corner and approached 21st and Chelten Streets, they saw only one car on the street: a black Cadillac with chrome rims. (Id. at 5:22-25; 46:11-12.) The Officers drove in the direction of the Cadillac, which was parked directly facing the Officers. (Id. at 46:15-18.) As the Officers passed the Cadillac, they saw Defendant, who is African-American, in the driver's seat. (Id. at 5:25; 46:15-18.) As soon as Defendant saw the Officers, "[h]is seat starts going back... [s]tarts reclining the seat of the Cadillac and he starts going back, back." (Id. at 6:5-10.) "And as [the Officers] were passing him, he leaned back even more." (Id. at 46:17-18.) The Officers made a u-turn, pulled up behind the Cadillac, and shined a spotlight on the car. (Id. at 10:23; 46:24-25.) The Officers then left their patrol car and walked toward the Cadillac. Officer Rosado approached on the driver's side while Officer Marcellino approached on the passenger side. (Id. at 10:6-7; 47:1-4.)

4. Defendant was still in the driver's seat, apparently talking on a cell phone. The area under the driver's seat was easily within Defendant's reach. (Gov. Ex. 1, 2.) Officer Rosado knocked on the driver's window. (1/22/10 Tr. at 11:4-7.) Defendant looked up at Officer Rosado, but did not otherwise respond. (Id.) Officer Rosado was concerned that he could not see Defendant's right hand. (Id. at 10:19-25.) ("I could see his left hand because he has a cellphone when I see it, but I can't see his right hand. I'm a little uncomfortable, you know. I got a complaint he has a gun, I don't see his right hand.") Officer Rosado then told Defendant to "open the door." (Id. at 6:12.) When Defendant did not respond, Officer Rosado opened the car door and said, "sir, somebody just said that you have a gun. Is there any weapons in this car?" (Id. at 6:12-14.) Defendant responded, "who called the cops on me?" (Id. at 6:14-16.) Officer Rosado was concerned that Defendant "[d]oesn't say no. He tells me, who called the cops on me. As an experienced officer, that's telling me something is wrong." (Id. at 23-25.) Still unable to see Defendant's right hand, Officer Rosado quickly frisked around Defendant's waist while he sat in the car. (Id. at 11:22-25.) Seeing that Defendant was "really nervous" and that "his hands are shaking," Officer Rosado asked Defendant to step out of the car and conducted a complete frisk as Defendant stood immediately outside the car. From where he stood, Defendant could reach into the passenger compartment through the open driver's door. (Id. at 6:18-20; 12:7-10; 48:1-4.)

5. As Officer Rosado frisked Defendant, Officer Marcellino walked to the open driver's door. (Id. at 48:17-22.) While Defendant remained seated, the area under the driver's seat was not visible to the Officers. Because he had moved the driver's seat as far back as possible, however, once Defendant got out of the car, the floor area underneath the seat was visible. (Id. at 19:1-5.) Standing outside the Cadillac, Officer Marcellino shined his flashlight on that area and immediately saw the handle of a gun. (Id. at 49:17-18.)

6. Officer Marcellino signaled to Officer Rosado that he had found a gun. (Id. at 12:25--13:4.) Anxious to avoid a struggle with Defendant, "a big guy," Officer Rosado did not say that Officer Marcellino had just found a gun. (Id. at 8:6) Rather, Officer Rosado walked Defendant to the patrol car and "place[d] him in the back... where everything's nice and calm." (Id. at 7:10-11.) While Officer Rosado escorted Defendant, Officer Marcellino retrieved from under the driver's seat a 9mm Sig Sauer semi-automatic handgun loaded with thirteen live rounds. (Id. at 50:9-11; Gov. Ex. 7.)

7. As Officer Rosado placed Defendant in the back seat of the patrol car, he asked Defendant if he had a license to carry a firearm. When Defendant responded that he did not, Officer Rosado handcuffed Defendant and began to ask him identification questions. (Id. at 15:15-17.) Defendant provided false identification papers indicating that he was "Craig Gay," to whom the Cadillac was registered. (Id. at 14: 24.)

8. After Officer Marcellino returned to the patrol car with the 9mm handgun, Defendant, still nervous, said "Come on, you got me. Lets get out of here." (Id. at 7:21-25; 8:1-2) As Officer Rosado testified: And to me, that was a little funny, why did he want, what's the rush? You're already arrested. I thought maybe we missed something, the guy is, you know, acting nervous, saying let's get out of here. You got me. So I told [Officer Marcellino] I think there might be something else in the [Cadillac]. (Id. at 7: 24-25; 8:1-4.)

9. The Officers returned to the Cadillac and began to search areas in the Cadillac that would have been within Defendant's reach as he sat in the car. (Id. at 8:4-10.) Because Defendant is a large man (approximately six feet three inches tall) and because his seat was fully reclined, he would have been able to reach the entire rear passenger area. (Id. at 8:6-8.) While searching that area, Officer Rosado noticed that the armrest in the middle of the back seat was down, revealing a hatch to the trunk. (Id. at 9-16.) Officer Rosado opened the hatch, and using a flashlight to look inside the trunk, saw a red bag and a semi-automatic rifle. (Id. at 20:14-23.) Defendant could have reached through the hatch to this trunk area as he sat reclined in the driver's seat. (Gov. Exs. 3-6.) Officer Rosado got out of the Cadillac, opened the trunk, and recovered a fully loaded black Ruger mini 30 assault rifle. (1/22/10 Tr. at 8:13-16; Gov. Ex. 8.)


The Government concedes that even though the Cadillac was registered to "Craig Gay," Defendant Sam Stallings has standing to object to the search of the car. See United States v. Baker, 221 F.3d 438, 443 (3d Cir. 2000) (a driver has "the requisite legitimate expectation of privacy to support standing for Fourth Amendment purposes" where "there is clear evidence of continuing possession and control, as well as no evidence that the driver obtained the car illegitimately"). ...

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