The opinion of the court was delivered by: Juan R. Sánchez, Judge
On September 9, 2008, Defendant Hennard Bennett was charged in a two-count indictment with interfering with commerce by attempted robbery, in violation of 18 U.S.C. § 1951(a), and carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Bennett asks this Court to suppress physical evidence recovered during his arrest as well as identifications of Bennett made by two eyewitnesses.
Bennett argues his arrest, the witnesses' identification of him, and the search of his backpack violated his Constitutional rights. He argues his Fourth Amendment rights were violated by his initial stop and seizure as he ran down Felton Street and were violated by the warrantless search of the backpack he carried. He also argues his Due Process rights were violated because the show-up identification procedure police employed following his arrest was unduly suggestive. This Court finds police officers properly stopped and arrested Bennett as he fled down Felton Street. The Court further finds that, although the identification process used in Bennett's case was unduly suggestive, Thorne-Tucker's identification of Bennett is sufficiently reliable for use at trial. Thus, Bennett's motion to suppress her identification of him at the scene of his arrest will be denied. Finally, this Court finds police officers violated Bennett's Fourth Amendment rights through the warrantless search of the backpack he was carrying, therefore Bennett's motion to suppress physical evidence found in the backpack will be granted.
1. On March 13, 2008, at approximately 9:45 a.m., Erica Jefferson, an employee of Ace Check Cashing (Ace), arrived at the Ace location at 559 N. 63rd Street in Philadelphia, Pennsylvania to open the store for the day. As Jefferson unlocked the door to Ace, a man pushed her into the store. The man then followed Jefferson inside.
2. Mary Thorne-Tucker, an Ace customer, was standing outside the store around 9:45 a.m. She was one of a group of people who had formed a line outside while waiting for Ace to open. The man who pushed Jefferson inside was also among the group of people waiting for the store to open. Thorne-Tucker saw the man push Jefferson into the store. After a few seconds had passed, Thorne-Tucker grew concerned for Jefferson and entered the store to make sure she was okay.
3. Immediately inside of Ace's front door, there is a door which permits access from the entrance and lobby area into a glassed-in employee-only area. Thorne-Tucker observed Jefferson and the male individual standing near this door. The man was standing close behind Jefferson and appeared to be trying to force her to open the door so he could gain access to the employee-only area.
4. Thorne-Tucker observed Jefferson fumble with her keys, and then drop them. The man picked up the keys and returned them to Jefferson.
5. During this time, Thorne-Tucker heard the store's security alarm system counting down. Jefferson said she needed to disarm the alarm, but the man told her not to touch it. A few seconds later, the alarm went off.
6. Once the alarm sounded, the male immediately moved away from Jefferson, and exited the store. He walked past Thorne-Tucker as he left, and she observed he was a light-skinned African-American man with facial hair, wearing a brown or blue zip-up hooded sweatshirt, and carrying a dark brown or black backpack. Thorne-Tucker did not see the man's eyes because the upper half of his face was covered.
7. After the man left, Jefferson ran out of the building screaming and told the waiting customers that the man had tried to rob her.
8. Thorne-Tucker watched the suspect walk down 63rd Street. She followed the man and saw him walk across a vacant lot. At this point, Thorne-Tucker called 911 and related her observations to police. She said a man tried to rob the store and had walked across a vacant lot on 63rd Street. Thorne-Tucker lived near the Ace location, and was familiar with the neighborhood. She told police the man might be headed toward Felton Street or traveling south on Felton Street.
9. Police officers promptly arrived at the Ace location, and a few minutes after she placed the 911 call, an officer told Thorne-Tucker that the robbery suspect had been caught. Philadelphia Police Officer Thomasina Rozier then drove Thorne-Tucker and Jefferson to Felton Street, the location of Bennett's arrest.
10. Philadelphia Police Officer Andrew Prosser was on duty the morning of March 13, 2008. He heard a report over his police radio of a robbery in progress at the Ace location at 63rd Street and Haverford Avenue. Information from the police radio described the robbery suspect as an African-American male wearing a black hooded sweatshirt, black boots, a blue shirt and blue pants, and he was carrying a tan backpack. The radio report said the man was possibly armed with a handgun.
11. When Officer Prosser received this information, his vehicle was parked within three blocks of the Ace location, at the corner of Stiles Street and 62nd Street.
12. Officer Prosser immediately drove to Ace. When he arrived, Officer Rozier told him to proceed eastbound on Haverford Avenue to the 400 block of North Felton Street. Immediately after Officer Prosser turned from Haverford Avenue onto Felton Street he saw Bennett running south down the 400 block of Felton Street. Bennett was wearing a black hooded sweatshirt, a black hat, blue pants, and black boots, and he was carrying a tan backpack. Approximately ten seconds passed between when Officer Prosser originally heard the radio information and when he saw Bennett running down Felton Street.
13. Once Officer Prosser observed Bennett, he activated his lights and sirens and announced over police radio that he was pursuing a robbery suspect on Felton Street. When he neared Bennett, Officer Prosser exited the car, and yelled at to Bennett to stop running and show both of his hands. Bennett did not immediately stop, but moved away from Officer Prosser. Within seconds, another officer who had arrived on the scene, Officer Thomas Harris, tackled Bennett.
14. Officer Harris also had heard the police radio information reporting a robbery in progress at the Ace on North 63rd Street and subsequently began driving toward Felton Street. As soon as Officer Harris saw Bennett, he exited his vehicle and tackled Bennett.
15. When Officer Harris tackled Bennett, Officer Prosser drew his gun and kept ...