The opinion of the court was delivered by: Pratter, J.
There can be a fine line between good police work and improper over-zealousness when a suspect is apprehended before the conclusion of alleged criminal activity. In this case, the police stopped, and eventually arrested, Michael Matthews while he was allegedly in the initial stages of attempting to rob a check cashing store and, in the process, recovered a .22 caliber handgun, duct tape, and black gloves from Mr. Matthews' backpack. The Government contends this was good police work, while Mr. Matthews argues that he was the target of overzealous law enforcement activity.
Mr. Matthews is charged with one count of conspiracy to commit robbery which interfered with interstate commerce, in violation of 18 U.S.C. § 1951; two counts of attempted robbery which interfered with interstate commerce, in violation of 18 U.S.C. § 1951; one count of carrying and using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1); and, finally, one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
Mr. Matthews filed a Motion to Suppress all Physical Evidence recovered from him during his arrest on June 12, 2009. The Court received evidence during a suppression hearing on March 26, 2010, and, after the parties filed supplemental briefs, additional evidence on June 15, 2010, regarding the Philadelphia Police Department's policies and procedures attendant to handling materials in the possession of arrestees. For the reasons discussed below, Mr. Matthews' Motion to Suppress is denied.
This case stems from a 9-1-1 call Philadelphia Police Officer Michael Frisco received from an employee at a check cashing store located at 5300 Tabor Road in Philadelphia. The employee, Ms. Karima Nance, told Officer Frisco that two black males dressed in female Muslim garb appeared to be loitering outside the store for the past two days at or near the opening time for the store. (Hrg. 3/26 N.T. at 98.) Ms. Nance stated that the men drove a gold four-door car. (Hrg. 3/26 N.T. at 99; 117.) Ms. Nance showed police officers video surveillance film from outside of the check cashing store which depicted a parked, gold-colored vehicle, and a person dressed head to toe in a traditional Muslim burka with a covered face carrying a tote bag. (See Hrg. 3/26 N.T. at 99.)
The police subsequently decided to conduct surveillance of the check cashing store. Officer James Storm was assigned to conduct undercover surveillance of the store in the morning hours just before opening. (Hrg. 3/26 N.T. at 8; 101.) Officer Storm is an experienced surveillance officer who has spent ten years working on the burglary detail surveillance team. (Hrg. 3/26 N.T. at 5-6.) To design the surveillance plan, Officer Storm spoke to Officer Frisco and reviewed his accounts of Ms. Nance's complaint. (Hrg. 3/26 N.T. at 9-12.)
While conducting surveillance, on June 12, 2009, at around 8:30 a.m., Officer Storm saw a gold car immediately outside of the check cashing store. He believed the car matched the vehicle described by Ms. Nance. (Hrg. 3/26 N.T. at 19.) Officer Storm saw Mr. Matthews walking away from the passenger side of the car. (Hrg. 3/26 N.T. at 21.) Although Officer Storm did not see Mr. Matthews actually get out of the car, Officer Storm testified that based on the surrounding circumstances, he believed that Mr. Matthews "came from [the] vehicle." (Hrg. 3/26 N.T. at 23-24; 79-80.) When observed by Officer Storm, Mr. Matthews was carrying a backpack and kept looking back at Michael Anderson, who was sitting in the driver's seat of the car. (Hrg. 3/26 N.T. at 21-22; 50.) Mr. Anderson was talking on a cell phone and, in turn, was "looking behind out the rear window of the vehicle" toward Mr. Matthews. (Hrg. 3/26 N.T. at 22; 24.)
Office Storm saw Mr. Anderson "inch [his car] forward a little bit, stop, look back, talk, turn back around, move up further, stop, look back, start talking again . . . ." (Hrg. 3/26 N.T. at 24; 90; 92.) Officer Storm stated that he believed that Mr. Anderson and Mr. Matthews were communicating with each other because there was "no one else around . . . they are both talking, both looking directly at each other." (Hrg. 3/26 N.T. at 24-25.) Officer Storm also noticed that the license plate on the car was crooked, and after running a search on the license plate, he learned that it was an "unregistered stolen tag." (Hrg. 3/26 N.T. at 25; 27; 57.)
Mr. Matthews walked to a nearby bus stop on the corner of the street, but he did not appear to be looking in the direction of an oncoming bus. (Hrg. 3/26 N.T. at 85-6.) Rather, the Officer saw that Mr. Matthews was focused on the gold car and Mr. Anderson. (Hrg. 3/26 N.T. at 81; 85; 87; 92.) Mr. Matthews would walk, then stop, and then look back at Mr. Anderson. (Hrg. 3/26 N.T. at 92.)
While still under surveillance, Mr. Anderson got out of the car without locking the door, crossed the street, and hid behind a tree. (Hrg. 3/26 N.T. at 27-28; 58; see also Ex. 7, transcript of police radio transmission ("[L]ooks like he's either hiding behind a tree. He might be involved in that . . . check cashing place . . . .").) The officers on site then decided to arrest Mr. Anderson.
After officers arrested Mr. Anderson, Officer Storm directed Officer Frisco and Officer Joanne Pomeroy, who had arrived at the scene, to stop Mr. Matthews. (Hrg. 3/26 N.T. at 29; 64; 103; 134; see also Ex. 7 ("There might be another guy on the corner with a hat on and a green and tan jacket. Might be involved with him.").) ...