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United States v. Cherry

August 9, 2010


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



Defendant, Grinnell Cherry, is charged in a one-count Indictment with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Presently before the Court are Defendant's Motion To Suppress Physical Evidence and the Government's Motion In Limine To Admit Evidence Under Fed. R. Evid. 609(a)(1). The Court held a hearing on defendant's Motion to Suppress on June 10, 2010. The Court also heard oral argument on the government's Motion In Limine at the conclusion of the suppression hearing. For the reasons set forth below, defendant's Motion to Suppress is denied and the government's Motion In Limine is granted in part and denied in part.


In analyzing defendant's Motion to Suppress, which seeks the suppression of a firearm recovered during a traffic stop of defendant's vehicle on October 31, 2009, the Court must first address the Police Officer Jeffrey Middleton's earlier encounter with defendant on December 31, 2008. Middleton is a Philadelphia Police Officer who participated in vehicle stops of defendant on both dates.

At 5:20 p.m. on December 31, 2008, Officer Middleton attempted to stop a vehicle driven by defendant. (Suppression Hr'g Tr. 9, June 10, 2010.) As Middleton and his partner exited their car, defendant drove off, and a high speed vehicle pursuit ensued. (Id.) The pursuit ended when defendant crashed into another vehicle, injuring two adults and one child. (Id. at 10.) Middleton placed defendant under arrest and subsequently performed a driver's license record check on him, using the number listed on defendant's state issued photo ID. (Id. at 10-11.) The record check revealed that defendant "did not have a valid driver's license," and that "he had a suspended... Pennsylvania State photo ID."*fn1 (Id. at 11.) Accordingly, Middleton cited defendant for reckless driving and driving without a license. (Gov't. Supp. Resp. at 2; Ex. G2.) With respect to the citation, Middleton testified that individuals are not permitted to operate motor vehicles with only a photo ID. (Suppression Hr'g Tr. 12, June 10, 2010.)

On October 31, 2009, the date of the crime charged in the Indictment, Middleton was on patrol in a marked patrol car with his partner, Police Officer Daniel Eckert. (Id. at 7.) At approximately 11:20 p.m., Middleton saw defendant, who he recognized from the incident of December 31, 2008, enter the driver's seat of a minivan. (Id. at 7-8, 13.) The minivan was parked at the intersection of 74th Street and Andrews Avenue. (Id.) Defendant drove out of the parking space and proceeded northbound on Andrews Avenue toward Cheltenham Avenue. (Id. at 13.)

Based on his belief that defendant was violating 75 Pa. C.S.A. § 1501(a), which prohibits the operation of a motor vehicle on public roads without a valid driver's license,*fn2 Middleton positioned his police car behind the minivan and activated its lights and siren. (Id. at 13, 17.) Defendant pulled over without incident in front of Lynnewood Gardens, an apartment complex, on the northwest corner of Cheltenham Avenue. (Id. at 14.) Middleton and Eckert exited their patrol car; Middleton approached the driver side and Eckert the passenger side. (Id. at 15.) When they reached the rear of the vehicle, Eckert saw a handgun "flying out of the passenger side window." (Id. at 15, 47.) Eckert alerted Middleton, and proceeded to recover the weapon. (Id. at 48.) The gun, which was found approximately eight feet from the passenger window, was loaded with eleven live rounds.*fn3 (Id. at 48.) Eckert cleared the weapon and placed a property tag on it. (Id. at 49.)

Upon hearing Eckert's alert, Middleton asked defendant to exit the vehicle and placed him under arrest. (Id. at 16.) A subsequent search of the vehicle revealed that defendant was the only occupant. (Id.) In answer to government counsel's question regarding whether Middleton "[ran defendant's] information to find out if he had a valid driver's license" following the arrest, Middleton responded that he did, and that he determined that defendant "had a suspended photo ID." (Id. at 16.)

Regarding his basis for stopping defendant's vehicle on October 31, 2009, Middleton testified that he "had [no] reason whatsoever to believe that [defendant] could have obtained a driver's license [since December 31, 2008]." (Id. at 18.) Middleton conceded that he did not know the disposition of defendant's December 31 arrest. (Id. at 21.) Nonetheless, he cited the following factors as the basis for his belief: (1) the previous incident involved "fleeing police, driving through traffic stop signs, driving through red lights, [and] driving recklessly," and ultimately resulted in an accident that injured three people; (2) in light of such violations, which would appear on defendant's driving history, defendant would be unable to obtain a license within ten months if he applied for one; and (3) during his seven-and-one-half-years on the police force, Middleton was not aware of any instance in which a driver, whose license was suspended because of a traffic ticket he issued, had that license reinstated within ten months of the suspension.*fn4 (Id. at 7, 22, 34-35.)

Defendant filed a Motion to Suppress the firearm on April 14, 2010. The Government filed a Response and a Supplemental Response to the defendant's motion on May 20, 2010 and June 10, 2010 respectively. The Court held a hearing on defendant's Motion to Suppress on June 10, 2010. Following the suppression hearing, defendant filed a reply to the government's Supplemental Response on June 15, 2010.


In his Motion to Suppress, defendant avers that (1) the traffic stop in question was an unreasonable seizure under the Fourth and Fourteenth Amendments, and (2) the gun, a fruit of the unlawful seizure, should be suppressed. (Def.'s Mot. at 4, 8). Defendant alleges that Middleton "did not possess sufficient reasonable suspicion to believe that a traffic violation had been committed." (Def.'s Resp. at 8).

The government concedes that the traffic stop was a seizure. (Gov't. Resp. at 4). However, the government argues that Middleton's determination that defendant "would have been unable to obtain a valid driver's license during the intervening period [December 31, 2008 to October 31, 2009] constituted... reasonable suspicion justifying the traffic stop." (Gov't. Resp. at 5). For the reasons set forth below, the Court concludes that the traffic stop was a reasonable seizure under the Fourth Amendment.

A. Legal Standard

"On a motion to suppress, the government bears the burden of showing that each individual act constituting a search or seizure under the Fourth Amendment was reasonable." United States v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005) (citing United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995)). The applicable burden is proof by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 178 n.14 (1974).

Stopping and detaining a vehicle and its occupants is a seizure under the Fourth Amendment to the United States Constitution. Johnson, 63 F.3d at 245. To be reasonable under the Fourth Amendment, a vehicle stop must be based on reasonable suspicion, not probable cause. United States v. Delfin-Colina, 464 F.3d 392, 397 (3d Cir. 2006). Under Third Circuit precedent, "a traffic stop will be deemed a reasonable 'seizure' when an objective review of the facts shows that an officer possessed specific, articulable facts that an individual was violating a traffic law at the time of the stop." Id. at 398. Moreover, "an officer need not be factually accurate in [his] belief that a traffic law had been violated but, instead, need only produce facts establishing that [he] reasonably believed that a violation had taken place." Id. This standard has been described as "not ...

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