The opinion of the court was delivered by: Tucker, J.
Currently pending before the Court is Defendant's Motion to Suppress (Doc. 21) and the Government's Response in Opposition thereto (Doc. 25). For the reasons discussed below, the Court grants Defendant's motion.
On November 10, 2009, defendant Joseph Saroeuth was charged by a federal grand jury sitting in the Eastern District of Pennsylvania in an indictment with one count of unlawfully possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The alleged facts giving rise to Defendant's indictment are as follows.
On June 22, 2010, at approximately 7:17 p.m., Philadelphia Police Radio Dispatch received an anonymous call. The caller stated her belief that there would be a shooting in the vicinity of 6th and Wolf Streets in Philadelphia. Approximately one minute later, at 7:18 p.m., Philadelphia Police 3rd District Officers Newell and Padilla, who were on patrol in plain clothes in an unmarked vehicle, received a radio dispatch call stating the following: "Person with a gun. A large fight. Several people armed with guns. No flash." The officers were proceeding southbound on 6th Street when they received the call.
In response, the officers proceeded to the scene, just south of the corner of Wolf and 6th Streets. Upon arrival, the officers observed a large group of approximately fifteen to twenty Asian adult and teenage males dispersing, but no fight in progress. Officers Newell and Padilla also recognized Mr. Saroeuth, with whom they were familiar from previous contacts on the street, as well as previous arrests. The officers were aware that Mr. Saroeuth was a member of a well known Asian gang. During previous casual encounters with the officers, Mr. Saroeuth had been cooperative, agreeing to speak with them voluntarily.
Officer Padilla stopped the unmarked patrol vehicle in the middle of the street. Officer Newell emerged from the halted vehicle and directly approached Mr. Saroeuth. Officer Newell inquired, "Joe, everything all right, everything cool?" Immediately after posing this question, Mr. Saroeuth ignored Newell, mounted his bicycle, and rode away northbound on 6th Street. At approximately 7:20 p.m., the officers began to pursue Mr. Saroeuth and called in the following flash: "Asian male, on a bike, blue shorts, white t-shirt, long hair, long hair, eastbound on Wolf." As Mr. Saroeuth began to flee, Officer Newell noticed that Mr. Saroeuth was holding his right pants pocket. While calling in Mr. Saroeuth's description, Officer Newell also observed a marked police vehicle approaching southbound on 6th Street, just north of Mr. Saroeuth. Turning eastbound on Wolf Street, Mr. Saroeuth made a right away from the approaching vehicle. Mr. Saroeuth continually held his right pants pocket throughout the encounter.
Next, Mr. Saroeuth alighted from his bicycle and ran into the park, where he was confronted by Officers Newell and Padilla, who were approaching him from the south. Newell drew his service pistol, ordering Mr. Saroeuth to drop to the ground. At that point, Mr. Saroeuth immediately went down to the ground, putting his hands up. Officer Newell patted down Mr. Saroeuth and felt what he believed to be a firearm. Next, Officer Newell recovered from Mr. Saroeuth's right pants pocket a .38 caliber special revolver, loaded with five rounds of ammunition. After recovering the gun, radio communications between officers continued. A uniformed police sergeant from another location in the area inquired about whether there was a complainant or witnesses at the scene, to which Officer Newell replied "negative." Officer Newell then called his own police sergeant over radio, and was instructed by his sergeant to contact him via cell phone.
Prior to Mr. Saroeuth's arrest on June 22, 2010, Officer Newell and Padilla were aware of a previous shooting two days prior in the same neighborhood, on the 2300 block of South 5th Street, one block east of the intersection of 6th and Wolf Streets. In the incident, a male matching the defendant's description fired a gun at a passing vehicle.
II. April 4, 2011 Suppression Hearing
On February 25, 2011, Defendant filed a Motion to Suppress (Doc. 21) the firearm recovered by Officer Newell prior to Defendant's arrest on June 22, 2010. The Government filed a Response in Opposition thereto (Doc. 31) on April 1, 2011. The Court held a hearing and oral argument on the motion on April 4, 2011. During the hearing, the Government presented evidence in the form of an audio tape with the radio calls from the day of the incident in question, and the testimony of Officer Newell. Additionally, the Government entered three exhibits: (1) color photos illustrating the area where the June 22, 2010 encounter took place; (2) a photograph of the gun seized from Defendant on the date in question; and (3) a signed property receipt describing the gun and ammunition seized from Defendant.
Defendant argues that the firearm recovered from Mr. Saroeuth by Officer Newell on June 22, 2010 must be suppressed because the search and seizure leading up to the recovery of this physical evidence violated Mr. Saroeuth's Fourth Amendment rights. There are three issues to be decided. First, the Court must determine at what point the officers' actions constituted a Terry stop. Secondly, the Court must determine whether the requisite reasonable suspicion existed for a Terry stop of Defendant, and lastly, whether there was probable cause for his arrest. For the reasons that follow, the Court finds that Defendant's Fourth Amendment rights were violated, and the physical evidence recovered from Mr. Saroeuth should be suppressed as fruit of the Defendant's unlawful arrest.
Defendant claims that Officer Newell's recovery of the loaded gun was in violation of his Fourth Amendment right against unlawful search and seizure because the initial pursuit of the Defendant constituted an unjustified Terry stop, as the officers lacked reasonable suspicion to pursue the Defendant, as the Defendant was merely exercising his lawful right to disengage from a casual encounter with the police. Furthermore, Defendant claims that Officer Newell lacked the probable cause needed to search Defendant's person and seize the loaded gun. Defendant pointed out that in the pursuit, Officer Newell curiously failed to mention in ...