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United States of America v. Jamar Blackshear et al.

October 28, 2011

UNITED STATES OF AMERICA
v.
JAMAR BLACKSHEAR ET AL.



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

MEMORANDUM

Presently before the Court is Defendants Jamar Blackshear and Terrell Davis's Motion to Suppress Physical Evidence, pursuant to Federal Rule of Criminal Procedure 12(b)(3)(C). (ECF Nos. 41, 47.) For the following reasons, the Motion will be denied.

I. BACKGROUND

On April 13, 2011, a grand jury returned an indictment charging Defendants each with one count of possession with intent to distribute, and aiding and abetting the possession with intent to distribute, approximately 740 grams of a mixture and substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2; and one count of possession of, and aiding and abetting the possession of, a firearm in furtherance of a drug trafficking crime, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §§ 924(c)(1) and (2). (ECF No. 20.) On May 12, 2011, Defendants entered pleas of not guilty on both counts. (ECF Nos. 23, 24.)

On July 11, 2011, Blackshear filed a Motion to Suppress Physical Evidence (Blackshear Mot., ECF No. 41), and on August 3, 2011, Davis joined in that Motion and adopted the factual and legal arguments contained therein (Davis Mot., ECF No. 47). Davis also filed a separate memorandum of law in support of his Motion to Suppress. (Davis Br., ECF No. 47.) The Government responded to the Motion on August 19, 2011. (Gov't's Resp., ECF No. 52.)*fn1

A suppression hearing was held on September 6, 2011 and on September 9, 2011. (Min. Entries, ECF Nos. 58, 69.) At the September 6 hearing, we heard testimony from Philadelphia police officers Clifford Gilliam and Shawn Witherspoon of the Eighteenth Police District. Both officers were involved in the arrest of Defendants on January 21, 2011. (Sept. 6 Hr'g Tr. 7-10, 81-83, ECF Nos. 65-66.) At the conclusion of the September 6 hearing, we granted defense counsel's request for additional time to locate the rental vehicle in question to determine whether the driver's side window closest to the front of the vehicle was tinted. (Id. at 127-28.)*fn2 At the September 9 hearing, we had the opportunity to observe a Jeep Cherokee that had been brought to the holding area of the courthouse. (Sept. 9, Hr'g Tr. 23, Sept. 9, 2011, ECF Nos. 71-72.) Mark Moscatelli, the Risk Manager for Enterprise Leasing Company, the owner of the vehicle, confirmed that this Jeep Cherokee was the rental vehicle that had been leased by Defendant Blackshear. (Id. at 6-12.) At the September 9 hearing, we also heard testimony from defense witness Keith Festus, owner of Double Connect Wireless (id. at 4-5, 27), and Government witnesses Special Agent Rob Cucinotta of the Bureau of Alcohol, Tobacco, Firearms and Explosives and Detective Robert Conway of the Southwest Detectives of the Philadelphia Police Department (id. at 78-79, 101).*fn3 At the conclusion of the September 9 hearing, we granted defense counsel the opportunity to submit additional evidence with regard to the Jeep Cherokee no later than September 23, 2011. (Id. at 105; Sept. 9 Order, ECF No. 70.) On September 26, 2011, counsel for Davis submitted a letter advising that Davis would not be presenting any additional evidence concerning the Jeep Cherokee because the records obtained from Enterprise contained no pictures depicting the areas of the vehicle at issue here. (Ltr., Sept. 26, 2011 (on file with Court).) Blackshear's counsel submitted no additional evidence.

II. FINDINGS OF FACT

Clifford Gilliam is a Philadelphia police officer who has been assigned to the Eighteenth District of the Philadelphia Police Department for four years. (Sept. 6 Hr'g Tr. 8.) On January 21, 2011, Officer Gilliam was on vehicle patrol on the 5100 block of Market Street ("5100 Block") in Philadelphia. (Id. at 10.) At the time, the 5100 Block was a high-crime area where robberies, thefts and hand-to-hand narcotics trafficking occurred on the streets, and in vehicles parked on the streets, at all hours of the day. (Id. at 8-9, 82; see also Sept. 9 Hr'g Tr. 30.) Officer Gilliam's partner, Shawn Witherspoon, also an officer in the Eighteenth District for the last four years, was on foot patrol in that area at that time. (Sept. 6 Hr'g Tr. 10-11, 81.) Officer Gilliam picked up Officer Witherspoon, then parked his marked patrol car in the middle of the 5100 Block. (Id. at 10-11.) Both officers were in full uniform. (Id. at 10, 84.)

At 1:30 p.m., minutes after parking the patrol car, Officer Gilliam saw Defendants sitting in a black Jeep Cherokee, license plate number HRX0568 ("Jeep"), parked across the street. (Id. at 11-12; Police Report, Blackshear Fact Findings Ex. A, ECF No. 74.) The Jeep was parked on the north side of Market Street, facing westbound, and was approximately one traffic lane's width from the parked patrol car. (Sept. 6 Hr'g Tr. 42, 54, 85.) Blackshear was in the driver's seat, and Davis was in the front passenger seat of the Jeep. (Id. at 12-13.) The Jeep was not illegally parked, and the engine was running. (Id. at 44, 86.) The Jeep had three windows on each side. On the driver's side, the two side windows closest to the rear of the vehicle were tinted. The side window closest to the front of the Jeep was not tinted. (Id. at 15-16; Gov't Hr'g Ex. 2.)*fn4

Looking directly into the Jeep, Officer Gilliam witnessed through the side window closest to the front of the driver's side Defendants Blackshear and Davis speak with and then reach toward each other. Although Officer Gilliam could not see the Defendants' hands or determine whether they held anything in their hands, he concluded based upon his experience that their body motions were consistent with the exchanging of narcotics in a narcotics transaction. (Sept. 6 Hr'g Tr. 17-18.) At the time, Officer Witherspoon was doing paperwork and did not look in the direction of the Jeep. (Id. at 87.) After Officer Gilliam alerted Officer Witherspoon that he believed a narcotics transaction was taking place in the Jeep, Officer Witherspoon looked at the vehicle and both officers observed Defendants staring at the patrol car with expressions of shock on their faces. (Id. at 20, 87-88.)

Defendants quickly reached toward the back seat of the Jeep. Based on Officer Gilliam's experience, the reaching motions were consistent with a tossing motion. (Id. at 22-23, 89-90.) Although the officers could not see Defendants' hands as they reached toward the back seat, Officer Witherspoon saw their hands after Defendants finished their reaching motion and did not see anything in their hands. (Id. at 90.)

Defendants exited the Jeep. Blackshear quickly opened the driver's side door, departed from the Jeep and began briskly walking eastbound on Market Street. He did not pause to close the driver's side door, which was left partially open. (Id. at 24-25, 90-91.) In the meantime, Davis quickly exited from the passenger side of the Jeep and walked eastbound. (Id. at 91.) Defendants were hurried in their exit from the Jeep. (Id. at 25.)

Officer Gilliam intercepted Blackshear near the rear of the Jeep as he briskly walked eastbound on Market Street. Gilliam proceeded to stop Blackshear and requested that he place his hands on the Jeep. Gilliam then patted Blackshear down to determine whether he had any weapons on his person. (Id. at 26-27.) At this point, Officer Gilliam was not placing Blackshear under arrest, but rather was detaining him for investigation. He was free to leave depending on the results of the investigation. (Id. at 36.) Officer Gilliam asked Blackshear why he was on the 5100 Block. Blackshear responded that he was going to a cellular telephone store. (Id. at 29.) Based on his experience and training, and in view of Officer Gilliam's observations of the reaching motions inside the Jeep, Blackshear's hurried exit from the Jeep after he saw the officers, and the fact that Blackshear left the front door of the Jeep partially open upon leaving the vehicle, Gilliam did not find Blackshear's response credible. (Id.) While patting down Blackshear, Officer Gilliam felt a large bulge in Blackshear's pants pocket. (Id. at 27-28.) Based on his prior experience, Officer Gilliam thought that the bulge felt like a wad of money. (Id. at 28.) Officer Gilliam knew that a large amount of currency on one's person was consistent with the sale of narcotics, given that narcotics transactions and exchanges are a cash business. (Id. at 28-29.) Officer Gilliam did not find any weapons on Blackshear. (Id. at 28.)

Meanwhile, as Officer Gilliam was intercepting and patting down Blackshear, Officer Witherspoon intercepted Davis near the rear of the Jeep as Davis walked eastbound on Market Street. (Id. at 92-93.) At the time, Davis's hands were empty, but Officer Witherspoon observed a large bulge in Davis's pants pocket. (Id. at 93.) Based upon his observations of the Defendants in the Jeep, considering the fact that they were in a high-crime area, and considering Defendants' quick departure from the Jeep and the large bulge in Davis's pocket, Officer Witherspoon decided to pat down Davis for his own safety. (Id. at 94-95.) Officer Witherspoon determined that the bulge in the pocket felt like a wad of money. (Id. at 94-95, 118.) Based on his experience, Witherspoon knew that a large wad of cash on one's person is consistent with narcotics trafficking. He also knew that weapons or firearms and narcotics go together. (Id. at 95.) Officer Witherspoon subsequently placed Davis in the back of the patrol car ...


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