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United States of America v. Brian Mccullough

November 16, 2011

UNITED STATES OF AMERICA
v.
BRIAN MCCULLOUGH, DEFENDANT



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is a motion (Doc. 124) to suppress evidence filed by defendant Brian McCullough ("McCullough"). McCullough contends that his Fourth Amendment rights were violated when law enforcement officers unlawfully seized him on October 8, 2010. For the following reasons, the court will deny the motion.

I. Findings of Fact*fn1

On October 8, 2010, at approximately 10:13 p.m., law enforcement officials received a call from dispatch that shots had been fired near the intersection of North 18th Street and Regina Street, a high crime area in Harrisburg, Pennsylvania.*fn2 (Hr'g Tr. at 4-7, 31). Approximately two minutes later, two members of the Harrisburg Police Department's Street Crime Unit-Officer Milo Hooper ("Officer Hooper") and Adult Probation Officer Travis Banning ("Officer Banning")-arrived at the scene in an unmarked Chevy Tahoe. (Id. at 4, 6, 57-58). While driving south on North 18th Street approaching Carnation Street,*fn3 Officer Hooper and Officer Banning observed a group of males walking northbound on the west side of the street. (Id. at 8, 57-58). One of the individuals, later identified as Michael Hansley ("Hansley"), appeared to have an object in his hand, made a motion in the shadows, and then continued walking northbound on 18th Street with his left arm pinned against his body and his right arm freely swinging. (Id. at 9-12, 26, 61). Based on his training, Officer Hooper believed Hansley had a firearm in his waistband. (Id.at 11). A marked K-9 unit driven by Officer Tyron Meik ("Officer Meik"), a member of the Harrisburg Street Crimes Unit, also responded to the call from dispatch, and Officer Hooper indicated over the radio that he had spotted an individual who may have a gun on him. (Id. at 13, 76-77). After Hansley walked past Officer Hooper's and Officer Banning's vehicle, Officer Meik shined a spotlight on Hansley from his marked K-9 unit. (Id. at 13, 77). Officer Meik followed Hansley as he turned left onto Carnation Street walking westbound at a brisk pace with several other individuals. (Id. at 14, 77-78). Hansley looked at Officer Meik and then ran southbound alongside a residence towards Regina Street. (Id. at 78-80). Officer Meik then contacted the other units in the area regarding Hansley's whereabouts.*fn4 (Id. at 79-80).

Meanwhile, Officer Hooper had continued southbound on 18th Street and turned right onto the 1700 block of Regina Street. (Id. at 17). Officer Hooper observed Hansley emerge from between two houses on the north side of Regina Street running westbound. (Id.) Next, Officer Hooper noticed an individual, later identified as McCullough, wearing a black jacket, black pants, and a white shirt emerge from between two different houses on Regina Street. (Id. at 18-19, 27-28). Hansley ran westbound towards McCullough, briefly stopped, interacted with McCullough, and then walked in the opposite direction towards Officers Hooper and Banning. (Id. at 18, 23-24). McCullough took off at a run between two houses on Regina Street heading towards Carnation Street. (Id.)

Officer Hooper testified that he believed that the brief interaction between Hansley and McCullough involved an exchange of some sort due to their close proximity and the fact that Hansley immediately stopped running after the interaction.*fn5 (Id. at 23-24, 34-35). During or immediately after the brief interaction between Hansley and McCullough, Officer Banning exited the vehicle and yelled stop while Officer Hooper provided a description of McCullough over the radio and notified the other units in the area that McCullough had run from the officers towards Carnation Street. (Id. at 27, 64-66).Hansley put his hands in the air and was later arrested by the officers. (Hr'g Tr. at 25, 45).

Officer Jeffrey Cook ("Officer Cook") and his partner Probation Officer Allen Shipley ("Officer Shipley"), members of the Harrisburg Street Crime Unit, heard Officer Hooper's report about McCullough running towards Carnation Street on their radio and began searching backyards between Regina Street and Carnation Street. (Id. at 71). Officer Cook observed McCullough laying on the porch of a vacant house located at 1706 Regina Street. (Id.) Officer Cook drew his weapon and yelled "police, let me see your hands, let me see your hands" multiple times, but McCullough failed to comply. (Id. at 71, 85) Instead, McCullough put a white plastic object into his pants. (Id. at 73, 84-85).

Officer Joshua Hammer and Adult Probation Officer McConnell, members of the Harrisburg Street Crime Unit, also responded to Officer Hooper's report about McCullough running towards Carnation Street. (Id. at 83-84). Officer Hammer parked his vehicle on Regina Street, heard Officer Cook's commands, and ran over to the yard of 1706 Regina Street. (Id. at 84). Officer Hammer repeatedly yelled "show me your hands" and slowly approached McCullough. (Id. 86-87). After Officers Hammer and Cook made several more commands, McCullough put his hands in the air and said "I don't have anything on me" as Officer Hammer placed him in handcuffs. (Id. at 73, 84-87). Officer Hammer testified that he handcuffed McCullough for officer safety purposes. (Id. at 96). As Officer Hammer picked up McCullough to handcuff him, he and Officer Cook observed in McCullough's immediate proximity a digital scale and a plastic baggythat they suspected contained marijuana.*fn6 (Id. at 72-73, 85-87, 93). Officer Hammer then placed McCullough under arrest. (Id.at 86). Later, during a strip search of McCullough at the police station, Officer Hammer discovered a plastic baggy containing crack cocaine on McCullough's person. (Id. at 91).

II. Procedural History

On May 4, 2011, a Federal grand jury returned a two-count Indictment against McCullough and several other defendants. (Doc. 1). McCullough pled not guilty at his arraignment on May 24, 2011. (Doc. 85). McCullough filed the instant motion to suppress on June 15, 2011. (Doc. 124). The court conducted an evidentiary hearing on August 29, 2011. (Doc. 161). The motion has been fully briefed and is ripe for disposition.

III. Discussion

The Fourth Amendment of the United States Constitution secures "persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. CONST. amend. IV. A Fourth Amendment seizure inquiry involves a two-step analysis: (1) determining whether a seizure occurred, and if so, (2) determining whether the seizure was reasonable under the circumstances. See United States v. Smith, 575 F.3d 308, 312 (3d Cir. 2009).

A. Whether a Seizure Occurred

A seizure occurs "if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 545 (1980). A mere show of authority by law enforcement officials does not constitute a seizure. California v. Hodari D., 499 U.S. 621, 626 (1991). Instead a seizure "requires either physical force . . . or, where that is absent, submission to the assertion of authority." Id. (emphasis omitted); ...


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