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United States of America v. Willie Elmore

July 16, 2012

UNITED STATES OF AMERICA
v.
WILLIE ELMORE



The opinion of the court was delivered by: (Judge Conner)

MEMORANDUM

Presently before the court are defendant Willie Elmore's ("Elmore") motions to suppress evidence. (Docs. 30--33). Elmore contends that, on September 16, 2011, law-enforcement officials stopped his vehicle, unlawfully arrested and searched him without probable cause to do so, and obtained a search warrant for the vehicle only as a result of that unlawful arrest and subsequent search. (Doc. 30). Elmore further contends that search warrants issued for various cell phone records were obtained as a result of the September 16, 2011 arrest and search and are thus inadmissible as fruits of an illegal search. (Docs. 31--33). The court conducted an evidentiary hearing on the motions on March 28, 2012. For the reasons that follow, the court will deny the motions.

I. Findings of Fact*fn1

On September 16, 2011, at approximately 9:52 a.m., two masked men robbed the Fulton Bank located at 2220 Old Trail Road, in Etters, Pennsylvania. (Doc. 40--1, 13). Witnesses described the robbers as two black males, as least one of whom was armed. (Id. 13--14). Bank employees described the first robber as wearing a black hooded sweatshirt, a black bandana, clear latex gloves, and blue jeans. (Id. 13). Employees described the second robber as wearing a brown jacket, black baseball hat with a red brim, white tee-shirt over his face, clear latex gloves, and blue jeans. (Id. 13). The robbers fled with $13,761, including ten $20 bills designated as "bait money."*fn2 (Id. 14).

Around the time of the robbery, Suzanne Stabley ("Stabley"), drove up to the Old Trail Road Fulton Bank to cash a paycheck. (Doc. 66, at 4). She observed a black Chevrolet Blazer parked in an odd location, and saw a man with a covered face exit the passenger side of the vehicle and enter the bank. (Id. at 5). Suspecting that the bank was being robbed, Stabley drove around the perimeter of the bank and exited the parking lot. (Id.) Stabley parked along the curb, and was able to observe a partial Pennsylvania license plate number for the vehicle. (Id. at 6).*fn3

While she was doing this, she observed another man exit the vehicle and enter the bank. (Id. at 5). Stabley then drove across the street to Rutter's Farm Store to obtain a pen to write down the partial plate. (Id. at 6). As Stabley parked, a friend of hers pulled into the parking space to the right of her vehicle. (Id.) They entered Rutter's and asked for a pen, which Stabley used to write down the partial plate number on a Rite-Aid advertisement she had in her vehicle. (Id. at 6, 13). Stabley pointed out to her friend the vehicle, which was still at the bank, identifying it as a Chevrolet Blazer. (Id. at 6).

At some point shortly thereafter, the Blazer exited the Fulton Bank parking lot. (Id.) Stabley then observed two police cruisers drive past the bank and another enter the bank's parking lot. Stabley entered her vehicle intending to drive to the bank and give the partial plate to the officer who had just arrived there. (Id. at 6, 7). As she was sitting in line waiting to exit the Rutter's parking lot, she observed a black Chevrolet Blazer pull into the Rutter's parking lot and turn around. (Id. at 7). She was "absolutely, positively sure" that the vehicle in the Rutter's parking lot was the same one she had observed at the bank, identifying it from its color, model, and age. (Id. at 7, 9). She noted that the driver was a "thin black man with a shaved head." (Id. at 14).

Still sitting at the exit of the Rutter's parking lot, Stabley waved the Blazer around her, hoping to obtain the vehicle's full license plate. (Id. at 7, 8). The vehicle passed her, and she observed that it now had a North Carolina license plate.*fn4 (Id. at 8). The Blazer turned left out of the Rutter's parking lot, and Stabley drove across the street to Fulton Bank to tell the police officer present about the vehicle. (Id. at 8, 15). Stabley, who did not have a pen, continually recited the North Carolina plate to herself until she was able to provide it to the police officer at the bank. (Id. at 8). Stabley provided Sergeant Steven Lutz ("Sgt. Lutz"), the first officer she encountered, with the North Carolina license plate number of the Blazer, briefly explaining its significance. (Id. at 9; Doc. 40-- 1, at 13). Sgt. Lutz recorded the North Carolina license plate. (Doc. 40--1, at 13). *fn5

Sometime after the robbery, but before 11:20 a.m. on September 16, 2012, York County Communications issued a "be-on-the-lookout" ("BOLO") advisory, based on the information gathered by Sgt. Lutz. (Id. at 36). The BOLO informed officers in the area of a black Chevrolet S-10 Blazer, North Carolina license plate AAP2259, believed to have been involved in a bank robbery. (Id.) The BOLO stated that the vehicle was occupied by two or more black males, and was last seen heading towards Interstate 83. (Id.) Officer Gerald Wade Heaton ("Officer Heaton"), of the Hellam Township Police Department, was patrolling US 30 in Hellam Township when he received the BOLO. (Id. at 36). He pulled into an emergency crossover, facing south. (Id. at 36, 37).

Around 11:20 a.m., Officer Heaton observed a black Chevrolet S-10 Blazer pass his position, traveling eastbound. (Id. at 37). Officer Heaton saw a black male operating the vehicle, and noticed that the vehicle had a North Carolina license plate. (Id. at 37). Officer Heaton began following the vehicle from the left lane and relayed the license plate number to York County Communications, which confirmed that it was the same plate identified in the BOLO. (Id. at 37--38).

Officer Heaton moved into the right lane and continued to follow the vehicle, which at that point had slowed to almost exactly the speed limit of 55 miles per hour. (Id. at 38). Officer Heaton observed the driver frequently glancing in the side mirror, which he found very suspicious. (Id. at 38, 50). Officer Heaton followed the Blazer for approximately 1.5 miles on US 30 until the Blazer reached the Hellam exit. (Id.) At this point the Blazer exited, turned left, took the underpass below US 30, and turned left again to re-enter US 30, now traveling westbound. (Id. at 39).

Officer Heaton continued to follow the vehicle, informed York County Communications of the change in direction, and requested back-up. (Id. at 39, 40). Five or six Springettsbury Township police cruisers joined Officer Heaton, and together the cruisers activated their sirens and lights just past the Mount Zion Road overpass, approximately three miles from the Hellam exit. (Id. at 40, 51). The Blazer stopped, and the officers executed a "felony stop," surrounding the vehicle in a semicircle with weapons drawn.*fn6 (Id. at 41, 54).

A Springettsbury Officer instructed the driver, later identified as Willie Elmore, to roll down the window, open the driver's side door with his left hand, exit the vehicle, walk backward toward the officer, and lie down on the roadway. (Id. at 41, 55). Elmore complied with all of these instructions. (Id. at 55). Officer Heaton placed handcuffs upon Elmore and a Springettsbury Township officer arrested him. (Id.; Doc. 40--1, at 30). Officer Heaton and another officer conducted a pat down of Elmore's person. (Doc. 66, at 55). Officer Heaton removed a number of $20 bills from Elmore's right pocket, six of which were later determined to be bait money from Fulton Bank. (Id. at 42; Doc. 40--1, at 15). In addition, officers observed currency in plain view on the vehicle's right front passenger seat, and sticking out of the center consol.*fn7 (Doc. 40--1, at 30).

Based on the evidence gathered during the traffic stop, Sgt. Lutz obtained a search warrant in order to thoroughly inspect the vehicle. (Doc. 30--1). This warrant was executed on September 16, 2011. (Id.) Among the items seized from the Chevrolet Blazer were $1,510 and a Motorola cell phone. (Id.) Sgt. Lutz obtained a second warrant, executed on September 22, 2011, to search the phone in order to gain information related to the robbery. (Doc. 31--1). As a result of the information obtained from this warrant, Sgt. Lutz procured additional warrants to search telephone records: one for the number registered to the phone taken from the Blazer and a second for a number that the phone dialed and ...


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