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United States of America v. Anthony Burnett & Raheem Hankerson

August 1, 2012

UNITED STATES OF AMERICA,
v.
ANTHONY BURNETT & RAHEEM HANKERSON, DEFENDANTS.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

I. INTRODUCTION

Defendants Anthony "Ant" Burnett and Raheem Hankerson were jointly charged by a grand jury as follows: (1) conspiracy to rob a jewelry store with a firearm in violation of 18 U.S.C. § 1951(a), (b)(1), and (b)(3); (2) robbery of a jewelry store with a firearm in violation of 18 U.S.C. §§ 1951, 1952; (3) using and carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1), (c)(2); (4) possession of a stolen firearm in violation of 18 U.S.C. § 922(j). Defendant Hankerson was charged by a grand jury with one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Defendant Burnett was also charged by a grand jury with one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), (e).

Pending before the Court are both Defendants' motions to suppress. Defendants filed separate motions to suppress all physical evidence from the search of a car. See ECF Nos. 35, 44. Defendant Hankerson also seeks suppression of evidence found at his residence and statements he made to officers while in custody. See ECF No. 35. Defendant Burnett also filed a motion seeking to suppress statements he made while in custody. See ECF No. 36. On December 16, 2011, and January 20, 2012, the Court held evidentiary hearings. At the close of those hearings, the Court ordered supplemental briefing on all suppression motions. Order, Jan. 20, 2012, ECF No. 53. The Government provided such briefing, as did Defendant Hankerson. See ECF Nos. 61, 63, 68. Defendant Burnett, however, did not provide additional briefing. Before oral argument on Defendants' motions, the Court received Defendant Burnett's Motion to Appoint New Counsel. ECF No. 72. The Court granted this request and appointed Michael J. Diamondstein, Esquire, as counsel for Defendant Burnett and afforded Mr. Diamondstein additional time to file supplemental briefing. ECF No. 73. After Mr. Dimondstein's appointment, Defendant Burnett moved to reopen his Motion to Suppress his statement. ECF No. 82. The Court granted this motion.*fn1 ECF No. 88. Accordingly, at this time only Defendant Hankerson's Motions and Defendant Burnett's Motion to suppress physical evidence are ripe for disposition. See ECF Nos. 35, 44, 63. For the reasons that follow, the Court will deny those Motions.

II. BACKGROUND*fn2

On March 29, 2011, the first defendant*fn3 entered Poland's Jewelry at 4347 Main Street, in the Manayunk section of Philadelphia. The first defendant, an African-American male, was disguised in a wig, hat, light coat, and glasses. A store clerk was present. The first defendant produced a semi-automatic gun. The first defendant forced the clerk to the back of the store where the storeowner was located. Then, he bound both with plastic zip ties. At this time, the first defendant called the second defendant. The second defendant, an African-American male, entered the store and both defendants began plundering the store. At some time during the robbery, the first defendant went back to check on the victims and struck the owner across the head with the gun. Next, one defendant left and the other waited in the store until he received a cell phone call, allegedly from the other defendant. At that time, the second defendant departed the store and the police were notified. In addition to store merchandise, Defendants also allegedly stole the security tape, a revolver that was kept under the store cash register, and some of the victims' personal effects. Defendants used pink or beige bags to carry these goods.

Following the robbery, Defendants allegedly fled in a black Honda, with Defendant Hankerson at the wheel.*fn4 Unfamiliar with the neighborhood, they became lost and drove down a dead-end street, the 200 Block of Kalos Street. They arrived at this location, which was about a mile or two from the robbery, approximately five to thirty minutes after the robbery. Two witnesses saw Defendants arrive. The first witness stated that the Honda arrived at a high rate of speed, stopped quickly, and then parked on the side of the road. The first witness saw Defendants placing bags in the trunk from the back seat. The second witness approached the car, responding to a request from one of the defendants for a ride, and claims to have seen bags in the trunk and that this defendant closed the trunk very quickly upon his approach. After the second witness refused to provide a ride, Defendants abandoned the car and left its contents there. One of the witnesses then called 911 to report the incident.

Upon arrival at Kalos Street, Officer Christopher Ward*fn5 learned of the above details regarding the Honda and that the witnesses identified the Honda's occupants as African-American males, with one wearing a similar coat as described by the robbery victims. Ward also determined that the Honda was registered to 5812 North Lambert Street, which is approximately twenty to twenty-five minutes away from Kalos Street. See Suppression Hr'g Tr. vol. 2, 82:7, Jan. 20, 2012, ECF No. 58. After fruitless attempts to contact the car's owner, the Honda was towed to the police garage to secure it from both the elements and possible evidence tampering. Detective Ted Wolkiewicz then obtained a search warrant for the Honda and recovered the stolen jewelry, stolen revolver, a pair of wigs, sunglasses, plastic zip ties, the security tape, a 9mm pistol with apparent blood on it, Pennsylvania Board of Probation and Parole paperwork belonging to Defendant Hankerson that included various identifying information, and also a wallet with identification cards belonging to Defendant Hankerson. As a result of this identification, a warrant issued to search 5812 North Lambert Street, Defendant Hankerson's residence.

After finding the evidence in the Honda, an arrest warrant issued for Defendant Hankerson on March 30, 2011. Though no federal warrant was outstanding, on April 5, 2011, Defendant Hankerson turned himself in to Federal Bureau of Investigation agent John Benham. Defendant Hankerson was accompanied by his attorney at this time and made no statements regarding the robbery to Benham. After going to the FBI office with his attorney, Benham contacted the Philadelphia Police Department explaining that Defendant Hankerson had surrendered himself. Without counsel, Defendant Hankerson was transferred to the Philadelphia Police Department, Northwest Division, at around 7:30 p.m.*fn6 Once there, Defendant Hankerson was handcuffed and placed in an interrogation room. Wolkiewicz, who was assigned to the case, met Defendant Hankerson in the interrogation room. Wolkiewicz orally advised Defendant Hankerson of his constitutional rights. The Government contends that Defendant Hankerson waived these rights. Though Defendant Hankerson mentioned several times during the interview process that his counsel told him to remain silent, he was continually worried about possible retaliation and whether or not to follow his lawyer's advice. Finally, Defendant Hankerson agreed to tell Wolkiewicz about the incident at about 1:25 a.m. Wolkiewicz advised Defendant Hankerson of his rights in writing, and Defendant Hankerson waived these rights in writing. Thereafter, Defendant Hankerson explained the entire story of the robbery and his connection with Defendant Burnett, alleging that at all times Defendant Burnett threatened to harm Defendant Hankerson's family if he did not assist in the robbery. Defendant Hankerson's statement concluded at around 4:25 a.m.

III. DISCUSSION

Defendants jointly move to suppress evidence found in

the Honda on Kalos Street. Defendant Hankerson also moves to suppress evidence seized from a search of his residence and to suppress his statement to Wolkiewicz.

A. Defendants' Motions to Suppress Physical Evidence Defendants move to suppress all evidence seized from

the Honda. Defendants argue the following with respect to the evidence seized from the Honda: (1) the seizure of the car itself was without probable cause and, therefore, a violation of their Fourth Amendment rights; (2) the search warrant for the Honda was so devoid of probable cause that the Court should find the warrant invalid; (3) the affidavit supporting probable cause was based upon material misstatements; and (4) to the extent that the officers conducting the search of the Honda relied upon the good faith belief that the warrant was valid, such belief was unreasonable.

1. Standing

As a threshold matter, with respect to Defendant Burnett's Motion to Suppress physical evidence from the search of the Honda, the Government argues that Defendant Burnett lacks standing to seek such suppression. As to standing, Defendant Burnett has the burden to show that he had a reasonable expectation to privacy in the Honda. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). There is no dispute that Defendant Burnett was the passenger in the Honda. The passenger in the car owned by another generally has no standing to challenge the car's search. United States v. Baker, 221 F.3d 438, 441-42 (3d Cir. 2000); United States v. Pete, No. 09-82, 2010 WL 887364, at *6 (W.D. Pa. Mar. 10, 2010). Defendant Burnett admits that under the current law he has no standing to challenge the Honda's search. He argues, however, that it is fundamentally unfair that passengers invited to ride in a car lack standing to challenge the constitutionality of a search of that car. The Court disagrees. In any event, the Court is bound by the precedent of the U.S. Supreme Court and the Third Circuit Court of Appeals holding that passengers, absent perhaps some unique facts not present in this case, lack standing.*fn7

2. Seizure of the Honda

Defendants challenge the initial seizure of the Honda by police. Specifically, they argue that the police did not have probable cause to seize the Honda, which was lawfully parked on Kalos Street.

In response to 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." U.S. v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005). The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend IV. Evidence obtained pursuant to a warrant that does not comply with Fourth Amendment requirements may be excluded from evidence at trial. See United States v. Leon, 468 U.S. 897, 906 (1984).

There are several well-delineated exceptions to the exclusionary rule, however. Indeed, it is hornbook law that the warrantless search and seizure of a car is permitted so long as there is probable cause to believe the car contains contraband.

Pennsylvania v. Labron, 518 U.S. 938, 940 (1996); see United States v. Burton, 288 F.3d 91, 100-01 (3d Cir. 2002). When conducting this search or seizure with probable cause, there is no difference between searching the car immediately or seizing the car, bringing it back to the station house, and then searching the car. See Chambers v. Maroney, 399 U.S. 42, 52 (1970). Accordingly, Defendants' first argument rises and falls on whether the officers had probable cause to seize the Honda.

The Court's analysis of probable cause is not limited to the four corners of the affidavit, but includes the police officer's conclusions outside the specific warrant. Ornelas v. United States, 517 U.S. 690, 696 (1996) (explaining that probable cause should be "viewed from the standpoint of an objectively reasonable police officer."). From this standpoint, the Court makes a "common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983).

Under this standard, Defendants argue that probable cause is lacking because there is no factual nexus to connect the robbery of the jewelry store to the Honda located on Kalos Street. In particular, Defendants argue that the description of suspects from the robbery contained in the initial police radio broadcast (the "flash") is so unlike the description of the individuals that in fact exited the Honda on Kalos Street that, should the Court accept the Government's argument, "absolutely any parked vehicle in which two African American males are seen leaving, if found within a two and a half mile radius of a crime and a half an hour later would subject the vehicle to a constitutional seizure under the Fourth Amendment." Def. Hankerson's Supplemental Br. in Supp. of Mot. to Suppress 8, ECF No. 63 [hereinafter Def. Hankerson's Supplemental Br.].

The evidence of record indicates that the fullest description of the robbery suspects is contained in a police broadcast at approximately 11:38 a.m.: "Robbery, point of gun, two black males, number 1 male wearing a wig and yellow coat, both males armed. Number 1 male six feet, gray goatee, yellow coat, tan or beige loafer. Number 2 black male, no further flash. Both males had wigs on. Males carrying ...


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