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United States of America v. Tyron Ellerbe

October 10, 2012


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


The defendant is charged with two counts of possession of a firearm by a convicted felon and two counts of making, and aiding and abetting making, false statements to a firearms licensee ("FFL"). These charges arise from the purchases of two guns on September 7 and 8, 2011, by Lamia Smith, allegedly for the defendant, Tyron Ellerbe.

The defendant has moved to suppress the gun and other physical evidence seized from his home on September 12, 2011. The Court held an evidentiary hearing on September 21, 2012, and will now deny the motion.

I. Findings of Fact

Agent Mark Schmidheiser is a member of the State

Attorney General's Gun Violence Task Force. He became a member of the Gun Violence Task Force in 2002, after working as a police officer for 25 years. On September 8, 2011, he received information from an employee of the Firing Line, a gun shop located at 1500 South Front Street. The employee informed the agent that there was a female in the store who the employee believed was trying to straw purchase a gun. Agent Schmidheiser was told that the female told the employee that she had purchased a gun the day before at another gun shop and was looking for another gun because the one she bought the day before was too big for her hand. The agent had dealt with the Firing Line gun shop employee many times in the past.

Agent Schmidheiser then went to the Firing Line gun store and parked in the lot. While he was doing so, he received another call from the employee who said that the female, later identified as Lamia Smith, was exiting the store because she was short on money. He described her as wearing a pink shirt and black pants. Agent Schmidheiser observed a woman matching that description come out of the store and walk across Front Street. She got into a light colored Toyota. The Toyota was not parked in the lot of the gun store, even though there were many available parking spots. Agent Schmidheiser followed the Toyota over to a Wawa and he observed a man he later identified as the defendant get of the vehicle and go into the Wawa. He wrote down the tag number of the vehicle.

Agent Schmidheiser contacted his partner, James Henwood, and told him what was happening. Agent Henwood was at 55th & Pine when he got the call. Agent Schmidheiser told Agent Henwood that the defendant appeared to use the ATM machine in the Wawa. About 20 minutes later, Agent Schmidheiser observed Lamia Smith walk back into the parking lot and go into the Firing Line again. The Toyota again did not park in the parking lot. About 10 to 15 minutes later, Agent Schmidheiser received a call from the same employee who told him that Ms. Smith was leaving the store and the employee had put the gun into a brown bag. Agent Schmidheiser observed her come out of the store carrying the brown bag and walk out of the parking lot. He followed her around the corner where he observed her walk up to the Toyota that was driven by the defendant. She tapped on the trunk and the trunk popped open. She placed the gun in the trunk, closed the trunk, got into the car, and they both drove off.

Agent Schmidheiser started to follow the defendant and Ms. Smith up Tasker to 5th Street. They went over 5th and started to go all the way up 5th Street. Around this time, Agent Henwood caught up to Agent Schmidheiser. Agent Henwood, who had been assigned to the Philadelphia Gun Violence Task Force ("GVTF") since 2007, ran the tag of the car and informed Agent Schmidheiser by phone that the car was registered to Tyron Ellerbe with an address of 248 Delphine Street. The two agents followed the car up 5th Street over to Wyoming, where it turned onto 4th Street. When they got to the area around 5th & Wyoming, Agent Henwood was able to drive up beside the car and to look into the car and saw the defendant driving. There is a wide turning area near there for two lanes of traffic. The agents lost the car for a short time but then found the car. The car was parked in front of 248 Delphine, the address of the owner of the car. The car was unoccupied and there was nobody in the area. Three to fine minutes passed between the time the agents lost sight of the vehicle and then found it on Delphine Street.

The employee of the store had also told Agent Schmidheiser that Ms. Smith said that she had bought a gun the day before at the Shooter Shop which is located at 2001 Allegheny Avenue. The two agents then went to the Shooter Shop and recovered the paperwork for the gun that was purchased on September 7 --- a .45 automatic Taurus pistol. They then went back to headquarters. They started to do a background check on the defendant, the owner of the vehicle. It came back that he was a convicted felon on state parole. Lamia Smith had no arrests and they discovered that her address was 256 Delphine Street, about 4 houses up from the defendant. At that point, Agent Henwood contacted Joseph Gillespie of state parole.

Joseph Gillespie is a parole supervisor with the Board of Probation and Parole of the Fugitive Unit ("Parole Board"). He has been with the Parole Board for 16 years, and 10 years with the Fugitive Apprehension and Search Team. He has been a supervisor of that unit for seven years. The Fugitive Unit is a specialized unit of the Pennsylvania Board of Probation and Parole whose mission is to apprehend parole absconders or fugitives. The unit is also tasked with handling high risk entries and arrests and investigations. All members of the Unit are deputized U.S. Marshals and part of the fugitive task force. They coordinate with most agencies in the area.

Agent Gillespie has had contact with Agent James Henwood prior to September 8, 2011. They have conducted investigations and have had mutual investigations with offenders who were under the jurisdiction of the Parole Board at the time that there was an investigation ongoing. In the past, Agent Henwood had provided Agent Gillespie with information regarding parolees upon which he had acted. He was contacted by Agent Henwood on September 9th.

Agent Henwood explained to Agent Gillespie that he was conducting an investigation and was trying to confirm that Tyron Ellerbe was under the jurisdiction of the Parole Board. Through several conversations, Agent Gillespie learned from Agent Henwood that they had information and had conducted surveillance of Mr. Ellerbe on September 8 at a gun shop called the Firing Line and that a female had accompanied him and purchased a handgun and placed that handgun in the trunk of the vehicle that was registered to Mr. Ellerbe. Agent Gillespie learned that during the surveillance, an agent saw the female leave the gun shop and was accompanied by Mr. Ellerbe to a Wawa where Mr. Ellerbe made a cash withdrawal and then went back to the Firing Line. The female went in and conducted a gun purchase and came out and placed the gun that she had purchased in the trunk of the car that Ellerbe was driving. Agent Henwood told Agent Gillespie that their investigation revealed that she had purchased a handgun at the Shooter Shop the day before, which would have been September 7. He received information from Agent Henwood that in their surveillance, they identified Mr. Ellerbe as the driver of the vehicle.

Agent Gillespie then conducted an investigation to make sure that Mr. Ellerbe was in fact on parole under the supervision of the Parole Board. He confirmed that fact and contacted the defendant's acting parole agent, Mr. Mullany. Mr. Ellerbe, as a convicted felon and being under the jurisdiction of the Parole Board, per his release conditions, is forbidden from being in possession of any weapons, specifically firearms. Agent Gillespie did most of this work on Friday by way of telephone because the computers were down because of major flooding in Harrisburg. There was a question about the defendant's address. Agent Mullany had recently given Mr. Ellerbe permission to move to Delphine Street but the address that was listed was in a different area. ...

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