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United States of America v. Ebon P. D. Brown

November 26, 2012

UNITED STATES OF AMERICA
v.
EBON P. D. BROWN, DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION AND ORDER

Pending before the court is a motion to suppress evidence (ECF No. 28) filed by defendant Ebon P. D. Brown ("defendant") in the above-captioned case. On August 24, 2011, a federal grand jury in the Western District of Pennsylvania returned a one-count indictment (ECF No. 1) charging defendant with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). On September 23, 2011, defendant pleaded not guilty to the charge at count one of the indictment. (ECF No. 13.)

Defendant filed the present motion on March 12, 2012, seeking to suppress the admission of the firearm defendant possessed as alleged in count one of the indictment at Criminal No. 11-193. The government filed its response on March 20, 2012. (ECF No. 31.) Defendant filed a reply in support of the motion to suppress on April 20, 2012. (ECF No. 43.) On May 24, 2012, the court held a hearing on defendant's motion, at which time the court received evidence and heard testimony from Pittsburgh Police Department Detectives Thomas Gault ("Detective Gault"); Judd Emery ("Detective Emery"); Calvin Kennedy ("Detective Kennedy"); and Mark Adametz ("Detective Adametz"). (ECF No. 57.) The detectives were sequestered during the hearing and were unable to observe or hear the testimony of the other witnesses. The hearing was continued until July 30, 2012, on which date the court heard testimony from defense witness James Cole ("Cole"). (ECF No. 71.) Following the July 30, 2012 hearing, the court took the parties' arguments under advisement and ordered the parties to file proposed findings of fact and conclusions of law with respect to defendant's motion to suppress. Defendant filed proposed findings of fact and conclusions of law on September 28, 2012 (ECF No. 67) and the government filed the same on October 26, 2012 (ECF No. 70.)

Upon consideration of the parties' submissions, and the evidence and testimony presented at the suppression hearing, the court makes the following findings of fact and conclusions of law:

I. Findings of Fact

A. Background Information

1. This case involves events that took place shortly after midnight on the morning of March 23, 2011 at the intersection of Wylie Avenue and Duff Street in the Hill District section of the City of Pittsburgh, Pennsylvania. (Hr'g Tr. May 24, 2012 ("May Tr.") (ECF No. 57) at 15-17.) The Hill District is part of Pittsburgh Police Department Zone 2, and is considered a high-crime area. (Id. at 29-30.)

2. The intersection of Wylie Avenue and Duff Street is in close proximity to the Flamingo Bar, which has been designated as a "nuisance bar" by the Pittsburgh Police. (Id. at 21.)

The Flamingo Bar has been the scene of many violent incidents and arrests, including fatal and non-fatal shootings. (Id.) When entering the Flamingo Bar, patrons are searched for weapons with a hand-held metal detector "wand." (Id.)

3. Detectives Gault, Emery, Kennedy, and Adametz were on patrol on the night of March 23, 2011 in an unmarked police vehicle as part of the impact division of the Pittsburgh Police narcotics unit. (Id. at 15-16.) Detectives in the impact division patrol in plain clothes, in groups of three or four, and focus on maintaining a presence in high-crime neighborhoods. (Id.) Detective Kennedy drove the unmarked police vehicle (Id. at 96); Detective Emery sat in the front passenger seat (Id. at 73); Detective Gault sat in the rear passenger-side seat (Id. at 18); and Detective Adametz sat in the rear driver's-side seat. (Id. at 115.)

4. On the morning of March 23, 2011, defendant was driving a 2002 maroon Chevrolet Impala with Pennsylvania registration number HRS-7627 (the "Impala"). (Id. at 18.) Defendant had driven the Impala on several prior occasions with permission of the car's owner, his acquaintance "Casandra." (Hr'g Tr. July 30, 2012 ("July Tr.") (ECF No. 71) at 27-29.) With defendant were Cole in the passenger seat and Anthony Pryor and Tyrique Jackson in the back seat. (Id. at 29-30.)

5. The detectives were traveling away from downtown Pittsburgh on Wylie Avenue when they observed the Impala in the opposite lane of Wylie Avenue traveling toward downtown Pittsburgh. (May Tr. at 20, 82-83, 97, 116.)

6. All four detectives observed the Impala as it parked near the intersection of Wylie Avenue and Duff Street. Detective Gault observed that the Impala was parked "right on the corner." (Id. at 17.) Detective Emery observed that the Impala was parked "right at the intersection . . . within two or three feet of the intersection." (Id. at 74.) Detective Kennedy observed that the Impala was "parked within two, three feet of [Duff] street." (Id. at 98.) Detective Adametz observed that the Impala was parked "right at the intersection." (Id. at 117.) Cole testified that the hinges of the front passenger-side door of the Impala were behind the light pole located near the corner of Wylie Avenue and Duff Street, but was unable to recall exactly how far the car was from the intersection itself. (July Tr. at 11-12, 32-33.)

7. All the detectives believed that the Impala was illegally parked. (Id. at 22, 85, 98, 117.)

8. Detectives Gault and Adametz testified that the Impala was parked near a stop sign at the intersection of Wylie Avenue and Duff Street. (Id. at 17, 117.) Evidence presented at the suppression hearing indicated, however, that there was no stop sign at that intersection on February 15, 2012, although the light pole immediately next to the Impala had a bus stop sign on it, and a fire hydrant was visible adjacent to the pole on Duff Street. (Id. at 43-45; Def. Ex. L, M, and N.)

9. After defendant parked the Impala, the occupants began to exit the vehicle as the detectives drove up next to the Impala, driver's door to driver's door, approximately six to ten feet away. (May Tr. at 74-75, 100.)

B. Defendant's Movements in the Car

10. From their vantage point next to the Impala, each of the detectives observed defendant (who had been driving the car) exit the Impala, see the detectives' car, and sit back down in the driver's seat with the door open. (Id. at 24, 75, 102-03, 121.) The detectives all independently testified that defendant saw their vehicle-the usual vehicle driven by the impact division-just before he sat back down in the Impala. (Id.) Detectives Gault, Emery, and Adametz all testified that their vehicle was widely recognizable in the Hill District as being a Pittsburgh Police vehicle. (Id. at 35, 78, 116-17.)

11. Detective Gault testified that defendant looked right at the detectives' car and then appeared to lean back, as though pulling something out from his waistband area, then lean forward, as though putting something under the driver's seat. (Id. at 24.) Based upon sixteen years of experience, more than five hundred firearm arrests, and federal government-sponsored training aimed at identifying the behavior of armed individuals, Detective Gault believed that defendant removed a firearm from his waistband and placed it under the seat. (Id. at 24-29.) Detective Gault testified that the behavior was consistent with a person carrying an illegal firearm. (Id. at 29.)

12. Detective Emery observed defendant from the chest area up, "hunched over a little bit and reaching with his right hand in his waistband area . . . pulling-making like a shoving, pulling motion. Then he bent down and shoved his hands towards the floorboard under the front edge of the driver's seat." (Id. at 75.) Based upon more than eleven years' experience as a police officer, Detective Emery believed that defendant was "concealing a firearm and shoving it or stowing it underneath his seat." (Id. at 72, 76.)

13. Detective Kennedy, who was driving the police vehicle and was closest to defendant, observed defendant look in the direction of the detectives' car, reach into his waistband, and pull out an object that Detective Kennedy believed to be a pistol. (Id. at 103, 112.) At the time, Detective Kennedy was unable to specifically identify the object, but he observed defendant quickly place the object on the floor under the driver's seat. (Id. at 103-04.) Detective Kennedy was concerned that when one firearm is discovered, other firearms are often present. (Id. at 109.)

14. Detective Adametz observed that all the Impala's occupants saw and appeared to recognize the detectives' car. (Id. at 116, 121.) He saw defendant's upper body and shoulders, and that defendant appeared to pull something out of his waistband and leaned forward as though he put something under his seat. (Id. at 121.) Based upon his training and experience, Detective Adametz believed defendant pulled a firearm from his waist area and put it under his seat. (Id. at 129.) Detective Adametz was concerned at the time that "where there's one gun, there's two guns." (Id. at 127.)

15. The detectives observed the Impala's occupants exit the car at roughly the same time, except for defendant, who sat back down and made the movements described above (with the door still open) before exiting the car and closing the driver's side door. (Id. at 23-24, 78, 86, 94, 101-03, 121.)

16. The detectives' car stopped parallel to the Impala after all four of its occupants had exited the car and were walking toward the Flamingo Bar. (Id. at 78.)

C. The Encounter

17. The detectives exited their car and approached defendant and the other three individuals who had been riding with him in the Impala. (Id. at 32-33.) None of the detectives told defendant or the other individuals to stop, (id. at 33), or removed their firearms from their holsters. (Id. at 33-34, 87, 106, 112, 126, 129.)*fn1 The detectives' badges were visible. (Id. at 49, 105, 126.) The lights or sirens on their police vehicle were not engaged. (Id. at 77.) Detective Adametz identified the detectives as Pittsburgh Police officers. (Id. at 87, 126.)

18. The detectives called for backup during the encounter because, as stated by Detective Gault, the detectives were evenly matched by the number ...


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