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United States of America v. Kamaal Mallory

March 11, 2013


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


The defendant, Kamaal Mallory, has been indicted on one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). This charge arises from the defendant's alleged possession of a Smith & Wesson, Model 10 .38 caliber revolver during the early morning hours of January 15, 2012. The defendant has moved to suppress the Smith & Wesson .38 caliber revolver recovered from his stepmother's home on that day. The Court held an evidentiary hearing on the defendant's motion on January 7, 2013. After receiving supplemental briefing from the parties, the Court will grant the motion.

I. Findings of Fact

The following represent the Court's findings of fact

based on its assessment of the evidence presented at the January 7 evidentiary hearing, including its evaluation of the credibility of the testifying witnesses. At that hearing, the Government presented only one witness: Police Officer Richard Hough. Five witnesses testified for the defense: (1) Ismail Abu Bakr, the defendant's brother; (2) Richard Thomas, III, the defendant's friend; (3) Delaine Abu Bakr, the defendant's stepmother; (4) Siddiqah Abu Bakr, one of the defendant's sisters; (5) Tazkeyah Abu Bakr, another of the defendant's sisters.

A. Police First Arrive at 3400 Block of Old York Road On Saturday, January 14, 2012, the defendant, Kamaal

Mallory, and his brother, Ismail Abu Bakr, were working together as emergency medical technicians for a company identified as Northwest Care Ambulance. Later that evening, after work, Mallory, Ismail,*fn1 and at least two of their friends, Richard Thomas, III and Nur Hasan, met at the home of Ismail's mother, also Mallory's stepmother, located at 3434 Old York Road in Philadelphia. Although Mallory does not live at his stepmother's home full-time, he and his two daughters stay at her home on the weekends and were spending the weekend of January 13-15 at her residence. I. Abu Bakr Test. at 44-47;*fn2 D. Abu Bakr Test. at 89-90.

Sometime between 1:45 a.m. and approximately 2:30 a.m. on January 15, Mallory, Ismail, and their friends were standing on Old York Road in front of a neighbor's house. I. Abu Bakr Test. at 65-66; Gov't Ex. 1. A police cruiser pulled up near where they were standing, and Officer Eric Enders, one of the officers inside the car, asked them whether they lived in that house. Ismail responded that they did not, and Officer Enders instructed the men to leave the area in front of the house. Mallory, Ismail, and their friends began walking toward Mallory's stepmother's house. As they did so, Officer Enders began flashing a light on them. Ismail cursed at the officer and told him to stop shining the light on them, at which point Officer Enders got out of the police car and grabbed Ismail while he was standing on the sidewalk in front of his mother's home. Officer Enders wound up handcuffing Ismail and placing him in the back seat of his police vehicle. Officer Enders informed Ismail that he was being detained for disorderly conduct. The officers then drove the car in which Ismail had been placed around the corner and parked. I. Abu Bakr Test. at 48-50.

As Ismail was engaged in the verbal exchange with Officer Enders or shortly before the exchange began, Mallory went back to his stepmother's house and knocked on the door. His sister, Siddiqah Abu Bakr, answered. When Siddiqah opened the door to let Mallory in, she saw flashing lights from the police patrol car. She then closed the door and peered out the window. She saw Ismail and some friends standing on the sidewalk and saw that Ismail was speaking with an officer. She then saw the officer turn Ismail around. Siddiqah asked Mallory if she should get her mother, Mallory's stepmother, Delaine Abu Bakr, and Mallory responded that she should fetch Delaine. S. Abu Bakr Test. at 107-08.

Siddiqah went upstairs to Delaine's bedroom, where Delaine was sleeping. Siddiqah told Delaine that Ismail was about to be arrested and that Delaine needed to get up. Siddiqah then went back to the first floor and saw Ismail being put into the back of a police car and watched the vehicle drive away. By the time Delaine came downstairs, the police car had already driven out of sight. Id. at 109; D. Abu Bakr Test. at 90-91.

After driving around the corner and parking, Officer Enders and his partner waited with Ismail in that location for several minutes. One of the officers then let Ismail out of the cruiser and removed his handcuffs. The officer got back into the vehicle and it drove off. Ismail then walked back around the corner toward his mother's house, where he saw a group of friends and family members on the porch and two police cruisers parked out front. I. Abu Bakr Test. at 50-51.

B. Officers Enter 3434 Old York Road Officer Richard Hough is a police officer with the Philadelphia Police Department and has been a police officer for six and a half years. In the early morning hours of January 15, 2012, Officer Hough and his partner, Officer William Lynch, Jr., were working a shift that had begun at 8:00 p.m. on January 14 and was set to end at 4:00 a.m. At 2:33 a.m., Officers Hough and Lynch received a radio dispatch that there was a group of men standing on the street on the 3400 block of Old York Road and that one of them, a black male wearing a brown leather jacket and black hooded sweatshirt, was armed. Hough Test. at 5-8; Gov't Ex. 1.

At the time they received the radio dispatch, Officers Hough and Lynch were in their vehicle about 25 city blocks away in the area of G Street and Allegheny Avenue. Officer Lynch was driving. Upon receiving the radio transmission, Officers Lynch and Hough drove to the 3400 block of Old York Road, arriving there about five minutes later. Hough Test. at 9, 15.

Officers Lynch and Hough pulled up to 3434 Old York Road in the northbound lane on the east side of the street. Id. at 9. Delaine, who had been standing on the porch of her home, saw the police car coming down the street. She walked down the steps from her porch to the sidewalk and then out into the street, approaching the driver's side of the police car. D. Abu Bakr Test. at 92; S. Abu Bakr Test. at 110; Hough Test. at 9, 16-17. Delaine asked the officers whether they had arrested her son, referring to Ismail. D. Abu Bakr Test. at 92.

While Delaine was speaking with the officers, Officer Hough observed a male, later identified as Mallory, standing behind her and to her left.*fn3 He was wearing a brown leather jacket with a dark hooded sweatshirt underneath, which matched the description in the flash report dispatched a few minutes earlier.*fn4 Mallory said something to Delaine or the officers. As he did so, his jacket lifted and Officer Hough observed the dark handle of a revolver sticking out of Mallory's waistband. Officer Hough then stated to his partner, "gun," the normal method of identifying the presence of a weapon. Officer Hough exited the vehicle and ordered Mallory to stop. Mallory did not comply and instead ran into the house, shutting the door behind him. Officer Hough ran toward the house, with Officer Lynch following. At that time, Officer Hough did not know whose home Mallory was entering. Hough Test. at 9-10, 13, 17, 19-20, 26. As the officers ran from their vehicle to the house, their hands were on their guns. D. Abu Bakr Test. at 101.

Siddiqah went toward the front door and attempted for a few seconds to block the officers from entering the house. She yelled at the officers that they had no right to enter because they did not have a warrant. Officers Hough and Lynch mounted the steps to the porch and one of them pushed Siddiqah aside. S. Abu Bakr Test. at 112. Officer Hough then kicked the front door once, breaking its latch. He felt someone pushing the door shut from inside the house, however, and assumed it was Mallory who was preventing his entrance. Officer Hough then repeatedly kicked the door, which was made of several panels. Officer Hough eventually kicked through a lower panel on the door. He felt the pressure from the other side of the door release and was able to push the door open. Hough Test. at 10-11. The doorknob is on the right side of the door and, when facing the entryway, the door opens into the house and to the left.*fn5 I. Abu Bakr Test. at 54, 60.

While Officer Hough was kicking open the door to the house, Officer Lynch called for backup. Upon entering the home with Officer Lynch, Officer Hough observed that the first floor was completely dark. Hough Test. at 11-12, 29. Siddiqah and Delaine followed Officers Hough and Lynch into the house, and Siddiqah began screaming and crying. The officers told her to shut up and told her and Delaine to get out of the house. At that point, another of Mallory's sisters, Tazkeyah Abu Bakr, started coming down the stairs from the second floor to the first floor of the house. One of the officers pointed his gun at Tazkeyah's face and told her to get off of the stairs and get out of the house. Delaine, Siddiqah, and Tazkeyah then left the house and waited on the front porch. S. Abu Bakr Test. at 112-13; D. Abu Bakr Test. at 94; T. Abu Bakr Test. at 125-26; Hough Test. at 20.

Once the women had exited the home, Officers Hough and Lynch waited in the first floor living room, located directly next to the foyer, for backup to arrive before beginning a search of the house. Officer Hough did not inform Officer Lynch where he thought Mallory's gun was located. Hough Test. at 12, 20, 29-30.

C. Officers Search 3434 Old York Road In a matter of seconds, Officers Kevin Gorman and Kevin Robinson arrived on the scene in response to Officer Lynch's request for backup. Officer Hough directed them to wait on the first floor, with one stationed near the front door of the house. He also directed them not to let anyone inside the house. He did not tell either of the backup officers where he believed Mallory had placed the gun that he had previously seen in his waistband. Id. at 12, 20, 30-31, 35-36.

Officers Hough and Lynch then searched the four-story home for Mallory. They started on the top floor of the house and worked their way down. Officers Hough and Lynch searched areas where someone could hide, including closets, rooms, and spaces under beds. Id. at 11, 14. They also searched areas small enough to hide Mallory's weapon, but not Mallory. After the police had left, Mallory's siblings surveyed the house and noticed that drawers in certain rooms had been opened, clothes were strewn "everywhere," and a pillow had been flipped over. I. Abu Bakr Test. at 59; S. Abu Bakr Test. at 117; T. Abu Bakr Test. at 128.

While the police were searching the home, Ismail returned. He noticed that the lower right panel of the front door had been broken but was not completely dislodged. It was still hanging from the door. Ismail entered his mother's home and encountered one officer standing by the first-floor kitchen and another officer coming down the stairs leading to the first floor. Ismail began arguing with the officer descending from the second floor. Delaine came into the house and brought Ismail outside to join the other friends and family members, who were waiting on the porch. I. Abu Bakr Test. at 53-57. Richard Thomas, Ismail's friend, attempted to calm Ismail down. Thomas Test. at 76.

It was then that Sergeant Marc Hayes, a supervising officer, arrived and spoke with Delaine.*fn6 She explained that theofficers in the house had asked everyone to wait outside but that it was cold out that night. Sergeant Hayes then permitted Mallory's family members and friends to come back into the house and wait in the living room on the first floor. D. Abu Bakr Test. at 95; I. Abu Bakr Test. at 57.

After searching the upper floors, Officer Hough returned to the first floor and encountered Sergeant Hayes. Officer Hough saw that some of the house's occupants, previously ordered out of the house, were now back in the home and in the living room. Officer Hough explained to Sergeant Hayes that he did not want any non-officers in the house because he had not yet recovered the firearm he had earlier seen on Mallory's person. Officer Hough did not, however, tell Sergeant Hayes where he thought the gun was located. Given Officer Hough's concerns, the officers sent Mallory's friends and family members back outside to wait on the porch.*fn7 Hough Test. at 21-22, 32-33.

As the officers were searching the first floor of the home, they located a door in the back of the house. Officer Hough first thought it was an exterior door leading outside. After peering out a back window, Officer Hough realized that the door led to a bathroom addition built onto the house. He was over 90% sure that Mallory was hiding in that bathroom. Officer Hough tried to open the bathroom door, but it was locked. He and Officer Lynch went out to the front porch and asked Delaine to come inside and assist in getting Mallory out of the bathroom. They wanted to see if Delaine had a key to the bathroom or if she could coax Mallory out voluntarily before they resorted to breaking down the bathroom door. Officer Hough asked Delaine whether the door was usually locked. She stated that it was not and that she did not have a key. Officer Hough then asked Delaine to ask Mallory to come out of the bathroom. No response came from within the bathroom. Id. at 11, 32-34.

The officers then used a small crowbar to pry the door open and found Mallory in the bathroom. The officers arrested and handcuffed Mallory and began leading him out of the house. Id. at 11-12; D. Abu Bakr Test. at 96; I. Abu Bakr Test. at 67.

As the officers led Mallory from the rear of the home toward the front door, one of them either asked whether his fellow officers had checked behind the front door or directed the other officers to check behind the front door. Ismail testified that one of the officers "asked did anybody check back there behind that door." I. Abu Bakr Test. at 67. Mallory's sisters, Siddiqah and Tazkeyah, recall hearing ...

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