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United States v. Serrano

United States District Court, Third Circuit

July 8, 2013

UNITED STATES OF AMERICA
v.
LUIS A. SERRANO

MEMORANDUM

DuBOIS, JAN E., J.

I. INTRODUCTION

Defendant, Luis Serrano, is charged in the Indictment as a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(e). Defendant has moved to preclude the Government from introducing at trial physical evidence obtained during a Terry stop. A hearing on the Motion was held on June 27, 2013. For the reasons that follow, defendant’s Motion is denied.

II. FACTS

In the early morning hours of February 25, 2012, Sgt. Francis Barclay of the Philadelphia Police Department responded to “numerous calls” regarding “persons with a gun” in the area of Deveraux Street and Torresdale Avenue. (Transcript of Motion Hearing, July 27, 2013, at 4-5 (“Hearing”).) Sgt. Barclay testified that Deveraux and Torresdale “is probably not the worst area in the 15th district” in terms of crime, “but it’s getting busier.” (Id. at 4.) Although Sgt. Barclay was assigned to the Second District in Northeast Philadelphia, he responded to these calls in the adjoining 15th District to assist the officers there. (Id. at 5.)

When Sgt. Barclay arrived at the intersection of Deveraux and Torresdale, he observed “numerous crowds that were forming” in the area and saw “people just milling around all over the place.” (Id. at 7.) Upon his arrival he was told that officers from the 15th District had recently placed a male suspect in custody and recovered a gun from him. (Id. at 8.)

As Sgt. Barclay was returning to his marked police car, an unidentified woman informed him that a “man with a cane had threatened to come up with a gun.” (Id. at 8.) Sgt. Barclay, along with Officers Kevin Feeney and Kevin McGrorty of the Second District, then questioned a man carrying a cane, identified as Israel Santiago. (Id. at 9.) The officers concluded that Santiago did not have a gun. (Id.) However, Santiago told Sgt. Barclay that “he had gotten into an argument at the bar [at the corner of Deveraux and Torresdale, Fat Pete’s, ] and that when he walked outside a male in a van had showed him a gun and told him he was going to get him.” (Id. at 9-10.) Santiago added that he told the male in the van that he “was going to bring my friends back with guns.” (Id. at 10.) Santiago stated that he did not want to be involved with the police any further and did not intend to file a complaint. (Id.) Accordingly, Sgt. Barclay did not take any action with regard to the information provided by Santiago. (Id.)

Sgt. Barclay then returned to his patrol unit and began driving on Deveraux towards Torresdale. (Id. at 11.) However, as he was backing up, an unidentified man (“John Doe”) came from the steps in front of Fat Pete’s bar and “flagged” Sgt. Barclay down. (Id.) Sgt. Barclay walked with John Doe into the bar. (Id. at 12.) Once inside, Doe told Sgt. Barclay, “that there was a man that he knew that had a gun that was coming to get him.” (Id.) Doe identified the man he believed had a gun by pointing out the window of the bar and across the street, on the west side of Torresdale, at a man later identified as defendant Serrano, who was standing alongside a minivan which had the passenger door open. (Id. at 13.) Doe went on to tell Sgt. Barclay that he was a cousin of Serrano’s wife and that two days earlier Serrano had threatened him with a gun. (Id.) Sgt. Barclay testified that Doe “appeared genuinely upset and scared, he was shaking, just very scared.” (Id.) Sgt. Barclay further stated that based on his own observations and the information provided, he found Doe to be credible. (Id. at 14.)

Sgt. Barclay observed Serrano look “northbound on Torresdale in [his] direction and then jumped into the [passenger side of the minivan], ” leading Sgt. Barclay to conclude that Serrano might leave the scene. (Id. at 16.) In response, Sgt. Barclay instructed Doe to wait inside Fat Pete’s and then got into his patrol car and drove up behind the minivan. (Id. at 17.) When Sgt. Barclay approached the minivan, he “saw the brake lights go on and it appeared the vehicle went into gear.” (Id.) He then shined his car’s spotlight on the minivan and observed the car’s lights go on again “like it was being put back into park.” (Id. at 18.) By this time, Officers Feeney and McGrorty had driven up in their patrol car to the front of the minivan, effectively blocking it. (Id. at 19.) At about the same time, Sgt. Barclay saw through the rear window of the minivan “a shadow which was . . . in the passenger seat bend to the left and reach down, ” such that Sgt. Barclay believed that “somebody . . . [was] either retrieving something or hiding something.” (Id. at 18-19.) Sgt. Barclay then approached the minivan on the passenger side, ordered Serrano from the vehicle. A handgun and ammunition was recovered from the minivan. (Id. at 19.) Sgt. Barclay later returned to Fat Pete’s and asked Doe if he wished to make a report or give a statement, but Doe stated that he was “absolutely not . . . getting involved” and left. (Id. at 20.)

III. LEGAL STANDARD

“On 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.” United States v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005) (citing United States v. Johnson, 63 F.3d 242, 245 (3d Cir.1995)). The government must meet this burden by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 (1974).

A police officer may conduct an investigatory stop “when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense . . . .” Arizona v. Johnson, 555 U.S. 323, 326-27 (2009). “When a Terry stop is based on a tip provided by an informant, we must scrutinize the informant’s veracity, reliability, and basis of knowledge to determine whether the information relied upon by the police was sufficient to establish reasonable suspicion for the stop.” United States v. Johnson, 592 F.3d 442, 449 (3d Cir. 2010).

IV. DISCUSSION

Serrano moves to suppress the handgun and ammunition seized from the minivan on the ground that the police officers did not have reasonable suspicion to effectuate a Terry stop.[1]Specifically, Serrano argues that the informants in this case were unreliable and insufficient to establish reasonable suspicion for several reasons. First, Serrano states that because the stop commenced when Sgt. Barclay shined his spotlight on the minivan, his alleged observations of hiding movements cannot support a finding of reasonable suspicion. Second, Serrano claims that Israel Santiago was not reliable because did not appear to be a crime victim, had been previously arrested for theft and receipt of stolen property, and had a motive to implicate someone else because he was considered a criminal suspect. Third, Serrano similarly argues that John Doe was unreliable because he failed to give his name, left the scene, and stated only that Serrano had shown him a gun two ...


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