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United States v. Lowe

United States District Court, Third Circuit

January 8, 2014

UNITED STATES
v.
SHAWN LOWE

DECISION FINDINGS OF FACT AND CONCLUSIONS OF LAW

CURTIS JOYNER, J.

Pursuant to the Order of the United States Court of Appeals for the Third Circuit, United States of America v. Shawn Lowe, __Fed. Appx. __, 2013 WL 1876999 (3d Cir. May 7, 2013), and upon consideration of Defendant’s Motion to Suppress Physical Evidence and Statement and Memorandum (Doc. No. 19), Supplement in Support Thereof, (Doc. No. 25) and the United States’ Response In Opposition Thereto (Doc. No. 27), as well as Defendant’s Post-Hearing Memorandum (Doc. No. 58) and Proposed Findings of Fact and Conclusions of Law (Doc. No. 59) and the United States’ Supplemental Memorandum (Doc. No. 60) and Proposed Findings of Fact and Conclusions of Law (Doc. No. 61), as well as Defendant’s Reply (Doc. No. 62), the Court enters these findings of fact and conclusions of law:

Findings of Fact

1. On September 19, 2010, at approximately 4:00 am, Philadelphia Police Officers Ryan McGinnis and Francesco Campbell received a radio call reporting “flash information of a black male wearing a gray hoodie with a gun in his waistband talking to a female that was at . . . 914 North Markoe Street outside.” (Tr. 6). The tip was anonymous.

2. The 900 block of North Markoe Street is a violent, high crime area known for drug crimes. Officer Campbell had made numerous narcotics and gun arrests in the vicinity of that block. (Tr. 4).

3. Approximately an hour and a half earlier, Officers Campbell and McGinnis had received a call regarding an alleged gun shot at the 900 block of 49th Street, which is “around the corner” from 914 North Markoe Street. (Tr. 8). No one had been apprehended for that shooting. (Tr. 39, 40).

4. When the officers received the call, they were in a marked police car at 36th and Market Streets. (Tr. 7). Officer McGinnis activated the car’s emergency lights and sirens; when the officers were about a block and a half away from 914 North Markoe Street, Officer McGinnis turned off the lights and sirens. (Tr. 7). It took the officers approximately two minutes to arrive at 914 North Markoe. (Tr. 7).

5. North Markoe Street is a one-way street with traffic running northbound. (Tr. 23). House number 914 is on the left hand side of the block. (Tr. 23). Because of construction being done on the house just northward of 914 North Markoe, there was a fence on the sidewalk preventing access to the North of house 914. (Tr. 23, 27, 112, 113).

6. Officers Campbell and McGinnis stopped their patrol car approximately 50 or 60 feet south of 914 North Markoe St. (Tr. 8, 41). Two additional police cars, including one driven by Officer Pezzeca, pulled in behind them within seconds of their arrival. (Tr. 18, 24).

7. The officers saw Shawn Lowe, wearing a gray hoodie, in front of 914 North Markoe Street. (Tr. 8, 40, 41). Mr. Lowe was speaking with a woman, later identified as Tamika Witherspoon. (Tr. 8, 109). Tamika Witherspoon later testified that 914 North Markoe Street was her home address. (Tr. 108).

8. Officers Campbell and McGinnis did not see a gun or any indication of a gun, nor did they see or hear any arguing when they first pulled up to the residence. (Tr. 20, 49, 50).

9. The four officers from the three police cars exited the vehicle and began to approach Mr. Lowe. (Tr. 21, 22).

10. The four witnesses provided varying versions of what ensued. Officer McGinnis testified that he approached Mr. Lowe by walking North on North Markoe Street, with Mr. Lowe sitting fifty to sixty feet ahead and to the left. (Tr. 41, 42). As he approached, Officer McGinnis asked Mr. Lowe to remove his hands from his pockets. (Tr. 43, 51). Mr. Lowe did not do so; instead, he “froze” and looked both ways over his shoulders. (Tr. 43, 52). Officer McGinnis proceeded to give Mr. Lowe “numerous verbal commands to take his hands out of his pockets” with which Mr. Lowe did not initially comply. (Tr. 43). Because Mr. Lowe kept his hands in his pockets, Officer McGinnis drew his gun. (Tr. 50).

11. Only after five to ten commands were given did Mr. Lowe take his hands out of his pockets and slowly move towards the wall. (Tr. 43, 57). The officers pushed him towards the wall, and Mr. Lowe reached for his waistband. (Tr. 44). Officer McGinnis then observed a gun in Mr. Lowe’s ...


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