United States District Court, Eastern District of Pennsylvania
Defendant Anthony Robinson is charged with two counts of Hobbs Act robbery, 18 U.S.C. § 1951(a), and two counts of using and carrying a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c). Defendant claims police arrested him without probable cause in violation of the Fourth Amendment and therefore moves to suppress evidence seized after that arrest, specifically his clothes and shoes, as well as a photograph of him taken by the police. He also moves to suppress out-of-court identifications that were allegedly obtained in violation of his Fifth Amendment rights. The Court held a suppression hearing on September 2, 2014. For the following reasons, the Court denies the motion.
Defendant’s charges arise out of two armed robberies, both of which occurred on the evening of December 1, 2012. (Def.’s Mot. to Suppress at 2.) The first robbery was at a Subway restaurant in Center City, Philadelphia and the second was at an Anna’s Linens store in Germantown, Philadelphia. (Id.)
During the first robbery, a man walked into the Subway, which was otherwise empty, and ordered a sandwich. (Id.) The Subway employee working that evening, J.H., made the sandwich and the man paid for it. (Id.) The man then pulled out a black handgun and said “Can you do me one more favor? Hand me the money.” (Id.) J.H. credibly testified at the suppression hearing that the man was approximately two feet away from her, they were the only two people in the restaurant, his face was uncovered, and she got a good look at his face before and during the robbery. (Tr. of Hr’g on Mot. to Suppress [Tr.] at 11-12, 24.) J.H. gave him the money in the cash register and he asked her if she knew the combination to the safe. (Id. at 10.) J.H. said she did not and he threatened to hurt her if she was lying. (Id.) He then left the restaurant. (Id.)
J.H. called the police. (Def.’s Mot. to Suppress at 2.) J.H. gave the officer who responded to the scene a description of the robber: he was a black male, about 35-40 years old, about 5’8”, thin build, with salt and pepper hair and a beard. (Id. at 2-3.) J.H. stated that the robber was wearing a black skull cap, a black and gray hooded sweatshirt with lettering on the front, gray jeans, and black and white New Balance sneakers. (Id. at 3.) J.H. also went to the police station and gave a written statement describing the robber to Detective Gino Andracchio. (Tr. at 13.)
The robbery at Anna’s Linens occurred a few hours later. (Def.’s Mot. to Suppress at 3.) A man walked into the mostly empty store and bought a pillow. (Id.; Gov’t Mot. in Resp. at 2.) The man then displayed a black handgun in his waistband and said to the clerk, “Can you do me a favor, give me all your money in the register.” (Def.’s Mot. to Suppress at 2.) The clerk, E.L., handed over the money. (Id.) About an hour after the robbery, E.L. gave the police the following description of the suspect: dark-complected, black male, with a goatee with gray hairs, between 5’7” and 5’9”, thin, and in his forties. (Id.; Tr. at 57-58.) E.L. further stated that the suspect, “wore a shiny green Eagles jacket, a knit Eagles hat, and gray or black sweat pants.” (Def.’s Mot. to Suppress at 2; Tr. at 57-58.) The police obtained surveillance footage of this incident. (Gov’t Mot. in Resp. at 2.)
J.H. testified that on the day following the robberies, she was in a car with her wife and another person, near the intersection of 10th and Wagner Streets in Philadelphia, when she spotted Defendant on the street and identified him as the robber. (Tr. at 14.) She testified credibly that she recognized his face and noticed that he was wearing the same clothes that the robber had worn the night before. (Id. at 16.) J.H. called Detective Andracchio and told him she had spotted the robber on the street. (Id. at 15.) She gave a description of Defendant over the phone. (Id. at 26-27.) Defendant got into a black Cadillac Escalade and J.H. followed him closely, without losing sight of the car. (Id. at 16-17, 31.) J.H. stayed on the phone with Detective Andracchio the whole time, giving him locational updates as well as a description of the car and its license plate number. (Id. at 17.)
J.H. saw the Escalade get pulled over by a police cruiser. (Id.) She saw a police officer take Defendant out of the Escalade, handcuff him, and put him in a police cruiser. (Id. at 17, 32.) J.H. confirmed to a uniformed officer that she identified Defendant as the man who had robbed her. (Id. at 17.)
Philadelphia Police Officer Timothy Auty testified credibly that on December 2, 2012, while on duty in North Philadelphia, he heard a report by Detective Andracchio on his police radio that a victim of an armed robbery had identified a suspect on the street, followed by a description of the car, the suspect, and the location. (Id. at 35-36.) He drove his cruiser to the location—close to the intersection of 10th and Duncannon Streets—found an Escalade matching the description and license plate number he had heard over the radio, pulled behind it and initiated the stop. (Id. at 35-36, 40-41.) Because the Escalade had tinted windows, the suspect was wanted for armed robbery, and Officer Auty was alone, he pulled his gun and pointed it at the ground for his safety as he approached the Escalade. (Id. at 38-39, 41-42.) When he saw Defendant raise his hands and step out of the car, Officer Auty holstered his gun, frisked Defendant, handcuffed him, and put him in the back of his cruiser. (Id. at 38, 42-43.) After hearing that J.H. had confirmed her identification of Defendant, Officer Auty officially arrested Defendant and took him back to the stationhouse for booking. (Id. at 38.) Because J.H. had identified Defendant as wearing the same clothes as the robber, police seized Defendant’s clothes and shoes and also took his photograph. (Def.’s Mot. to Suppress at 5.)
Detective Mark Flacco testified credibly as follows: He was the officer in charge of investigating the robbery at Anna’s Linens. (Tr. at 49.) He viewed the surveillance video from both the Anna’s Linens and the Subway robberies and testified that the robber appeared to be the same in each video and the robbery method was very similar. (Id. at 51, 59-60.) Based on the video from Anna’s Linens, Detective Flacco testified that E.L. had ample opportunity to view the robber before and during the robbery. (Id. at 58-59.) With the picture taken at Defendant’s arrest, Detective Flacco created a photo array to show to E.L. (Id. at 53-54.) The array, which Detective Flacco created by inputting biometrics corresponding to the description of the robber into a computer program, contained eight photos of black men with facial hair. (Id. at 53, 61-63; Gov’t Exh. 1.) E.L. picked Defendant out of the array without hesitation and without prompting from Detective Flacco. (Id. at 57.)
II. STANDARD OF REVIEW
On a motion to suppress, the movant bears the burden of establishing a violation of his constitutional rights by a preponderance of the evidence. See Rakas v. Illinois, 439 U.S. 128, 132 n.1 (1978); United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995); United States v. Acosta, 965 F.2d 1248, 1257 n.9 (3d Cir. 1992). Once the defendant establishes that the police conducted a warrantless search, ...