United States District Court, W.D. Pennsylvania
R. Hornak, United States District Judge.
before this Court is Defendant's Motion to Suppress
Evidence, ECF No. 21. For the reasons that follow,
Defendant's Motion is denied in part and granted in part.
March 8, 2016, the Defendant was charged with possession of a
firearm and/or ammunition by a convicted felon, possession
with intent to distribute a quantity of heroin, and
possession of a firearm in furtherance of a drug trafficking
crime. The events leading up to Defendant's indictment
are as follows.
in the morning on Saturday, November 14, 2015, two police
officers were patrolling part of Homewood, a neighborhood in
Pittsburgh, and used their flashlights to look into a parked
car. One officer noticed that the "slide and muzzle of a
large-caliber black and silver pistol was protruding from
underneath the front driver's seat." ECF No. 24 at
2; see also ECF No. 30 at 18:12-18:16. The officer
then alerted his partner, who used his flashlight from the
front of the car near the passenger side to see the firearm.
ECF No. 30 at 18:4-18:22. A short while later, a third
officer saw Defendant sitting in the driver's seat of the
car. At approximately 3:11 a.m., the car drove away, and at
approximately 3:12 a.m., several police officers stopped the
car and approached it, some with their weapons out of their
holsters. Id.; ECF No. 32 at 6; ECF No. 30
at 77:15-78:4, 98:1-98:14. Some of the subsequent events are
disputed. Defendant asserts that he was never told he was
going to be detained in handcuffs, ECF No. 32 at 4, and the
Court notes that no such warning can be heard in the United
States' Exhibit 1, the video from the dashboard camera in
one of the police cars ("the Video"). See
U.S. Ex. 1. However, one of the officers testified at the
Court's Hearing held on August 30, 2016 that he heard
another officer order Defendant to get out of the car and
inform Defendant that he would be detained in handcuffs. ECF
No. 30 at 40:5-40:13. In any case, what is plain is that
Defendant was promptly handcuffed and that an officer frisked
him but did not find anything of note. ECF No. 24 at 2-3.
What is also plain from the Video is that Defendant was
pushed by one officer twice, once when he was being
handcuffed and once after. U.S. Ex. 1 at 3:12:40-3:13:04. At
the Hearing, the officer testified that he "pushed
[Defendant] slightly" because "[Defendant] bladed
his body and turned like he was getting back into the
vehicle." ECF No. 30 at 86:24-86:25.
no weapons were found during the frisk of Defendant, another
officer went into the driver's side of the
Defendant's car and found the gun; it had been pushed
further under the driver's seat. ECF No. 24 at 3; ECF No.
32 at 2. That officer then asked Defendant if he had a permit
to conceal carry a firearm, and Defendant said that he did
not. ECF No. 24 at 3. The officers verified Defendant's
lack of a permit using law enforcement computer databases,
id, and told Defendant that he was under arrest.
U.S. Ex. 1 at 10:20-10:50. The computer databases also
informed the officers that that the firearm was registered to
someone else and had been reported stolen. ECF No. 24 at 3.
The officers then proceeded to search Defendant's person
and the car. They found 24 stamp bags of heroin in the
car's center console and $2, 899 in Defendant's
case, Defendant is seeking to suppress all the physical
evidence found during his encounter with the police, as well
as his statement to them about not having a gun license. ECF
No. 21 at 3-4. It is well-established that "evidence
seized during an unlawful search [can]not constitute proof
against the victim of the search, " and that "[t]he
exclusionary prohibition extends as well to the indirect as
the direct products of such invasions." Wong Sun v.
United States, 371 U.S. 471, 484, 83 S.Ct. 407, 416, 9
L.Ed.2d 441 (1963) (citing Weeks v. United States,
232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914),
overruled on other grounds by Mapp v. Ohio, 367 U.S.
643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). Furthermore,
"the prosecution may not use statements" made in
violation of Miranda. Miranda v. Arizona, 384 U.S.
436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thus, to
appropriately evaluate Defendant's Motion and determine
if any evidence should be excluded, the Court will conduct a
step-by-step analysis of the officers' actions.
Was the Officers' Stop of the Car Lawful?
Terry v. Ohio, the Supreme Court held that "an
officer may, consistent with the Fourth Amendment, conduct a
brief, investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot."
Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct.
673, 675, 145 L.Ed.2d 570 (2000) (citing Terry v.
Ohio, 392 U.S. 1, 30 (1968)). The question for the Court
thus becomes whether or not the officers in this case had a
reasonable suspicion that "criminal activity [was]
afoot." The Court concludes that they did.
of a concealed firearm by an individual in public is
sufficient to create a reasonable suspicion that the
individual may be dangerous, such that an officer can
approach the individual and briefly detain him in order to
investigate whether the person is properly licensed."
Com. v. Robinson, 410 Pa.Super. 614, 620, 600 A.2d
957, 959 (1991), appeal denied, 617 A.2d 1273 (Pa.
1992). This holding has been extended to allow the police to
stop cars in situations in which a firearm is
"originally observed in an unoccupied car [...]
regardless of whether a violation of the Motor Vehicle Code
was observed." Com. v. Mason, 2015 Pa.Super.
268, 130 A.3d 148, 153 (2015), appeal denied, 138
A.3d 3 (Pa. 2016); see United States v. Lewis, 672
F.3d 232, 239 (3d Cir. 2012) (recognizing the "paramount
importance" of considering the treatment of firearms
under local law). Because the police officers in this case
had seen a firearm in plain view in Defendant's car, the
officers' initial stop of the car was lawful.
Could the Officers Lawfully Ask Defendant to Leave the Car
and Then Handcuff Him?
The officer's instruction to Defendant to leave the car
was lawful, Pennsylvania v. Mimms, 434 U.S. 106, 98
S.Ct. 330, 54 L.Ed.2d 331 (1977), as was the officer's
decision to restrain Defendant in handcuffs. In his papers,
Defendant argues that the officers' actions, including
that at least some of the officers had their guns drawn and
that one officer handcuffed him and pushed him twice,
constituted a de facto arrest at that moment.
Although the Court acknowledges that "it can be
difficult to distinguish between a Terry stop, which
requires only reasonable suspicion, and a de facto
arrest, which must be supported by probable cause, " the
Court concludes that these events did not constitute a de
facto arrest, at least not early on. United States
v. Johnson, 592 F.3d 442, 447-48 (3d Cir. 2010). The
Third Circuit has "recognized that 'the vast
majority of courts have held that police actions in blocking
a suspect's vehicle and approaching with weapons ready,
and even drawn, does not constitute an arrest per se.'
United States v. Edwards, 53 F.3d 616, 619 (3d
Cir.1995) (collecting cases). Nor does placing a suspect in
handcuffs while securing a location or conducting an
investigation automatically transform an otherwise-valid
Terry stop into a full-blown arrest."
Id. at 448 (citations omitted).
fact that a police officer pushed the Defendant against the
driver's side of the car twice when he first exited the
car does not change the Court's conclusion. "[T]he
right to make an arrest or investigatory stop necessarily
carries with it the right to use some degree of physical
coercion or threat thereof to effect it, " Graham v.
Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872, 104
L.Ed.2d 443 (U.S. 1989), and "when police officers make
an investigative stop, they may take such steps as are
[']reasonably necessary to protect their personal safety
and to maintain the status quo during the course of the
stop.[']" Edwards, 53 F.3d at 619 (quoting
United States v. Hensley, 469 U.S. 221, 235, 105
S.Ct. 675, 684, 83 L.Ed.2d 604 (1985)). In order to evaluate
the reasonableness of the officer's use of force in this
case, the Court must "judge from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight." Graham, 490 U.S. at 443.
case, the police strongly believed that there was a firearm
in Defendant's car (for good reason) and Officer Patton
(the officer who pushed Defendant) testified that he
witnessed Defendant "blad[ing] his body and turn[ing]
like he was getting back into the vehicle." ECF No. 30
at 86:24-86:25. After reviewing the Video, the Court
concludes that Defendant did turn his body in such a way that
it was reasonable for the police officers, in the moment and
under the circumstances, to believe that Defendant was
planning to try to get back into the car, where the officers
had reason to believe a firearm was still located. In
reality, a fair assessment of the Video is that as Defendant
was out of the car, directly adjacent to the open
driver's door, he was moving back toward the driver's
side of the passenger compartment. Accordingly, any pushing
of Defendant by the officer did not elevate the
Terry stop into a de facto arrest because
the officer's "actions were consistent with the
actions of a reasonably prudent person under the belief that
their own ...