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United States v. McMillan

United States District Court, W.D. Pennsylvania

January 4, 2017



          Mark R. Hornak, United States District Judge.

         Pending 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.

         I. BACKGROUND

         On 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.

         Early 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.[1] 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.

         Although 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 pockets. Id.


         In this 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.

         A. Was the Officers' Stop of the Car Lawful?

         Yes. In 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.

         "[P]ossession 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).[2] 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.

         B. Could the Officers Lawfully Ask Defendant to Leave the Car and Then Handcuff Him?

         Yes. 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).

         The 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.

         In this 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 ...

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