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United States v. Acosta

United States District Court, M.D. Pennsylvania

February 16, 2017

UNITED STATES OF AMERICA
v.
BRIAN G. ACOSTA, Defendant

          MEMORANDUM

          Christopher C Conner, United States District Court Chief Judge

         Defendant Brian G Acosta (“Acosta”) moves to suppress physical evidence and statements that police obtained pursuant to his October 23 2015 arrest Acosta argues that evidence from said arrest should be excluded because the officers who arrested him lacked probable cause (See Doc 34) The court will deny Acosta's motion

         I Factual Background

         The following findings are based primarily upon the court's assessment of the credibility of testimonial evidence offered during the evidentiary hearing held on January 11 2017 (See Doc 42)

         On October 23 2015 Harrisburg Bureau of Police Officers Jon Fustine (“Officer Fustine”) and Michael Rudy (“Officer Rudy”) were on duty with the Street Crimes Unit in Harrisburg Pennsylvania (Id. at 11:15-25 33:11-21) Both officers were in unmarked vehicles with their respective partners when they received a call at approximately 6:00 pm from dispatch stating that there was a white male with a black shirt and camouflage hat with a gun in the area of 20th Street and Kensington Street (Id. at 12:9-13:12 33:22-34:10) Officer Fustine drove past the specified area and noticed a man matching the dispatcher's description who Officer Fustine later identified as Acosta (Id. at 13:22-14:5 15:6-9) Officer Fustine and his partner parked and exited their vehicle to follow Acosta on foot down an alleyway (Id. at 14:15-15:14) Officer Rudy received a radio transmission from Officer Fustine describing Acosta's location (Id. at 35:2-9) Officer Rudy located and followed Acosta in his vehicle down an alleyway (Id. at 35:5-23)

         Acosta testified that he was walking home around 6:00 pm on October 23 2015 (Id. at 4:4-24) He stated that he encountered Officer Rudy in his unmarked vehicle and that he felt threatened by the vehicle with tinted windows but did not see police (Id. at 5:2-19 6:1-10) Contrary to Acosta's account Officer Fustine testified that he was following Acosta on foot and his radio went off causing Acosta to look behind him (Id. at 15:12-18) Acosta began to run (Id. at 6:1-13 15:15-22 37:4-10) Officer Rudy testified that the windshield of his vehicle was not tinted he and his partner were both wearing uniforms with “POLICE” printed in gold lettering across their chests and Acosta was only feet away from Officer Rudy's vehicle (Id. at 43:15-46:4) Given Acosta's testimony that he saw the vehicle when it pulled up beside him (id at 5:4-15 6:8-10) the court credits the officers' account to wit: when Acosta saw and heard the police he began to run (Id. at 37:3-6)

         Acosta held his right side as he ran (Id. at 16:2-13 37:11-14) Officer Fustine pursued him on foot while Officer Rudy pursued him in his vehicle (Id. at 16:2-3 37:8-16) Officer Fustine lost sight of Acosta when he turned onto Kensington Street from the alleyway but Officer Rudy exited his vehicle and pursued Acosta as he ran into a yard on Kensington Street (Id. at 16:20-23 37:17-38:1) Officer Rudy followed Acosta through the backyard of 2044 Kensington Street and lost sight of him when he rounded a corner. (Id. at 37:21-39:16). Officer Fustine saw Acosta emerge from the backyard and chased him until he and another officer were able to detain him a few blocks away. (Id. at 17:1-22).

         Officer Rudy was not involved in the actual apprehension of Acosta; instead, he checked Acosta's flight path for evidence. (Id. at 39:17-40:2). Officer Rudy found a firearm lying on the ground in the backyard of 2044 Kensington Street. (Id. at 39:24-40:2). Officer Fustine ordered an officer to track Acosta's flight path with a canine, who also located the firearm. (Id. at 17:24-18:15, 40:7-13). Officer Fustine recovered the firearm, which was loaded with live rounds. (Id. at 18:16-20, 40:5-13). Officers then placed Acosta under arrest and searched him, finding a black ski mask on his person. (Id. at 19:12-24).

         II. Procedural History

         On June 22, 2016, a federal grand jury returned a one-count indictment against Acosta. (Doc. 1). A superseding indictment returned on July 20, 2016 charges Acosta with being a felon in possession of a firearm on October 23, 2015 (Count 2) and December 27, 2015 (Count 1) in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). (Doc. 20). Acosta pled not guilty to both counts. (Doc. 27). Jury selection and trial are currently scheduled to begin at 9:30 a.m. on March 6, 2017. (Doc. 44). On December 12, 2016, Acosta filed the instant motion to suppress, accompanied by a supporting brief. (Docs. 34, 35). On December 19, 2016, the United States filed a brief in opposition. (Doc. 37). The court convened a hearing on the motion on January 11, 2017. (See Doc. 42). At the court's direction, the parties filed supplemental briefs on February 3, 2017. (Docs. 45, 46). The motion is fully briefed and ripe for disposition.

         III. Discussion

         The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. See U.S. Const. Amend. IV; Horton v. California, 496 U.S. 128, 133 (1990). Generally, a seizure is reasonable only if effectuated with a warrant supported by probable cause. See United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002) (citing Katz v. United States, 389 U.S. 347, 356-57 (1967)). The government bears the burden of demonstrating that an exception to the Fourth Amendment's warrant requirement existed at the time of a seizure. See U.S. v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995).

         The Supreme Court has long recognized that a warrantless arrest of an individual in a public place, when supported by probable cause, does not violate the Fourth Amendment. See United States v. Watson, 423 U.S. 411, 423-24 (1976). Probable cause is an amorphous concept. Ornelas v. United States, 517 U.S. 690, 695-96 (1996). It is “not readily, or even usefully, reduced to a neat set of legal rules.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). Its existence must be determined from the view of the officer on the street, not the judge in the courtroom. United States v. Sokolow, 490 U.S. 1, 7-8 (1989); see also United States v. Cortez, 449 U.S. 411, 418 (1981). Probable cause exists when circumstances within a police officer's knowledge are sufficient for a prudent person to conclude that a person has been or is committing an offense. Beck v. Ohio, 379 U.S. 89, 91 (1964). Mere suspicion is insufficient, but evidence beyond a reasonable doubt is not required. Orsatti v. N.J. State Police, 71 F.3d 480, 482-83 (3d Cir. 1995).

         Flight upon appearance of police alone cannot “elevate reasonable suspicion to detain and investigate into the probable cause required for an arrest, ” but flight coupled with other indications of wrongdoing may support probable cause. United States v. Navedo, 694 F.3d 463, 472 (3d Cir. 2012). An anonymous tip concerning a person carrying a gun lacks “indicia of reliability” and does not support reasonable suspicion without corroboration. Robertson, 305 F.3d at 175 (citing Florida v. J.L.,529 U.S. 266, 274 (2000)). Several factors may corroborate an anonymous tip, to wit: presence in a high crime area, presence late at night, nervous behavior or flight, or conduct that conforms to an officer's “specialized knowledge of criminal activity.” United States v. Brown,448 F.3d 239, 251 (3d Cir. 2006). Other factors include “geographical and temporal proximity of the stop to the scene of the alleged crime, ” and number ...


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