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United States v. Bey

United States District Court, E.D. Pennsylvania

March 6, 2017




         Defendant Muadhdhin Bey is charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Bey moves to suppress all physical evidence and statements derived as a result of the warrantless stop and search that led to the discovery of the firearm. On consideration of Bey's motion, the government's opposition thereto, the parties' supplemental briefs, and after an evidentiary hearing, the Court finds as follows:


         A. Vehicle stop at 1600 Point Breeze Avenue

         At approximately 10 p.m. on March 28, 2016, Philadelphia Police Officers William Fritz and Brandon McPoyle, who were on routine patrol in the City's 17th Police District, [1] working in full uniform and driving a marked patrol car, observed the driver of a Buick LaCrosse roll through a stop sign as he turned west from 19th Street onto Tasker Street. The officers pulled the car over at 1600 Point Breeze Avenue, between Tasker and Fernon Streets, and parked behind it.

         Fritz and McPoyle got out of their patrol car and approached the Buick, Fritz on the driver's side and McPoyle on the passenger side. Fritz saw three men in the car - a driver, a front passenger, and a rear passenger on the driver's side - and noticed that none of them were wearing seat belts. The officers obtained driver's licenses or identifications from all three men, thus learning that the driver was Albert Lee, the front passenger was Amir Robinson, and the rear passenger was Lionel Burke. The officers returned to their patrol car and performed a warrant check on the three men, which proved negative.

         On returning to the Buick, the officers smelled marijuana and noticed remnants of marijuana on the floorboard of the car. The officers decided to remove all three men from the vehicle, beginning with the rear passenger, Burke. Fritz escorted Burke to the rear of the Buick, where McPoyle performed a frisk. As McPoyle was frisking Burke, Fritz saw a .25-caliber Beretta handgun on the rear floorboard of the car, where Burke had been seated. Fritz retrieved the handgun and instructed McPoyle to handcuff Burke. Before McPoyle could handcuff Burke, however, Burke fled, running northbound on Point Breeze Avenue. McPoyle gave chase on foot. Fritz watched as McPoyle ran after Burke, losing sight of them after they both turned east on Tasker Street.

         When Fritz turned back to face the Buick, he saw that the vehicle's front passenger door was now open. The front passenger, Robinson, was no longer in the vehicle. Fritz glanced southbound on Point Breeze Avenue but could see no sign of Robinson. The arrangement of the intersection led Fritz to infer that Robinson must have fled west on Fernon Street.

         Fritz turned back to the Buick and saw that the driver, Lee, was still seated in the front of the vehicle. Fritz handcuffed Lee, placed him in the patrol car. Returning to the empty Buick he saw a second firearm at the foot of the front passenger seat where Robinson had been seated and retrieved this second firearm.

         Fritz was still in possession of the three men's driver's licenses. He knew, from those licenses and his observations, that the fleeing rear passenger was Burke and the fleeing front passenger was Robinson. Robinson's license contained his full name, photograph, date of birth, address, and height.

         Fritz testified at the suppression hearing that he had been able to observe Robinson during the vehicle stop, albeit with a “limited vantage point” (since he had been standing on the Buick's driver's side), and had seen that Robinson was a black male of average build, wearing a red hoodie or red jacket. Fritz testified that he was unable to see Robinson's legs from his vantage point.

         B. Radio broadcasts by Officers Fritz and McPoyle, 10:00 - 10:03 p.m.

         At 10:00:54 p.m., as McPoyle was running after Burke, Fritz broadcast over police radio that there was a foot pursuit northbound at Point Breeze Avenue and Reed Street (the “Initial Dispatch”). After some radio interference and responses from other police units, the dispatcher instructed: “everybody stay off the air.” Around 10:01:30 p.m., McPoyle came on the air to report that he was chasing a black male. Just after 10:02 p.m., McPoyle broadcast that he had the male in custody at 2100 Fernon Street. Around 30 seconds later, Fritz broadcast that he had “a gun recovered and the passenger bailed . . . .” At this point, there was some confusion over police radio as to how many passengers were still fleeing the car stop. After questioning by the dispatcher, Fritz stated: “My partner ran after Lionel Burke. The passenger we're looking for is Amir Robinson.” This was just after 10:03 p.m.[2]

         C. Officer Madara responds to the broadcasts

         In the meantime, other police units were responding to Fritz's Initial Dispatch reporting the foot pursuit. Among the responding officers was Officer John Madara, who was patrolling nearby in a marked vehicle. Madara arrived at the car stop around 10:04 p.m. On arrival, he spoke with Fritz. Fritz explained that there had been a car stop, he had recovered firearms, two passengers had fled, and one of them - Robinson - was yet to be apprehended. Fritz handed Madara Robinson's driver's license. Fritz's testimony is that he told Madara that Robinson was wearing a red hoodie or red jacket, and that Robinson had fled westbound on Fernon Street.

         At 10:06:46 p.m., Madara broadcast the following information over police radio (the “First Description”):

OFFICER MADARA: We're looking for one male who's gonna be wearing a red hoodie. There will be further flashes.
DISPATCHER: Whenever you're ready.
OFFICER MADARA: His name is gonna be Robinson, Amir. It's gonna be a date of birth of 8-6-94, goes back to 1319 [inaudible] Street. He's wearing a red hoodie. Last seen westbound on Fernon Street.

         After Madara broadcast the First Description, he spoke with Fritz again. Fritz gave Madara further descriptive information about Robinson, namely that he was wearing dark blue pants and looked about Madara's size “but skinnier.” Madara is approximately 6' tall and weighed around 205 pounds in March 2016.

         D. Officers Powell and Cherry respond to the broadcasts

         In addition to Madara, Officers Ernest Powell and Philip Cherry, who were patrolling the area in a marked car and were at 2500 Morris Street (three blocks west and one block south of the car stop), responded to Fritz's Initial Dispatch. Powell turned on the patrol car's lights and sirens, and drove the wrong way up a one-way street to get to 1600 Point Breeze Avenue. On the way there, they heard Fritz's dispatch reporting that he had “a gun recovered and the passenger bailed.”[3] As they pulled up to the car stop, they heard the First Description (a fleeing male suspect by the name of Amir Robinson, wearing a red hoodie, born on August 6, 1994, last seen westbound on Fernon Street). Powell immediately spoke with Madara, who told him that the fleeing suspect was a black male, 6' to 6'1”, about Madara's size but skinnier, around 160 to 170 pounds, wearing dark blue pants and either a red hoodie or a red jacket, [4] fleeing westbound on Fernon or Morris Street. Powell did not recall if Madara relayed information about whether the suspect had a beard.

         Before Powell left the car stop, he saw a photograph of Robinson on the mobile data terminal (“MDT”) in his patrol car. Although the photo Powell saw was not entered into evidence, a photo of Robinson dating from September 8, 2016 was. The latter photo shows that Robinson is a youthful, light-skinned black male. It also shows that, in September 2016, Robinson had a tattoo covering the front of his neck, a short moustache, narrow sideburns, and a small amount of facial hair underneath his chin.

         Thus, by the time Powell left 1600 Point Breeze Avenue, he was aware of Robinson's full name, address, age, ethnicity, approximate height and weight, clothing, and had seen a photograph of him.

         E. Officers Powell and Cherry proceed from the vehicle stop to Lid's Café

         Powell and Cherry were only stopped at 1600 Point Breeze Avenue for a matter of seconds - enough time to receive the verbal description from Madara and to view the photograph of Robinson. They left the car stop just after 10:07 p.m. Because Powell thought a fleeing suspect might “go somewhere where [he] could blend in or get out like real fast, ” he drove to a nearby bar, Lid's Café (“Lid's”). Lid's is located at 2243 Tasker Street, one block northwest of 1600 Point Breeze Avenue. To reach Lid's, Powell drove north on Point Breeze Avenue and turned west on Tasker Street. It took Powell and Cherry less than a minute to arrive at Lid's from the car stop.

         Within a minute after Powell and Cherry left the car stop, Madara radioed a second, more specific description of Robinson (the “Second Description”). This description was broadcast at 10:07:51 p.m.:

OFFICER MADARA: It's gonna be a red hoodie, dark blue pants, it's gonna be a black male about 6 foot 1, approximately 170 to 160. Last seen westbound either on Fernon Street or on Morris.

         Before Madara was able to finish his broadcast, Powell radioed:

OFFICER POWELL: Priority. Sam-3. Gun recovered, one in custody.

         F. Officers Powell and Cherry stop and search Bey

         In the moments before Officer Powell radioed that he had “one in custody, ” he and Cherry had driven from the car stop to Lid's, which was still open for business and had people standing around outside. Powell saw Defendant Bey leaving from the side entrance.[5] Bey, who had his back to the officers, was wearing a red hooded puffer jacket and black sweatpants. Bey did not appear to be out of breath and Powell could not see any bulges in his clothing.

         Powell parked directly in front of Lid's, on the northeast corner of 23rd and Tasker. Both officers exited their patrol car and approached Bey - Powell with his firearm drawn. When he was about 15 to 20 feet from Bey, Powell ordered Bey to turn around and show his hands. Bey immediately complied, turning to face the officers with his hands raised. Although it was nighttime, the street lighting provided Powell with a clear view of Bey.

         Powell told Bey that someone had run from the police, and the incident had something to do with a gun. The parties dispute whether Bey admitted to having a gun in his possession at this point.

         Although Powell testified at the suppression hearing that he asked Bey whether he had a gun, to which Bey responded, “It's in my waistband” (the “First Statement”), this alleged Statement was not memorialized in any written record. Powell first disclosed it during a meeting with the U.S. Attorney and an FBI agent in December 2016 - over eight months after Bey's arrest.[6] The arrest memo, which was entered into evidence at the suppression hearing, does not include anything reflecting this alleged Statement. In relevant part, it states:

         Police ordered the male to stop and show his hands to police. Police had their weapons drawn because of the nature of the job, a person with a gun. The male complied by dropping to the ground as ordered by police. Police conducted a safety frisk of the male, at that time police recovered a black in color tenifer finished Glock 37 .45 ACP handgun from his front waistband.

         At a preliminary hearing on state charges in the Philadelphia Court of Common Pleas, Powell, testifying on direct examination about Bey's arrest, stated as follows:

COUNSEL: Officer, did you recover anything from the defendant that evening?
POWELL: I did.
COUNSEL: What did you recover from him?
POWELL: A black and tenifer in color Glock .45 ACP caliber handgun. With permission to refer, Serial Number KZH962, loaded with one chamber round and eight additional ...

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