United States District Court, W.D. Pennsylvania
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Flowers Conti Chief United States District Judge.
Andrew Jones (“Jones”) filed a motion to suppress
evidence (ECF No. 33). The government filed a response in
opposition to the motion. On January 5, 2017, the court held
an evidentiary hearing. The parties were permitted to file
proposed findings of fact and conclusions of law. The parties
filed those post-hearing submissions on March 1, 2017. The
motion is ripe for disposition.
Factual and Procedural Background
is charged in a one-count indictment at Criminal Number 16-27
with possession of a firearm and ammunition by a convicted
felon on January 31, 2016, in violation of 18 U.S.C.
§922 (g) (1). In his suppression motion, Jones argues
that law enforcement agents violated his Fourth Amendment
rights by subjecting him to an unlawful traffic stop without
reasonable suspicion. Jones argues that his subsequent arrest
was without probable cause and did not fall within any
exception to the Fourth Amendment's warrant requirement.
Jones claims, therefore, that the search of his vehicle was
not incident to a legal arrest. He seeks to suppress evidence
gathered during the search of the vehicle, in particular, the
firearm that officers recovered from the vehicle. Jones'
motion also sought to suppress any statements made by him as
fruits of the illegal arrest, but counsel clarified that he
was challenging only the stop and search of the vehicle.
(Transcript, ECF No. 55 at 12).
Jones and Pittsburgh Police Officer Gino Macioce
(“Macioce”) testified at the hearing. Other than
with respect to testimony about Jones' leaning in an
effort to conceal something, Macioce offered credible
testimony regarding the events that transpired on the evening
of January 31, 2016. Jones testified credibly regarding his
temporary use of the vehicle. The government submitted two
exhibits, a dashboard camera (“dashcam”) video of
the encounter (Govt. Ex. 1) and four reports prepared by
officers after the incident (Govt. Ex. 2).
Jones obtained permission to borrow his cousin's vehicle
to drive to his girlfriend's house approximately four or
five hours before the incident. (T. 18). He had not
previously borrowed the car. (T. 18).
the night of January 31, 2016, Macioce and his partner Robert
Connors (“Connors”) were patrolling the Zone 5
area of Pittsburgh, Pennsylvania, near the 7300 block of
Bennett Street in Homewood in a marked police vehicle. (T.
Around 2:50 a.m., the officers observed a silver Nissan
Altima stop at a stop sign, proceed, and
“abruptly” stop again mid-block. (T. 26, 35).
driver accelerated at an unusually high rate of speed,
seemingly exceeding the 25 miles per hour limit. (T. 35).
Macioce observed the vehicle cross the double center line
“two to three times” for “two to three
seconds at a time, ” almost striking an oncoming
vehicle. (T. 26). He also observed that the vehicle abruptly
started and stopped and was not smoothly driven. (T. 26). The
vehicle did not maintain a safe distance from the car in
front of it. (T. 27). Most of these violations were not
captured on the dashcam video, which only began recording
thirty seconds prior to activating the lights, which was a
standard function of the software. (T. 26-28).
the officers continued to follow the vehicle, they observed
that the center brake light was inoperable (T. 26).
Macioce believed at the time that the inoperable center brake
light was a violation of the general lighting requirements of
the Pennsylvania Motor Vehicle Code. (T. 27, 31).
According to Macioce, the “very quick braking, ”
the “very quick accelerating, ” the
“swaying and going over the line, ” suggested,
cumulatively, that the driver was possibly intoxicated. (T.
officers activated the police lights when the vehicle driven
by Jones and another vehicle pulled into the parking lot of
the Greater Pittsburgh Coliseum. (T. 33-34).
Macioce testified that he observed Jones lean over toward the
right side of the vehicle, which he interpreted as an act of
concealment. (T. 34, 38). The “lean” is not
visible on the dashcam video and the court in not able to
credit the testimony of Macioce with respect to the lean. In
light of the observations about the erratic driving and the
vehicle being turned by Jones into a parking lot, the court
concludes that Macioce had a mistaken belief about observing
the lean. Under the circumstances, the court does not
consider his testimony about that belief to be a deliberate
falsehood and will not consider that the mistake tainted his
After the two cars parked, Macioce approached the passenger
side of the vehicle driven by Jones with a flashlight in hand
and his gun in the holster. (T. 38-39).
Connors simultaneously approached the driver's side of
the vehicle with his gun in the holster. (T.
When Macioce illuminated the backseat of the vehicle with his
flashlight, he saw a gun on the floorboard, directly behind
the passenger seat. (T. 38-39, dashcam video).
Immediately thereafter, Macioce can be heard on the dashcam
video exclaiming, “gun, gun.” Both officers drew
their weapons and ordered Jones to remain in place. (T. 39,
Jones was ordered to keep his hands on the steering wheel and
to step slowly out of the vehicle while showing his hands.
officers handcuffed Jones and frisked his person. (dashcam
Jones informed the officers that the car he was driving was
his cousin's vehicle. (T. 18). The officers contacted the
vehicle's owner, who confirmed that Jones had permission
to drive it. (T. 49, dashcam video).
Officers retrieved a firearm from the floorboard behind the
passenger seat. (T.39, dashcam video).
Officers checked Jones' identification and informed him
they were going to investigate the ...