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United States v. Palmer

United States District Court, E.D. Pennsylvania

April 7, 2017

UNITED STATES OF AMERICA
v.
DEION PALMER

          MEMORANDUM

          Gerald Austin McHugh United States District Judge

         Defendant Deion Palmer has been charged with illegal possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He now moves to suppress the weapons on which this charge is based, arguing that they were obtained by means of an illegal seizure. For the reasons below, Palmer's Motion to Suppress is denied.

         On May 17, 2016, Officer Domico of the Philadelphia Police Department's Narcotics Field Unit received a series of text messages from a confidential informant notifying him that Palmer was driving a black, two-door Honda and carrying a gun. The informant, who had worked with Domico in the past and had a track record of providing reliable information, also supplied Domico with the Honda's approximate location and license plate number. On the afternoon of the following day, Domico found the black Honda parked on the 2900 block of Rosehill Street, observed the car's dark tinted windows, and passed his informant's tip along to officers in the area. At this time, Domico also shared with his fellow officers pictures of Palmer, the car, and its license plate.

         At 6:00 p.m. that evening, Officers Gorman and Blaszczyk started their shift. Acting on the tip relayed by Domico, they drove to the 2900 block of Rosehill where they found the black Honda parked on the street. Like Domico, Gorman and Blaszczyk observed that the Honda had dark tinted windows-an apparent violation of Pennsylvania's Motor Vehicle Code. 75 Pa. Stat. Ann. § 4524. With Palmer nowhere to be seen, the officers continued on their rounds.

         Sometime after 9:00 p.m., Gorman and Blaszczyk returned to the 2900 block of Rosehill where they found the Honda still parked on the street, but now with Palmer standing outside. The officers drove a short distance, parked their car, and waited. Gorman and Blaszczyk soon observed what they believed to be the Honda traveling north, away from the 2900 block of Rosehill. They tailed the car as it turned east on Clearfield Street, eventually getting close enough to confirm the license plate number and to observe again that the windows on the car were heavily tinted. At this point, the officers activated their lights signaling for the driver to pull over.

         Palmer, who was behind the wheel, reacted by stopping the car. But seconds later, before the officers could get out of their vehicle or even put it in park, he accelerated and drove at a high rate of speed down several small residential streets. Blaszczyk and Gorman pursued Palmer, who ignored stop signs, struck poles and parked cars, and eventually came to a stop behind a double-parked vehicle on the 200 block of Mayfield Street. According to Blaszczyk and Gorman, Palmer then threw two dark objects out of the passenger window and took off on foot. Blaszczyk gave chase while Gorman recovered the objects, which proved to be two loaded handguns. Palmer was apprehended a short time later.

         Palmer argues that Gorman and Blaszczyk lacked reasonable suspicion for pulling him over and moves to suppress the handguns recovered by Gorman. He advances a complex analysis of the definition of “seizure” under the Fourth Amendment in an attempt to undercut the legality of the initial stop. The government advances three separate positions in opposition to the motion: 1) that Palmer was not “seized” for Fourth Amendment purposes until he was physically apprehended, after officers observed him throwing the weapons out the window; 2) that the tinted windows on the vehicle provided the basis for a legitimate “pretextual” vehicle stop; and 3) that the officers had reasonable suspicion to make the stop based on the information obtained from the confidential informant. Because I find that all three of the government's positions provide independent justification for the stop in question, Palmer's motion will be denied.

         I. Because Palmer did not submit to police authority when he briefly pulled over to the side of the road, no Fourth Amendment seizure took place.

         In determining whether evidence was obtained pursuant to a lawful seizure, the threshold question is when the seizure occurred. In California v. Hodari D., the Supreme Court explained that a seizure occurs when there is either an application of physical force to restrain movement, or submission to a show of authority. 499 U.S. 621 (1991). Palmer maintains that Gorman and Blaszczyk's initial attempt to pull him over constituted a show of authority and that he was seized when he submitted to this show of authority by momentarily stopping the car.[1]

         Palmer's legal argument rests on United States v. Brown, 448 F.3d 239 (3d Cir. 2006). There, police officers stopped two men in the vicinity of a recent robbery. After informing them that the robbery victim was en route and that they would be free to go if they were not identified as the assailants, one of the officers demanded that the men, one of whom was Kareem Brown, submit to a pat-down search. Brown initially complied by placing his hands on a police car, but almost immediately after the officer began to frisk him, Brown attempted to break away. The officer placed Brown in hand-cuffs, completed his search, and recovered a handgun. Brown later moved to suppress the gun as the fruit of an illegal seizure. The government claimed that Brown's actions did not manifest submission to a show of authority, but the Third Circuit disagreed. Palmer now cites Brown for the proposition that he submitted to authority when he pulled his car over for a period of seconds before leading officers on a high-speed chase, and that the evidence must be suppressed unless there was a lawful basis for the initial stop.

         Palmer's position, however, cannot be reconciled with the Third Circuit's decision in United States v. Smith, 575 F.3d 308 (3d Cir. 2009). In that case, two officers on late-night patrol stopped a pedestrian, Thomas Smith, and ordered him to place his hands on the hood of their squad car. Smith then “took two steps toward the vehicle, at which point one or both of the officers began to open their car doors. At the sound of the car door opening, Smith turned and ran. . . . [B]oth officers were still in the vehicle[.]” 575 F.3d at 311. The controlling question was whether Smith had been seized when he took two steps towards the police officers. The court concluded that although the police officers had made a show of authority when they ordered Smith to place his hands on the car, Smith's reaction to that order did not manifest submission to the police officers' show of authority. Id. at 316. In reaching this conclusion, the court distinguished Brown. In Brown, the court noted, police had taken two actions that constituted a show of authority. First was the officer's “statement to Brown and his friend that a robbery victim was being brought over to identify them as possible suspects and, if they were not identified, they would be free to go-necessarily implying that they were not free to leave.” Id. at 315 (quoting Brown, 448 F.3d 245). Second, “the officer also made a show of authority when he demanded to pat down Brown.” Id. According to the Smith court, the linchpin in Brown was not the suspect's brief submission to the second show of authority, as Palmer argues. Rather, it was the his initial compliance with the order to stay put until the robbery victim arrived on the scene: “While the moment that Brown turned to face the car was the first physical contact between the officer and the defendant, Brown already had submitted by following the officer's order to stay put. In other words, his submission by that point was manifest.” Id.

         I credit the testimony of Gorman and Blaszczyk that Palmer briefly pulled over, but sped away before they could approach. Accordingly, Smith, not Brown, controls this case. Like Smith, this case concerns a single show of authority: Gorman and Blaszczyk's attempt to pull over the black Honda by activating their flashing lights. Like Smith, the only arguable submission to authority lasted a matter of seconds and was quickly abandoned. Smith makes clear that such “momentary compliance [is] not enough to trigger a seizure under Hodari D.Id.; see also United States v. Valentine, 232 F.3d 350 (3d Cir. 2000) (suspect who stopped and identified himself in response to police command was not seized).[2] I therefore find that Palmer was not seized when he briefly pulled over and that the weapons that Officer Gorman recovered at the end of the chase were not the fruit of an unconstitutional seizure.

         II. The officers conducting surveillance had a good faith basis to believe that the degree of tint on the Honda's windows violated the Pennsylvania Motor Vehicle Code.

         Even if I accepted Palmer's position that he was “seized” the moment he pulled over, I find that the officers' initial attempt to pull Palmer over was justified by virtue of his heavily tinted windows. While the Fourth Amendment generally requires the government to obtain a warrant based on probable cause before effectuating a seizure, a “well-established” exception to the general rule “permits an officer to conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” United States v. Lewis, 672 F.3d 232, 237 (3d Cir. 2012). In the automobile context, the Supreme Court has “established a bright-line rule that any technical violation of a traffic code legitimizes a stop, even if the stop is merely pretext for an investigation of some other crime.” United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006). For a traffic ...


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