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United States v. Cox

United States District Court, E.D. Pennsylvania

June 2, 2017

UNITED STATES OF AMERICA
v.
HAROLD COX

          MEMORANDUM

          R. BARCLAY SURRICK, J.

         Presently before the Court is Defendant Harold Cox's Motion to Suppress Physical Evidence and Statements. (ECF No. 20.) For the following reasons, Defendant's Motion will be granted.

         I. BACKGROUND

         Defendant Harold Cox has been charged with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Indictment, ECF No. 1.) The firearm that serves as the basis for this charge was located by two Pennsylvania State Troopers in the trunk of Defendant's car during a traffic stop. Defendant seeks to suppress the firearm and statements that he made to the State Troopers after the firearm was seized. Defendant contends that the Troopers lacked a reasonable suspicion to stop him for a traffic violation, and also lacked a reasonable suspicion to detain Defendant beyond the time necessary to investigate the alleged traffic infractions.[1] After a review of all of the evidence and testimony, we conclude that although the State Troopers' decision to initiate a traffic stop of Defendant's vehicle may have been lawful, the State Troopers' detention of Defendant for an extended period of time beyond the investigation of the alleged traffic violations violated Defendant's Fourth Amendment rights. As a result, any evidence obtained during the traffic stop, including items obtained during the search of the vehicle, as well as statements obtained from Defendant, will be suppressed.

         A. Procedural History

         On January 17, 2017, a grand jury returned an Indictment, charging Defendant with possession of a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

         On April 18, 2017, Defendant filed this Motion to Suppress Physical Evidence and Statements. (Def.'s Mot., ECF No. 20.) Attached as Exhibit A to the Motion to Suppress is a DVD containing a video recording of the July 23, 2016 traffic stop, vehicle search, and arrest. (Video, Def's Mot. Ex. A.) On May 4, 2017, the Government filed a Response in Opposition to Defendant's Motion to Suppress. (Gov't's Resp., ECF No. 24.) On May 8, 2017, Defendant filed a Reply. (Def.'s Reply, ECF No. 27.)

         A suppression hearing was held on May 9, 2017. (See May 9, 2017 Hr'g Tr. (on file with Court).) During the hearing, the Government presented the testimony of Pennsylvania State Troopers Jeffrey Smith and Mark Salerno, who initiated the traffic stop, and subsequently detained and arrested of Defendant. The Government also presented the testimony of Philadelphia Police Officer Kenneth Kustra, who, together with his canine partner, Riky, a Philadelphia police dog, conducted a canine search of Defendant's vehicle. Finally, the Government presented the testimony of Philadelphia Police Officer James Zimmerman, who assisted in the training of the police dog Riky, and the canine handler, Officer Kustra. Defendant presented the testimony of expert witness Steven Nicely, who testified about the training of police dogs and handlers generally, and offered an opinion about the canine narcotics search that occurred on Defendant's vehicle.

         B. Findings of Fact

         At approximately 12:25 p.m. on June 23, 2016, Pennsylvania State Troopers Jeffrey Smith and Mark Salerno were patrolling in a marked police cruiser. (May 9 Hr'g Tr. 10-12.) They were in their State Police uniforms. (Id. at 11-12.) Instead of being assigned to patrol a particular zone or sector such as I-95, the Troopers had been given “shield responsibilities” on that day, which means they had no specific assignment. (Id. at 10.) Trooper Smith has been with the Pennsylvania State Police for approximately five years. (Id. at 5.) Prior to that, he served with the Philadelphia Police Department for approximately nine years. (Id. at 5-6.) As a state trooper, he received training that focused on interdiction during the course of traffic stops. (Id. at 8.) Trooper Salerno has been a state trooper for four years. (Id. at 212.) He received training on interdiction and detection of criminality while making a car stop. (Id. at 213.)

         Troopers Smith and Salerno were driving northbound on I-95 in the area of mile marker 12, when they observed a grey Pontiac Grand Prix also traveling north, with three African-American occupants. (Police Report, Def.'s Mot. Ex. D.) The Troopers observed the Pontiac cross three lanes of traffic in one continuous action, heading towards the exit for Island Avenue. (May 9 Hr'g Tr. 12-13; Police Report.) The Pontiac was being driven by Defendant Harold Cox. (May 9 Hr'g Tr. 13; Police Report.) The right turn signal of the Pontiac was activated when it crossed the lanes, and the movement did not cause any nearby drivers to beep their horns, or to apply their brakes. (May 9 Hr'g Tr. 13, 218.) As Defendant's vehicle exited the Island Avenue Exit, State Troopers Smith and Salerno began to follow behind the vehicle. (Id.) The State Troopers noticed that the right turn signal on the Pontiac remained on while driving on the exit ramp, and did not turn off until Defendant moved to the left lane of Island Avenue. (Id.) At this time, Defendant used the left turn signal. (Id.) The State Troopers also noticed that the driver's side brake light was “much dimmer” than the brake light on the passenger side. (Id.; Police Report.)

         The State Troopers initiated a traffic stop by turning on their sirens and flashing lights as the Pontiac approached the intersection of Island Avenue and Bartram Avenue. (May 9 Hr'g Tr. 13.) Defendant immediately pulled his Pontiac over in response to the sirens and flashing lights. (Id. at 217.) Trooper Smith used the microphone on the police car to direct Defendant to turn right onto Bartram Avenue, as it was a safer location for a traffic stop. (Id. at 13-14.) Defendant complied with the Troopers' command. (Id. at 14.) Trooper Smith testified that he believed Defendant's act of crossing three lanes of traffic violated two separate provisions of Pennsylvania's Motor Vehicle Code: Section 3334, which requires that vehicles switch lanes with “reasonable safety”; and Section 3714, which prohibits “careless driving.” (Id.); see 75 Pa. Cons. Stat. Ann. §§ 3334(a), 3714(a). Trooper Smith also determined that Defendant's act of leaving the turn signal activated after exiting the off-ramp violated Section 3334 of Pennsylvania's Motor Vehicle Code, which states that “[t]urn signals shall be discontinued immediately after completing the turn or movement from one traffic lane to another traffic lane.” (May 9 Hr'g Tr. 14-15); see 75 Pa. Cons. Stat. Ann. § 3334(d).

         Trooper Smith exited the police cruiser and approached Defendant's vehicle on the passenger side. (May 9 Hr'g Tr. 15; Video at 1:53, Def.'s Mot. Ex. A.)[2] Approximately twenty seconds later, Trooper Salerno approached the Pontiac on the driver's side and looked through the back window. (Video at 2:15.) Defendant Cox was in the driver's seat. (May 9 Hr'g Tr. 15.) Thomas Finks was in the front passenger's seat, and Ricky Jones, Jr. was in the back seat. (Police Report.) Trooper Smith remained at the front passenger side window of the Pontiac for less than one minute. (May 9 Hr'g Tr. 219.) During this time, Trooper Smith and Defendant spoke briefly, and Defendant handed Trooper Smith his license, registration and insurance card. (Id.) Trooper Smith testified that as he looked across the front seat of the Pontiac from the passenger's side, Defendant, who was in the driver's seat, appeared to be nervous. (May 9 Hr'g. Tr. 15.) Specifically, Trooper Smith testified that Defendant's hands were shaking, and that his “breathing was very shallow, as if he had been running.” (Id. at 15-16.) In addition, Trooper Smith testified: “I also noticed on his left side his shirt was moving rapidly in the area of his heart, which indicated to me that his heart was racing.” (Id. at 16.) Trooper Smith stated that Defendant appeared as though he was going to vomit. (Id.) Trooper Smith asked Defendant to step outside of his vehicle. (Id.)

         Trooper Smith believed that Defendant may have grabbed a weapon because he was taking too long to exit the vehicle. (Id.) Trooper Smith walked to the driver's side of the vehicle to make sure that Defendant did not have any weapons in his hands, and confirmed that he did not. (Id.) Trooper Smith thought that Defendant seemed agitated when he got out of the vehicle. Defendant told Trooper Smith that he was a working man and asked why he was being stopped. (Id.) Trooper Smith and Defendant had a discussion near the trunk of the Pontiac about the traffic violations the Troopers observed. (Id. at 17-18.) Trooper Smith stated that Defendant appeared nervous and uncomfortable. (Id. at 18 (noting that Defendant was moving around and fidgeting).) A review of the video shows that Defendant can be observed using his hands to explain things to Trooper Smith during the conversation. (Video at ...


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