United States District Court, E.D. Pennsylvania
BARCLAY SURRICK, J.
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
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. 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
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).
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.)
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
Findings of Fact
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.)
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.)
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).
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.
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.)
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