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United States v. Burrus

United States District Court, W.D. Pennsylvania

August 29, 2019

UNITED STATES OF AMERICA,
v.
CHRISTIAN BURRUS, Defendant.

          MEMORANDUM OPINION

          Nora Barry Fischer Senior U.S. District Judge.

         I. INTRODUCTION

         In this case, Defendant Christian Burrus is charged with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Docket No. 1). The charge arises from a traffic stop of a vehicle in which he was a passenger on July 23, 2018 in Penn Hills. Presently before the Court is a motion to suppress evidence filed by Defendant and the Government's opposition thereto. (Docket Nos. 29; 30; 33; 35; 38). The Court held a suppression hearing on May 8, 2019, the official transcript of which was filed on June 7, 2019. (Docket Nos. 40; 41). The parties submitted post-hearing proposed findings of fact and conclusions of law on July 15, 2019 and responses to same on July 29, 2019. (Docket Nos. 45-48). After careful consideration of all of the parties' filings and the credible evidence of record, and for the following reasons, Defendant's Motion to Suppress [29] is denied.

         II. BACKGROUND

         A. Factual Findings

         At the hearing, the Government presented the testimony of Penn Hills Police Department Officer Dustin Hess and introduced two exhibits, i.e., the dash camera video of the traffic stop and Officer Hess' police report documenting the events. (Docket No. 42; Govt. Exs. 1; 2). Defendant did not call any witnesses nor admit any exhibits but conducted thorough cross- examination of the Government's witness. (See id.). In this Court's estimation, based on his demeanor and testimony in response to the questioning of the attorneys and the Court at the suppression hearing, Officer Hess provided credible testimony as to the events in question, despite efforts at impeachment. See United States v. Garcia, 521 Fed.Appx. 71, 73 (3d Cir. 2013) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985)) (“‘[w]hen findings are based on determinations regarding the credibility of witnesses ... for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said.'”). He also presented as an experienced law enforcement officer.

         In this regard, Officer Hess earned a bachelor's degree in criminal justice from Point Park, graduated from the policy academy and has approximately eight years of experience in law enforcement. (Docket No. 42 at 4-5). Prior to joining the Penn Hills police force four years ago, he worked as a police officer for West Homestead Borough and the University of Pittsburgh. (Id. at 4-6). Officer Hess has received considerable training on topics such as: high risk vehicle stops, officer safety, traffic patrol drug interdiction and street survival. (Id.). He has also participated in hundreds of traffic stops during the course of his career. (Id. at 6).

         On the warm, sunny afternoon of July 23, 2018, Officer Hess was on a routine traffic patrol in Penn Hills, observing traffic from a BP gas station at the intersection of Frankstown Road and Robinson Boulevard. (Docket No. 42 at 4, 6, 27, 36). He described that location as a high crime area, although no data or statistics were admitted into the record to confirm his testimony. (Id. at 7, 41). As part of his traffic patrol duties, Officer Hess often checks license plate numbers for proper registration in the National Crime Information Center (“NCIC”) database which is accessible from a computer in his police vehicle. (Id. at 7-8). He ran such a check on a blue Nissan Maxima with license plate number JPJ-7902 that he observed driving east on Frankstown Road past his location at the gas station. (Id.). The results of the NCIC query included that: the vehicle's registration was expired; the vehicle was owned by Daquela Donald; and Ms. Donald's driver's license was suspended. (Id. at 8).

         As can be seen and heard on the dash cam video, (Govt. Ex. 2), Officer Hess proceeded to follow the blue Maxima, which had turned right from Frankstown Road onto Graham Boulevard, an unmarked, two-way brick covered road. (Docket No. 42 at 10). After pursuing the vehicle for a short period of time, Officer Hess conducted a traffic stop at 4:05 p.m., and the vehicle pulled over without incident near the intersection of Graham Boulevard and Royal Avenue. (Id. at 13-14). Officer Hess contacted dispatch to inform them that he was making a traffic stop of the vehicle and to provide his location for safety reasons in the event that the encounter “would turn south very quickly, at least everybody would know where I'm at.” (Id. at 9-10). Officer Hess was outnumbered as the vehicle had three occupants: a female driver; a male in the front passenger seat; and a female in the rear driver's side seat. (Id. at 10). The male passenger, who turned out to be the Defendant, was significantly larger than him as well. (Id. at 19, 39, 41). Aside from the registration violation and potentially a driver with a suspended license, Officer Hess had no additional information that any of the occupants had been involved in any other type of criminal activity when he pulled the vehicle over. (Id. at 25-26, 42). However, he explained that he follows routine protocol for officer safety in situations where he is outnumbered by gathering identification information about the vehicle's occupants so that he can run their information through NCIC and knows “who he is dealing with.” (Id. at 11, 39).

         Officer Hess approached the driver's side of the vehicle and spoke briefly with the driver and the other occupants. (Docket No. 42 at 10). He initially asked the driver if she had identification, she responded that she did not. (Id.). She identified herself as Daquela Donald and acknowledged that: the vehicle's registration was expired and her license was suspended. (Id.). She also could not produce any documents including the registration, a license or identification card or an insurance certificate. (Id.). Officer Hess asked if anyone in the car had identification and upon hearing no answer, he took out his memo pad and pen and asked for the passengers' names. (Govt. Ex. 2). The male passenger told the officer that his name was Christian Burrus and provided his date of birth. (Docket No. 42 at 11-13, 29). The female passenger advised that her name was Tomieka Maddox. (Id. at 13). The driver told Officer Hess that someone would come pick up the vehicle; he thanked her for being honest; and told her he would try to cut her a break on the citations. (Id. at 27; Govt. Ex. 2). After gathering this information, Officer Hess returned to his police cruiser. (Id.).

         Officer Hess testified that he recognized Defendant upon approaching the vehicle because he recalled that a wanted poster with his name and photograph was posted in the police station assembly room indicating that a warrant for his arrest was pending at one time. (Docket No. 42 at 11-13, 38). He remembered that narcotics detectives were involved in posting the photograph and believed that he had been wanted for a firearm or narcotics charge. (Id. at 12). Officer Hess could not recall specifically when he saw the poster but believed that it had been taken down approximately one year prior to the stop. (Id. at 32). Officer Hess further explained that he observed that Defendant would not make eye contact with him; was sweating profusely; and was acting nervously. (Id. at 11-12). Indeed, Officer Hess stated that he had “never seen a passenger that nervous during a traffic stop.” (Id. at 11-12). Defendant's actions led Officer Hess to conclude that “criminal activity may be afoot” but he did not have information about any specific crimes he may have committed. (Id. at 33).

         When he returned to his vehicle, Officer Hess ran the NCIC check on the Defendant which revealed that he had an active warrant for his arrest for a probation violation as well as a suspended driver's license. (Docket No. 42 at 16-17). A backup K9 unit arrived. (Id. at 19). Officer Hess is heard commenting to Officer Klobucher that the Defendant was nervous and that he remembered him. (Govt. Ex. 2). Officer Hess confirmed that the warrant was active by calling dispatch. (Docket No. 42 at 19-20). After confirming the warrant, Officer Hess had an obligation to arrest Defendant and he did not run the information on the other occupants of the vehicle at that time. (Id.). This entire process took approximately two and a half minutes, at which time Defendant, Ms. Donald and Ms. Maddox remained in the vehicle. (Govt. Ex. 2 at 4:20 to 7:01).

         Officer Hess moved quickly to effectuate Defendant's arrest while Officer Klobucher and the K9 remained near the rear of the vehicle. (Govt. Ex. 2). Officer Hess returned to the driver's side window, told Ms. Donald that he confirmed her license was suspended, and directed her to turn off the vehicle and hand him the keys, which she did. (Docket No. 42 at 20). He asked the occupants if they had anything illegal on them but did not receive a response. (Id. at 21). Officer Hess then moved to the passenger side window and questioned Defendant if had any weapons on him. (Id.). After Defendant did not respond, Officer Hess directed him to step out of the vehicle. (Id.). Defendant complied. (Id.). Officer Hess placed handcuffs on Defendant and conducted a pat down search, which revealed that Defendant was in possession of a firearm in his waistband. (Id. at 22-23). He discovered the firearm at approximately 4:12 p.m. or only seven minutes after initiating the traffic stop of the vehicle. (Id. at 38).

         After Defendant and the firearm were secured, Officer Hess returned to his vehicle to complete his duties relative to the traffic stop. (Docket No. 42 at 38-40). He ran an NCIC check on Ms. Maddox and learned that she also had a suspended license. (Id. at 17-18, 38). He then waited near the vehicle until Ms. Donald's grandmother arrived on the scene to drive the vehicle away. (Id. at 40). Officer Hess gave Ms. Donald a verbal warning and released her from the scene. (Id. at 41). While transporting Defendant to the police station, he made comments to himself which were overheard by Officer Hess and recorded, i.e., “So fuckin stupid. All for $150” and “the middle man always gets fucked.”[1] (Govt. Ex. 1).

         Officer Hess' subsequent investigation revealed all of the following: the firearm was stolen out of North Strabane Township; Defendant has a prior conviction for manufacture, delivery or possession with intent to deliver a controlled substance such that he was not authorized to possess a firearm; and Defendant did not have a license to possess a firearm. (Govt. Ex. 1). Defendant was charged with two felony violations of the Uniform Firearms Act and one felony count of receiving stolen property. (Id.). Ultimately, those state charges were nolle prossed in favor of this federal prosecution alleging a violation of 18 U.S.C. § 922(g)(1).

         B. Relevant ...


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