United States District Court, W.D. Pennsylvania
Barry Fischer Senior U.S. District Judge.
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
 is denied.
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
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).
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).
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).
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.).
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).
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).
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
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.” (Govt. Ex. 1).
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. §