MARK R. HORNAK, District Judge.
On October 8, 2013, a federal grand jury indicted the Defendant, Atiba Warren, for possessing a firearm as a convicted felon. ECF No. 1. The charge arose out of a series of events which occurred on October 23, 2012 at 520 Lincoln Avenue in Pittsburgh ("Residence"). Mr. Warren has filed a Motion to Suppress Evidence. ECF No. 42. Based on this Court's review of the Motion, along with all filings in support and in opposition thereto, ECF Nos. 46; 78; 81; 82; 87; 88, the evidentiary hearing and oral argument conducted in open Court on March 3, 2015, ECF No. 73, and for the reasons set forth below, Defendant's Motion will be DENIED.
As an initial matter, the Court finds and concludes
Testifying at the evidentiary hearing held on March 3, 2015 for the United States were Steven Sywyj and Lance Hoyson, two Pittsburgh Police Officers involved in arresting Mr. Warren. Witnesses called on behalf of the Defendant were Ms. Estelle Hayes, Mr. Warren's landlord on the date in question, and Mr. Travis Johnson, who in his profession at a company specializing in creating three-dimensional models of architectural structures, created a "virtual model" of the layout of the Residence.
The Court initially observes that there did not appear to be any direct contradictions among the various fact witnesses' testimony. Rather, each fact witness offered a unique viewpoint dealing with specific events of the evening that largely did not overlap (or where they overlapped, they were not inconsistent with one another). The testimony of Mr. Johnson, the Defense's expert witness, was presented to cast doubt on some of the factual observations of Officer Sywyj (who had experienced the scene firsthand), using three-dimensional modeling and animations that attempted to mimic the spacing, depth, and lighting conditions as they existed on October 23, 2012 at around 10:30 p.m. The Court will review Mr. Johnson's testimony in greater detail below, but first will recount and assess the testimony of the three fact witnesses.
On the night of October 23, 2012, Steven Sywyj, a Police Officer with the Pittsburgh Police Department, responded to a call at 520 Lincoln Avenue based on a report that a man had been stabbed. Hr'g Tr. at 21:15-19. Upon Officer Sywyj's arrival at what he described as a "chaotic" scene,
According to Officer Sywyj, he stood at the "threshold of the [front] door," which was wide open,
At that point, Officer Sywyj drew his own firearm, shouted "gun" to the other officers on the scene, and ordered everyone from the Residence. Id. at 26:1-2; 27:11-12. Officer Sywyj testified that Mr. Warren then "disappeared from one doorway and re-emerged a second or two later from a doorway further to the right, sans gun." Id. at 27:13-16. Officer Sywyj ordered Mr. Warren from the Residence, entered the Residence himself, and recovered the gun from "under a magazine on a table" behind the wall in between the two doorways.
Officer Hoyson testified that the scenes at these types of police calls were normally chaotic, and that the scene at 520 Lincoln on October 23, 2012 was no exception. Id. at 45:8-9; 16-19. Officer Hoyson initially assisted medics in loading the stabbing victim into an ambulance and then remained on the scene to gather evidence about the stabbing. Id. at 46:5-10. He testified that he heard Officer Sywyj "alert other officers on scene that he saw someone with a gun inside the house." Id. at 46:12-14. Officer Sywyj then entered the Residence and ordered the occupants to go outside, while Officer Hoyson entered the Residence to "perform a protective sweep for any other occupants with Officer Sywyj." Id. at 46:16-18. Officer Hoyson testified that Officer Sywyj found the gun, and that he, Officer Hoyson, "could hear noises upstairs." Id. at 46:19. Believing people may still be upstairs, the Officers again ordered anyone in the Residence to exit. Id. at 46:19-22. Officer Hoyson and another officer then proceeded upstairs to find that a television set was turned on, which accounted for the noises heard from below. Id. at 46:23-47:1.
After realizing the noise had come from a television, Officer Hoyson left the Residence and joined Mr. Warren in the police car where he was detained. Id. at 47:3-4. Officer Hoyson testified that he "advised [Mr. Warren] of his Miranda rights, and interviewed him about the firearm." Id. at 47:4-5. Mr. Warren then made several statements, including that he bought the gun on the street with the serial numbers already filed off, and that he went and got his gun that night after hearing that his cousin had been stabbed. Id. at 47:6-15. On cross-examination, Officer Hoyson stated that he did not present Mr. Warren with any form informing him of his rights, but on redirect, he further explained that such forms are not typically carried by officers "on the streets." Id. at 47:20-48:6; 49:18-25.
Ms. Estelle Hayes has been a resident at 520 Lincoln Avenue since July of 2011, and was Mr. Warren's landlord at that address on October 23, 2012. Id. at 7:16-21; 8:5-11.
Ms. Hayes testified that on October 23, 2012, she retired to her bedroom at around 7:00 p.m. and that Mr. Warren was already upstairs in his bedroom at that time. Id. at 61:7-12. Later in the evening, Ms. Hayes heard Mr. Weathers calling out to her from downstairs, saying that her son had been stabbed. Id. at 61:17-20; 62:10-12.
Ms. Hayes also testified that her general routine when she retired in the evenings was to "check all the doors" and "turn off the lights," though she would leave both the porch light and a kitchen light over the stove on. Id. at 60:17-18. It was also part of her general routine to keep the windows covered, id. at 155:15-24; 157:10-12, and although the curtains she used were not "black-out curtains," id. at 158:3-4, they were also not see-through and light from street lights generally did not come in through the front window, id. at 158:18-159:8.
Ms. Hayes stated that on October 23, 2012, the main lights were off when she ran downstairs after hearing that her son had been stabbed. Id. at 68:1-3. However, she did not need to turn on a light when she went downstairs because the light coming from outside, including the police lights, made it bright enough to see. Id. at 68:4-13. Indeed, when counsel for the United States asked on cross-examination if it was "pretty bright in [Ms. Hayes's] house," Ms. Hayes responded, "Uh-huh." Id. at 68:8-9.
Mr. Travis Johnson has worked for seven (7) years at Cadnetics, a company which specializes in producing precision drawings and three-dimensional modeling of structures using a laser scanner
On December 19, 2014, Mr. Johnson visited 520 Lincoln Avenue and performed laser scans of the first floor interior and exterior of the Residence, which he then used to produce scaled models and animations of the residence. Id. at 91:5-92:25. Mr. Johnson used the measurements gathered and additional information provided by defense counsel to attempt to recreate the scene at the Residence as it was on October 23, 2012 at approximately 10:30 p.m. Id. at 99:10-19; 101:17-18. Among the exhibits introduced were animations showing the Residence from exterior to interior based on the viewpoint of a male whose line of sight would be approximately five-feet, six-inches off the ground. Def.'s Exs. E; F; Hr'g Tr. at 100:25-101:11. The exhibits include a rendering of an individual near the bottom of the staircase, which is information provided by defense counsel and is meant to represent the Defendant's position when Officer Sywyj saw him. Hr'g Tr. at 101:12-18. The difference between Exhibits E and F is that Exhibit E used lighting conditions from during the day, while Exhibit F was "created for the night scene." Id. at 102:2-9. For the night scene, Mr. Johnson testified that he applied various lighting sources based on "given information," attempting to account for various amounts of light emitted from the kitchen light Ms. Hayes leaves on, the porch light, and various other sources. Id. at 102:6-103:25. He also identified exhibits showing a birds-eye vantage point based on the models, which presumably replicate the scene at 10:30 p.m., and also show the scene as viewed from the front door looking toward the kitchen and include an individual who presumably represents Mr. Warren. Def.'s Exs. H-2-4; Hr'g Tr. at 107:5-15.
Cross-examination of Mr. Johnson focused on potential flaws in his process that could have thrown off the accuracy (and hence probative value) of his models of the scene, specifically with regard to the lighting and the research Mr. Johnson conducted to obtain that information, and also with regard to the information provided about where the person representing Mr. Warren was standing in the models. E.g., Hr'g Tr. at 113:15-16; 119:21-120:8; 121:13-122:18; 124:9-10. Notably, the models do not take into account lights from the police cars or flashlights on the scene (of which there were likely several, since there were roughly twelve (12) Officers present). Id. at 127:21-24.
Mr. Johnson also testified that in his conversation with defense counsel, they talked about Mr. Johnson's prospective that "the animation was not to prove what the person can or cannot see," but rather that it accurately reflects "what physics are" without being indicative of what any specific person could see at a specific point, because people's eyes adjust to lighting differently. Id. at 124:11-125:5. However, on redirect examination, Mr. Johnson then testified by way of his opinion that based on where the representative person in the model was standing, a person at the front door would not be able to see that person in his entirety given the lighting conditions at the time. Id. at 142:1-9.
Additionally, Mr. Johnson testified on cross-examination that the person in the diagram representing Mr. Warren was positioned based on "a point in that general area" (referring to the bottom of the staircase in the dining room) rather than a point closer to the front door as had been stated in the testimony of Officer Sywyj. Id. at 144:10-18. Mr. Johnson also testified that his model did not take into account any light that was coming through the window of the living room, id. at 145:11-16, although Ms. Hayes explained that her curtains were not "black-out curtains," id. at 158:3-4.
Searches performed without a warrant are presumptively unreasonable under the Fourth Amendment, and the United States bears the burden of proving the reasonableness of officer conduct under the circumstances. United States v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005). One well-known exception to the warrant requirement is the presence of probable cause
Even if exigent circumstances are present at some point during the course of events based on the need to protect officer safety, an exigency justifying a warrantless search may dissipate if, for instance, the search occurs after the premises has been secured and after a suspect has been arrested, as opposed to prior to securing the premises and prior to or contemporaneous with the arrest. United States v. Mallory, 765 F.3d 373, 386 (3d Cir. 2014).
The core issues with regard to Mr. Warren's Motion to Suppress are (1) whether exigent circumstances existed to justify Officer Sywyj's entry into the Residence and subsequent seizure of the firearm without a warrant, and (2) whether any exigency which existed at any point had dissipated by the time the search was actually conducted. With regard to the first issue, Mr. Warren's argument essentially boils down to an allegation (which he attempts to bolster through Mr. Johnson's testimony) that Officer Sywyj could not possibly have seen Mr. Warren inside the Residence with the firearm if he remained standing in the open doorway—he must have entered the Residence before seeing the gun. ECF No. 78, at 13-20. Mr. Warren attempts to undermine Officer Sywyj's credibility in a larger sense as well, alleging the existence of various inconsistencies and omissions in his testimony and report from the incident. Id. at 18-19.
In assessing Officer Sywyj's credibility, the Court considers the following factors:
United States v. Terry, No. 10-0029, 2010 WL 4639068, at *2 (W.D. Pa. Nov. 8, 2010) aff'd, 518 F. App'x 125 (3d Cir. 2013). The Court finds and concludes that taking all of these factors into account, Officer Sywyj was in the best position of any law enforcement officer on the scene to observe the scene—he responded to the stabbing, spoke to one of the witnesses (Mr. Weathers), and was positioned in the doorway of the Residence (keeping an eye on Mr. Weathers) when he saw Mr. Warren with the firearm. Officer Sywyj had four-plus years of experience with the Pittsburgh Bureau of Police at the time of the incident and had responded to various types of calls in the neighborhood ranging "from the mundane . . . to very violent crime." Hr'g Tr. at 19:10-21; 21:22-22:6. Officer Sywyj forthrightly admitted when he did not remember some details, such as whether the screen door was open or closed, but was unequivocal in his testimony as it related to the facts material to the Court's analysis. And although police officers might not be generally considered to be wholly disinterested in the outcome of a proceeding, the Court finds and concludes that Officer Sywyj's testimony did not contradict, and in fact lined up with, the accounts provided by Ms. Hayes and/or Officer Hoyson, who also testified. Of specific importance, the Court notes the consistency in Officer Sywyj's testimony that he could see Mr. Warren holding a gun from his position in the doorway and Ms. Hayes's testimony that she did not need to turn on a light when she went downstairs because the light coming from outside, including the police lights, made it bright enough to see. Id. at 68:1-13. In sum, though he described an incident that occurred over two and a half years ago, based on the consideration of his testimony in the context of all of the evidence, and the Court's personal observations and assessment of the witnesses and testimony in open Court, the Court finds Officer Sywyj credible and his factual account plausible. Given that, and the fact that no other fact witness or other evidence from the scene
This is true even considering Mr. Johnson's testimony and the accompanying Defense exhibits. The Court finds and concludes that the models and animations he created may indeed assist the trier-of-fact based on sufficient data and facts, in that they stem from facially reliable architectural and technological principles and methods consistent with the standards set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-92 (1993). The problem with regard to Mr. Johnson's testimony, both at the hearing and to this day, is whether those principles and methods actually apply to the facts of this case. In other words, do they "fit"? "Fit" is a central element to the Daubert standard applying Federal Rule of Evidence 702. In considering the tests laid out in Oddi v. Ford Motor Co., 234 F.3d 136, 146-47 (3d Cir. 2000), and In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 743-45 (3d Cir. 1994), the Court concludes that Mr. Johnson's testimony and the accompanying exhibits will be accepted into the record for purposes of the suppression hearing, and views the United States's objections to his testimony for these purposes as going principally to the weight they should be given, although its arguments also question whether his methods were reasonably reliable. Nonetheless, doing so gives the Defendant a pretty significant benefit of the doubt as to "fit," as noted and explained below. Should the United States seek to exclude that evidence at trial on Daubert grounds, the Court will readdress the issue at that time and the Court's consideration of that testimony here is not conclusive of its ultimate admissibility applying Federal Rules of Evidence 702 and 403.
Even with that more liberal evidentiary approach, however, the Court also concludes that Mr. Johnson's testimony and exhibits are of limited (if any) aid to the fact-finder (here, the Court) in determining what could or could not have been seen by Officer Sywyj on the night in question. Indeed, there are meaningful internal contradictions within Mr. Johnson's testimony. Compare Hr'g Tr. at 124:11-125:5 (explaining that the animation is not meant to take into account what could be seen) with id. at 142:1-9 (stating that the person represented in the animations could likely not be seen in his entirety by someone standing in the doorway). The animations and other exhibits simply do not obviate the testimony of both Officer Sywyj that he could see Mr. Warren holding the gun and Ms. Hayes that it was bright enough in her home as she ran downstairs such that she did not need to turn on any lights. Id. at 68:1-13.
As this is the case, the Court's overall conclusion is that Officer Sywyj acted reasonably and lawfully under the circumstances. The Court found him quite credible when he spoke of the relevant events, and the Defendant has not presented evidence to discredit that testimony, which placed Mr. Warren, carrying a firearm, within Officer Sywyj's line of sight from the front doorway. His reaction to this sighting given the surrounding circumstances was reasonable.
Turning to the second issue, Mr. Warren argues that since the Residence was actually empty after Officer Sywyj first ordered the occupants out, any exigent circumstances which arose when he saw the firearm had dissipated before the Officer entered the Residence and found the gun. ECF No. 78, at 19-20. On this point Mr. Warren explains that no one else was found in the Residence, "although a human voice on the top floor was actually that of an audible television set." Id. at 19. It is this point that the Court finds determinative as to that argument, though other factors also demonstrate the reasonableness of law enforcement's actions. Officer Hoyson testified that after the occupants of the Residence's first floor had exited, he and Officer Sywyj entered the Residence to secure it, and he heard noises from the second floor. Hr'g Tr. at 46:19. The Court concludes that when the Residence had not yet been secured, and an Officer downstairs heard noise coming from above, it was reasonable under the circumstances to believe that someone else may be in the Residence who could have access to the gun if the Officers waited to obtain a warrant before reentering. This view comports with case law in this Circuit. Compare United States v. Parrott, 450 F. App'x 228, 229-30 (3d Cir. 2011) (holding officers had probable cause and a reasonable basis to believe exigent circumstances existed after the defendant had been handcuffed but before the house had been secured when they recovered a weapon they had seen the defendant carrying) with Mallory, 765 F.3d at 388 (holding the exigency had dissipated once officers had secured the premises and apprehended the defendant, and noting that the case fell "just outside" the outer limit of the Fourth Amendment). Here, as in Parrott, the Officers had not yet secured the Residence to confirm that no one else was inside at the time when Officer Sywyj searched for and recovered the weapon.
The reasonableness of their actions is also bolstered by consideration of the other factors set out in Mallory. First, the search occurred immediately after Officer Sywyj saw a man with a weapon in the wake of responding to a violent crime with the victim having been removed from the porch of the Residence only shortly before. Second, both the stabbing (though not perpetrated by Mr. Warren) and possession of a weapon could be viewed as violent in nature. Third, the search occurred prior to Mr. Warren's arrest, although it was contemporaneous with his being essentially in the custody of law enforcement when he exited the Residence. Fourth, and most importantly in this Court's view, the search occurred before the premises had been secured and while it was objectively reasonable to believe unknown individuals remained in the Residence, presumably with access to the gun the Officer had just seen. The fifth and sixth factors tip in Mr. Warren's favor, as he did peacefully exit the Residence and did not threaten officers after his exit, and his family (or any individuals associated with him known to have been inside the Residence) similarly acted without aggression. The seventh factor pertaining to the ease with which a family member could access and use the firearm is a closer issue but relates to the fourth factor, as police did not at the moment know whether all occupants were out of the Residence
This situation is notably distinguishable from the facts as related in the Third Circuit's opinion in Mallory. In that case, officers saw a revolver on the defendant while speaking with him outside, and pursued him when he fled into a house. 765 F.3d at 377. Police searched for Mallory inside the home and also searched for the firearm. Id. The officers ordered everyone out of the house, and after searching the remainder of the house they came across the locked bathroom "which they had at first overlooked" and found Mallory inside. Id. at 377-78. They handcuffed the defendant inside the house and brought him through the first floor toward the front door. Id. at 378. As the officers were on their way out, someone checked behind the open front door and found the revolver under some umbrellas. Id.
The District Court held that exigent circumstances existed when officers first entered the house, and the Third Circuit noted that this fact was not disputed. Id. at 378, 383. However, both the District Court and the Third Circuit concluded that once the police had secured the defendant and house, those exigent circumstances had dissipated and the continued search for and seizure of the gun was unreasonable. Id. at 378, 388. Our Court of Appeals found it important that "[b]y the time Officer Hough searched behind the door and under an umbrella to find the gun, the police had secured Mallory, the family, and the home, and were in control of the situation." Id. at 386. "The house had been thoroughly swept and there were no persons left unaccounted for who might attack the officers by surprise." Id. at 387. Regardless of whether the police were in control of the first emergency situation for which they were called to the scene (the stabbing), the Court also finds and concludes that at the moment Officer Sywyj saw Mr. Warren with the gun, a new exigency existed. That exigency must be viewed in the context of all of the circumstances faced by the Officers and those circumstances included that a stabbing had taken place, no suspect was then in custody, officers did not know whether the Residence was completely secured, and there were other ways into and out of the Residence other than the door that they monitored. As the Court emphasized above, the reasonable belief that others remained in the Residence justified a continued search even after Mr. Warren had left the Residence.
To sum up, although Mr. Warren appropriately identifies some similarities between this case and Mallory, in that neither defendant was armed or posed a danger to others at the time the weapon was found, and he emphasizes that he "peacefully departed from the home, remained orderly outside amidst the police presence, and offered no resistance upon a later decision to arrest him," two stark differences between Mallory and this case remain: police had not yet secured the Residence in this instance, while that task had been completed prior to recovering the weapon in Mallory, ECF No. 78, at 19-20, and unlike the situation in Mallory, the Officer here saw the gun both in an occupant's hand and then in plain view. Mr. Warren admits that a television set was turned on upstairs, id. at 19, which is consistent with Officer Hoyson's testimony that he heard noises in the Residence. Granted, as it turned out, there was in fact no one else in the Residence who might have access to the gun—but the Officers had to make a swift and reasonable determination based on the circumstances as they existed at the time. Marasco, 318 F.3d at 518. At the time, the Officers knew they were responding to a violent crime, that they saw someone inside with a gun, and when they entered the Residence they heard voice-like noises from upstairs. The Court concludes that it was reasonable for them to believe that someone else might be present in the Residence and that a gun was just seen but had not yet been located and secured, all of which justified a warrantless search for any other people and for the firearm. While this would be a much closer call if the premises had been secured prior to the recovery of the weapon, as was the case in Mallory, in this "chaotic" aftermath of a violent crime when a suspect had not been apprehended, the investigation was very much ongoing, and the witness had just been permitted to enter the Residence, the Court concludes that this limited search of the Residence, and seizure of the firearm, was reasonable.
In his original Motion to Suppress, Mr. Warren made the point that "[t]he mere existence of a gun in one's home . . . is not of itself incriminating or indicative of an ongoing criminal activity." ECF No. 42, at ¶ 8(a). True enough. But when the Court examines the totality of the circumstances as they existed at the time, the Court finds and concludes that the Officers faced the following situation: (1) they were called to the scene of a violent crime and assisted medics on the front porch of a home after a man had been stabbed; (2) the scene was chaotic, with law enforcement, medics, residents of the home, and at least one other person (Mr. Weathers) on site; (3) Mr. Weathers, a witness to the stabbing, went inside the Residence to speak to family members, and Officer Sywyj watched these actions because he had not finished interviewing Mr. Weathers; and (4) Officer Sywyj then saw an individual holding a firearm at chest level inside the Residence. With the amount of police vehicles positioned outside (Officer Sywyj confirmed in his testimony that there were likely twelve (12) police officers at the scene, Hr'g Tr. at 36:21-25), the Court finds and concludes that it was reasonable for Officer Sywyj to believe that anyone in the Residence would know police were present, and that anyone openly carrying a firearm within the Residence was a potential threat. The Court concludes that Officer Sywyj acted objectively reasonably under the circumstances in ordering everyone out of the Residence, conducting a security sweep of it, and seizing the gun he had seen moments before.
Finally, Mr. Warren makes much of the United States's reference to the fact that the neighborhood in question was a "high-crime area" and argues that the Court should not give that factor disproportionate weight in applying the totality of the circumstances test. ECF No. 82, at 1-2. The Court agrees that the Fourth Amendment applies in every neighborhood. That said, the Court also concludes that regardless of the neighborhood involved, the police officers in this case were responding at night to the scene of a stabbing
Based on the foregoing findings of fact and applying the relevant law, the Court concludes that the search performed by the Officers at 520 Lincoln Avenue on October 23, 2012 was objectively reasonable under the exigent circumstances exception to the warrant requirement.
Because the Court concludes that both the search, and the seizure of the gun, were reasonable and lawful under the Fourth Amendment, Defendant's Motion is DENIED. Further, in light of this ruling, and Officer Hoyson's uncontroverted testimony that he "Mirandized" Mr. Warren after placing him in custody, the Motion as it pertains to suppression of post-arrest statements made by the Defendant is similarly DENIED.
Id. at 386.
As to the first point, the Court finds and concludes that the spot to which Officer Sywyj pointed in Court and the place he described first seeing Mr. Warren are consistent when reviewing the testimony in conjunction with the hearing Exhibits. Looking at Defendant's Exhibits A-5 and A-6, if the family members were positioned on the left side of the living room, from Officer Sywyj's viewpoint at the front door he undoubtedly could have seen Mr. Warren both "behind everybody, where everybody was," holding a firearm "at chest level," Hr'g Tr. at 25:22-24; 26:17-18, and "within a couple of feet of the archway" between the living room and dining room areas to the left of the fireplace, id. at 168:13-169:1. As to the second point, the number of people in a room at a given time is not necessarily indicative of an inability to see an individual holding a firearm. As to the third point, the Court found Officer Sywyj's explanation as to why he did not include the conversation in his report in the first instance worthy of belief. At the time he prepared his report, Mr. Warren had already confessed to possessing the weapon to Officer Hoyson so Officer Sywyj did not believe it was necessary to include it, and any failure to include it was otherwise an innocent omission (if an "omission" at all). As to the fourth point, the Court concludes that any description of Mr. Warren appearing and reappearing is not conclusive as to the reasonableness or urgency involved in the decision of whether the circumstances warranted entering the house. The situation remains that Mr. Warren was seen with a gun in his hand roughly eighteen (18) feet from Officer Sywyj, and that he no longer had the weapon after Officer Sywyj ordered him from the house. Exactly where he placed the gun in the meantime is irrelevant to the objectively reasonable assessment by law enforcement that they next needed to secure the home to prevent any other occupants from getting and using the gun Officer Sywyj had just seen against them or others.
