L. FELIPE RESTREPO, District Judge.
Defendant Charles Thompson ("Thompson") is charged with being a convicted felon in possession of a firearm. ECF No. 1. Thompson moves to suppress a .22 caliber Jiminez Arms handgun, Model JA22, serial number 1146326, and the four rounds of ammunition that were loaded in that handgun. The handgun and ammunition were recovered from the corner of a parking lot at 310 W. Chelten Avenue, where Thompson was seen urinating in public. ECF No. 13 at 2. Upon consideration of Thompson's motion (ECF No. 12), the opposition thereto (ECF No. 13), and the evidentiary hearing and argument conducted on August 17, 2015 (ECF Nos. 21, 24) ("Hr'g Tr."), Thompson's Motion to Suppress will be denied for the reasons that follow.
1. On the evening of April 17, 2015,
2. Among other things, the officers were on the lookout for incidents of "theft from auto," due to the high number of reported car break-ins in that area of the city. Hr'g Tr. 8:19-9:7.
3. The officers were in uniform and operating a standard PPD marked patrol car; Officer Rodriguez was the driver, and Officer Harris was the "recorder," that is, sitting in the front passenger seat. Hr'g Tr. 8:2-18.
4. At approximately 8:34 PM, the officers were driving eastbound on W. Chelten Avenue, between Morris Street and Pulaski Avenue, when Officer Rodriguez observed three males standing in a parking lot located next to 310 W. Chelten Avenue. Hr'g Tr. 11:6-13:16.
5. As he drove by, Officer Rodriguez noticed one of the males, later identified as Thompson, walk away from the other two towards the rear of the parking lot. Hr'g Tr. 13:10-16.
6. In order to investigate their presence in the parking lot, Officer Rodriguez turned the patrol car right onto Pulaski Avenue, and then right again onto W. Woodlawn Street (Hr'g Tr. 13:17-14:3); W. Woodlawn Street is a dead end on that block due to a fence that cordons off the nearby SEPTA tracks (Hr'g Tr. 54:6-16, 65:24-66:2).
7. As the patrol car turned onto W. Woodlawn Street, the patrol car's headlights were pointed at the fence at the end of the block, and Officer Rodriguez turned on the spotlight affixed to the driver's side of the vehicle and pointed it towards the fence; the area was also illuminated by overhead street lights. Hr'g Tr. 14:3-15:23.
8. Upon making the turn onto W. Woodlawn Street, Officer Rodriguez observed Thompson in the rear corner of the parking lot, immediately to the right of a fire hydrant, facing the fence, with his back angled. Hr'g Tr.14:3-22, 19:22-20:24, 58:15-21, 59:18-25.
9. Though Officer Rodriguez could only see the back half of Thompson, Officer Rodriguez could tell that Thompson was urinating in public based on his body position and because he "saw the stream" of urine. Hr'g Tr. 57:5-8, 58:21-25.
10. When the patrol car was approximately 20 feet from Thompson's location, Officer Rodriguez observed Thompson reach into his front right pants pocket with his right hand and remove a handgun. Hr'g Tr. 22:20-23:2; 23:12-22, 37:6-20.
11. Officer Rodriguez observed Thompson drop the handgun approximately one foot to the right of Thompson's body, to the right of the fire hydrant (Hr'g 23:23-24:9); this occurred while Thompson continued to maintain the urination posture and use his left hand to facilitate urination (Hr'g Tr. 64:2-65:4).
12. After observing this, Officer Rodriguez continued to drive on W. Woodlawn Street towards Thompson's position along the fence, stopped the patrol car approximately five feet short of Thompson's position, and turned the car slightly to the right so that it was angled toward the rear entrance/exit of the parking lot at 310 W. Chelten Avenue. Hr'g Tr. 21:25-22:4, 74:8-14.
13. The gates to both the front and rear of the parking lot at 310 W. Chelten Avenue were open throughout the course of the encounter. Hr'g Tr. 54:20-55:5.
14. Upon stopping the patrol car, Officer Rodriguez exited the vehicle and said words to the following effect to Thompson: "Come here. What's your name?" Hr'g Tr. 21:20-24, 23:3-5, 74:20-75:13.
15. Immediately after Officer Rodriguez finished speaking, Thompson began to run through the parking lot, between the parking lot light posts and the side of 310 W. Chelten Avenue, towards W. Chelten Avenue. Hr'g Tr. 23:3-10, 25:12-18, 75:14-76:24.
16. As soon as Thompson began to run, Officer Rodriguez pursued him on foot; during the brief chase, Officer Rodriguez was approximately four to five feet behind Thompson. Hr'g Tr. 25:19-24, 27:19-21, 77:5-7.
17. As Thompson exited the parking lot through the pedestrian entrance/exit to the parking lot, he fell to the ground, got up, turned left onto the sidewalk of W. Chelten Avenue, and then turned left again to run back through the vehicle entrance/exit of the parking lot he had just exited. Hr'g Tr. 25:25-26:8, 26:18-27:12, 77:8-17.
18. While Officer Rodriguez pursued Thompson on foot, Officer Harris got in the driver's seat of the patrol car and began to drive it from its position at the W. Woodlawn Street entrance/exit towards W. Chelten Avenue; as Thompson reentered the parking lot, Officer Harris used the car to cut off Thompson from running farther into the parking lot. Hr'g. Tr. 26:9-13, 28:7-17, 78:2-15.
19. Officer Rodriguez caught Thompson mid-block in the parking lot, and physically stopped him from running farther. Hr'g Tr. 78:12-15, 26:9-13, 27:23-28:12.
20. Having physically stopped Thompson, Officers Rodriguez and Harris detained Thompson, with Officer Harris responsible for controlling Thompson's movement. Hr'g Tr. 28:18-23, 79:16-21.
21. After detaining Thompson, Officer Rodriguez pursued the other two males who were initially spotted in the parking lot with Thompson; around the time the officers approached Thompson via car on W. Woodlawn Avenue, these two males had walked out of the parking lot towards W. Chelten Avenue, and had turned to the right towards Pulaski Avenue. Hr'g Tr. 28:18-30:1, 79:16-80:1.
22. Officer Rodriguez caught up with the two males just past the Delmar bar, located on W. Chelten Avenue, grabbed them by the back of their pants and escorted them back to the parking lot for investigation; the two males complied with Officer Rodriguez's instructions. Hr'g Tr. 29:20-31:15.
23. After Officer Rodriguez escorted the two males back to the parking lot, Officer Rodriguez returned to the area where he observed Thompson drop the handgun and recovered it from the ground; additional officers arrived on the scene as backup a minute or two later. Hr'g Tr. 79:22-81:5.
24. The Jiminez Arms handgun dropped by Thompson was loaded when it was recovered by Officer Rodriguez, but Officer Rodriguez immediately removed all four bullets from the handgun — one bullet from the chamber and three bullets from the magazine. Hr'g Tr. 36:11-24.
25. The other two males provided their names to Officer Rodriguez, and he checked their names against police databases; one of the males had a scofflaw warrant and was issued a new subpoena for traffic court, after which both males were released.
26. Thompson, who had been placed in the back seat of the patrol car at this point, responded to the officers' questions about his name by stating that his name was "Robert Thompson" and giving an incorrect date of birth. Hr'g Tr. 33:1-11.
27. After several minutes, Thompson provided his real name and date of birth to the officers. Hr'g Tr. 33:12-34:4.
28. Following Thompson's arrest, Officer Rodriguez transported Thompson to a PPD facility and placed him in a holding cell. Hr'g Tr. 39:2-9.
29. After placing Thompson in the holding cell, Officer Rodriguez placed the Jiminez Arms handgun and ammunition on a property receipt, provided that property receipt and other paperwork to the district detectives, and then dropped off the handgun and ammunition at the Firearms Investigation Unit, located at 8th Street and Poplar Street. Hr'g Tr. 39:2-42:9.
Thompson's written briefing in support of his motion to suppress argued that: "the allegation that he was urinating was mere pretext. As such, there were no facts to support reasonable suspicion that criminal activity was afoot; the seizure of Mr. Thompson violated his Fourth Amendment rights." Def.'s Mot. to Suppress 1. Thompson's moving papers later clarified that, "Mr. Thompson was seized when the officers cornered him in the parking lot" and this "seizure was not supported by reasonable suspicion."
On a motion to suppress, the judge sits as the fact finder and is empowered to make any necessary credibility determinations.
Third Circuit Model Criminal Jury Instructions, Instruction 1.10 — Credibility of Witnesses.
At the suppression hearing, Officer Rodriguez was the only fact witness to testify.
Counsel for Thompson argued that the CAD reports undermine Officer Rodriguez's testimony about seeing Thompson drop the handgun because they were each coded as a "Priority 2" and not a "Priority 1" ("Priority 1" is the designation for police radio calls identifying a "man with a gun"). Hr'g Tr. 100:17-101:3, 117:8-25. However, the priority levels are assigned by the police dispatchers, not by the officer in the street. Hr'g Tr. 108:5-25, 118:16-20. Furthermore, the "Priority 2" designation for the "Investigate Person" call is consistent with the initial parameters of Officer Rodriguez's action — checking on three males standing in a parking lot, one of whom the officer eventually observes urinating in public. Hr'g Tr. 92:20-25. In addition, the "Priority 2" designation is consistent with Officer Rodriguez's testimony that he did not call out, either to Officer Harris or to dispatch, that he observed a gun before he started chasing Thompson as he fled. Hr'g Tr. 73:9-21, 85:4-13. There are numerous other aspects of the CAD reports that confirm aspects of Officer Rodriguez's testimony, including: (1) two other individuals, Robinson and Timmons, were temporarily detained in addition to Thompson (
Officer Rodriguez's testimony at the suppression hearing will be credited in full, as the Court finds no legitimate reason to question the truth or accuracy of his statements. Having made the necessary credibility determinations, the Court must determine the timing of the seizure that occurred in this matter, whether reasonable suspicion existed at that time that seizure took place, and whether the handgun should be suppressed in light of these determinations.
The Fourth Amendment to the United States Constitution protects persons "against unreasonable searches and seizures." U.S. Const. amend. IV. Typically, for a seizure to be considered reasonable under the Fourth Amendment, it must be effectuated with a warrant that is supported by probable cause.
Under the framework established in Terry, the first step is to determine the moment of seizure.
In his moving papers, Thompson argued that he submitted to the police show of authority when he remained still in the corner of the parking lot as the officers approached him in their marked police vehicle, with its headlights and spotlight shining on him. Def.'s Mot. to Suppress 2-4. Courts must "determine if there has been a `show of authority' using an objective test: `whether the officer's words and actions would have conveyed . . . to a reasonable person' that he was not free to leave."
When faced with a defendant's motion to suppress evidence, "the government must bear the burden of proving the existence of reasonable suspicion."
Though Thompson did not specifically reference a "forced abandonment" theory in his motion to suppress, Thompson's moving papers suggests that the handgun should be suppressed due to the allegedly illegal nature and timing of Thompson's seizure.
"Although a person has a privacy interest in the contents of his personal [property] he forfeits that interest when he abandons his property."
"`[W]hen abandonment of property is precipitated by an unlawful seizure' or search, that property is the fruit of the officer's unlawful activities and is inadmissible."
Here, Thompson abandoned the handgun prior to his seizure, and thus had no reasonable expectation of privacy with respect to the handgun.
1. A "show of authority" could not have occurred before Officer Rodriguez asked Thompson what his name was and told Thompson to approach the officers.
2. Thompson never voluntarily submitted to any "show of authority," and was seized for the first time when Officer Rodriguez and Officer Harris applied physical force to Thompson in the middle of the parking lot.
3. Officer Rodriguez had reasonable suspicion that Thompson had engaged in criminal activity prior to seizing Thompson.
4. Thompson abandoned the handgun at issue prior to being seized by Officer Rodriguez and Officer Harris.
For the foregoing reasons, Thompson's Motion to Suppress will be denied. An implementing Order follows.