Opinion
Criminal No. 03-783-01.
April 12, 2004
MEMORANDUM ORDER
Presently before the Court is the Motion of Defendant Raheem Braswell to Suppress Physical Evidence. (Doc. No. 45.) On April 8, 2004, a hearing was held on this Motion. After consideration of the evidence presented at the hearing and the applicable law, Defendant's Motion will be denied.
I. BACKGROUND
At approximately 10:06 p.m. on January 14, 2003, Philadelphia police received a tip that a person with a gun was around the 300 block of Duncannon Street in Philadelphia. This is a high crime area in the 35th Police District of the city. (Pl.'s Ex. 2 at 2 at 3; 4/08/04 Hearing Tr. at 5.) Police Officers Michael Harvey and Andrew Skaziak went to that location to investigate. They saw an individual by the name of Jose Martinez doing some mechanical work on his car. (Tr. at 5.) Officers Harvey and Skaziak asked Martinez if he had heard any gunshots. ( Id.) Martinez told the officers he saw two black males wearing dark clothing exit a tan vehicle, walk to a pay phone, and then walk back toward the tan vehicle. The two black males then opened fire on the tan car. Martinez saw the tan car leave the area at a high rate of speed. The two black males ran south on 3rd Street and east on Rubicam Street. (Pl.'s Ex. 4; Tr. at 5.) Officers Harvey and Skaziak broadcasted the description of the suspects over their police radio. (Tr. at 5.)
Defendant and the Government both argue that the police first received the report of a person with a gun at 10:50 p.m. A call log introduced into evidence by the Government shows that the call was received around 10:06 p.m. (Pl.'s Ex. 2 at 3.) However whether the call was received at 10:06 p.m. or 10:50 p.m. is immaterial.
Officers Barry Delagol and Stephen Wiercinski heard that broadcast and "seconds later" arrived at the 200 block of Rubicam Street, the area to which the shooters had fled. (Pl.'s Ex. 4; Tr. at 6, 14-15.) There, Officers Delagol and Wiercinski saw two black males wearing all dark clothing. ( Id.) One of the males was Defendant. (Tr. at 15.) There were no other people on the street. ( Id.) Defendant was not acting suspiciously. He was merely walking east on Rubicam Street. ( Id. at 19.)
Because Defendant and his companion were the only persons visible in the 200 block of Rubicam Street and because they fit the description of the shooting suspects, Officers Delagol and Wiercinski asked Defendant and his companion to stop and take their hands from their pockets. ( Id. at 15, 19-21.) They refused. Officers Delagol and Wiercinski repeated the request. ( Id. at 15.) Defendant and his companion then began to run from the officers. Officer Delagol pursued Defendant on foot. During the chase, Officer Delagol saw Defendant take a black revolver from his person and throw it into a yard. A short time later, Officer Delagol caught Defendant, and after a brief struggle, took him into custody. Officer Delagol then returned to the yard where Defendant threw the gun and recovered the weapon, a 38 caliber Smith and Wesson revolver. ( Id. at 16, Exhibit G-6).
Defendant was placed in the back seat of a police car for transportation to the police station. He was observed moving around in the back seat. Officer Wiercinski opened the door to get Defendant out of the police car and saw a plastic bag fall from Defendant's person. Officer Wiercinski seized the bag which contained marijuana. ( Id. at 26.) When Defendant arrived at the police station, he was searched. During that search, officers found four live rounds of 38 caliber hollow point ammunition in his coat pocket. ( Id. at 23, Exhibit G-10). Defendant identified himself to the police as Tyree Fuchness, not Raheem Braswell. (TR. at 26.)
Defendant argues that when Officers Delagol and Wiercinski saw him walking east on Rubicam Street and ordered him to stop, they illegally seized him and therefore violated Defendant's Fourth Amendment rights. Defendant agrees that he fit the description of the shooting suspects. However, Defendant argues that the description was too general to support a reasonable suspicion that Defendant had committed a crime. Because the initial stop of Defendant was illegal, Defendant argues that all physical evidence flowing from that stop must be suppressed. Accordingly, Defendant moves to suppress the gun, the bag of marijuana, and the ammunition.
II. ANALYSIS
Defendant's arguments are foreclosed by California v. Hodari D., 499 U.S. 621 (1991). In Hodari D., police officers approached Hodari. When Hodari saw the officers, he began to run away and one officer chased after him. While chasing Hodari, the officer saw Hodari toss away what appeared to be a small rock. A short time later, the officer tackled Hodari and placed him under arrest. The officer then retrieved what Hodari had tossed away and discovered that it was crack cocaine.
The Supreme Court held that the officer's seizure of the crack cocaine was lawful, even though the officer did not have the reasonable suspicion required to stop Hodari before he started to run. Hodari D., 499 U.S. at 624 n. 1. The Court held that even if the officer's pursuit of Hodari qualified as a "show of authority", Hodari was not seized during the pursuit because he did not submit to the officer's show of authority. Hodari was not seized until he was tackled by the officer. By that time, Hodari had abandoned the cocaine and thus it was not the fruit of a seizure. Id. at 629.
The facts in the instant case cannot be distinguished from those in Hodari D. Even if we were to assume that Officers Delagol and Wiercinski did not have the reasonable suspicion required to ask Defendant to stop, an assumption which we reject, Defendant was not seized at that moment because he did not comply with their request. Instead, Defendant ran away from the officers. During the ensuing chase, Officer Delagol saw Defendant toss away a gun. Officer Delagol then had probable cause to arrest Defendant. See United States v. Embry, 546 F.2d 552, 556 (3d Cir. 1976) (defendant's action in discarding incriminating evidence while being chased by police "more than satisfies the probable cause requirement for [that defendant's] arrest"). However, the gun recovered by Officer Delagol was not the fruit of a seizure, because Defendant abandoned it before he was seized. Hodari D., 499 U.S. at 629.
We are satisfied that officers Delagol and Wiercinski had sufficient "reasonable suspicion" to justify stopping Defendant. See Terry v. Ohio, 392 U.S. 1 (1968).
After Defendant was lawfully arrested, the police could lawfully search him incident to that arrest. New York v. Belton, 453 U.S. 454, 461 (1981). Thus, the seizure of the marijuana and the ammunition was lawful. See id.; United States v. Edwards, 415 U.S. 800 (1974) (holding that search incident to arrest may occur at police station). Accordingly, we will deny Defendant's motion to suppress.
An appropriate Order follows.