Opinion
Criminal Action No. 05-00062.
October 3, 2005
ORDER
AND NOW, this 3rd day of October, 2005, upon consideration of Defendant's Motion to Suppress Physical Evidence (Document No. 16, filed March 2, 2005), the Government's Response to Defendant's Suppression Motion (Document No. 20, filed March 14, 2005), Defendant's Supplemental Motion to Suppress Physical Evidence (Document No. 33, filed April 29, 2005), and the Government's Response to Defendant's Supplemental Suppression Motion (Document No. 34, filed May 4, 2005), following a hearing in open court on September 16, 2005, with defendant and all counsel present, for the reasons stated in the attached Memorandum, IT IS ORDERED that Defendant's Motion to Suppress Physical Evidence and Defendant's Supplemental Motion to Suppress Physical Evidence are DENIED.
MEMORANDUM
I. BACKGROUNDDefendant, John Nigro, is charged in an Indictment with one court of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The Indictment arises out of defendant's arrest by Philadelphia police officers on December 10, 2004, during which police found a loaded and concealed firearm inside a bag next to defendant. Defendant filed a Motion to Suppress Physical Evidence on March 2, 2005 and a Supplemental Motion to Suppress Physical Evidence on April 29, 2005. In the Motion to Suppress Physical Evidence, defendant argues that the police lacked probable cause to search his bags during his arrest, the search was not incident to his arrest, and the plain view exception does not apply. In the Supplemental Motion to Suppress Physical Evidence, defendant argues that the arrest warrant was not supported by probable cause and that the good faith exception was inapplicable under the evidence presented. By Order dated September 16, 2005, the Court ruled that there was probable cause to issue the arrest warrant.
By Order dated July 27, 2005, the Court granted defendant's motion to reinstate defendant's Motion to Suppress Physical Evidence and Supplemental Motion to Suppress Physical Evidence after those motions were marked withdrawn at the request of defendant by Order dated June 22, 2005.
The Court held a suppression hearing on September 16, 2005. At the suppression hearing, the parties presented both testimony from the arresting officers and documentary evidence. The Court now makes the following findings of fact based on that evidence.
On November 1, 2004, a warrant was issued for defendant's arrest for the burglary of a residence at 1328 Geary Street in Philadelphia, Pennsylvania on October 12, 2004, during which a safe, jewelry, and other items were take from the residence. The arrest warrant charged state criminal offenses of conspiracy, burglary, criminal trespass, theft, receiving stolen property, and unauthorized use of an automobile. The warrant was based on an Affidavit of Probable Cause by Detective Stephen Caputo.
Defendant fled from three encounters with police prior to his arrest on December 10, 2004. On October 28, 2004, four days prior to the issuing of the arrest warrant, Detective Caputo and his partner were traveling on the 2500 block of Mildred Street when they observed defendant at the passenger-side door of a gray Mazda at approximately 3:45 p.m. Defendant saw the police and immediately ran into and out the rear of a nearby residence. Detective Caputo and his partner searched the area but were unable to locate defendant. On November 30, 2004, at approximately 5:45 p.m., Detective Caputo saw defendant on the 2500 block of Mildred Street once again. Defendant, who was driving a gray Mazda, eluded the police by making an illegal turn and then disregarding traffic signals at the intersection of 7th Street and Oregon Avenue. Then, on December 6, 2004, at approximately 1:45 p.m., defendant caused a multi-vehicle crash at the intersection of Front Street and Fitzgerald Street in a successful effort to avoid arrest by Detective Caputo and his partner.
Prior to December 10, 2004, Detective Caputo gave notice to the Philadelphia Police Department that defendant was armed and that he had fled the police in the past. On that issue, Detective Caputo stated that he "put a general paper out over citywide and I also made a wanted poster relating to Mr. Nigro, the warrant, what he is wanted for and he has fled police in the past and he may be armed with a firearm. To use caution when attempting, approaching him or attempting to apprehend him." (Tr. 72-73). Thereafter, on December 10, 2004, the police received information that defendant was traveling in South Philadelphia in a green Eldorado, armed with a firearm.
The events which led to defendant's arrest on December 10, 2004, began when a confidential informant told police that defendant was at 141 Gladstone Street in Philadelphia and that he had a gun in his possession. At approximately 5:00 p.m., police entered 141 Gladstone Street, but could not find defendant. The police officers then began to search the area surrounding the residence. Detective Robert Conn walked behind 141 Gladstone Street and atop a concrete wall that separates the backyards of the properties on the block. Using his flashlight to illuminate the area, Detective Conn found defendant in the backyard of 137 Gladstone Street. The defendant was in a crouched position at that time. Detective Conn shouted "police" and requested backup. Detectives Caputo and Raymond Evers and Officer Gary Harkins responded immediately and converged on defendant.
As Detective Conn was engaged in lifting defendant from the ground and cuffing defendant's hands behind his back, Detective Evers picked up a green bag, located on the ground "directly next" to defendant. (Tr. 41, 48). At that time, defendant was not in full custody; he was not fully handcuffed. (Tr. 80). Detective Evers testified that he instantly knew the bag contained a firearm, based on its weight and feel. "The bag [was] very tight and you could actually, as soon as you grasped the bag you could feel [it was] a revolver." (Tr. 40). Detective Evers immediately opened the bag and retrieved the firearm. Detective Caputo testified that he assisted Detective Evers in opening the bag. (Tr. 73). At the time the bag was opened, defendant was fully handcuffed. (Tr. 49).
II. DISCUSSION
A warrantless search is presumptively illegal. See Katz v. United States, 389 U.S. 347 (1967). Accordingly, once it is established that a warrantless search has occurred, the burden is on the government to establish by a preponderance of the evidence that its conduct was within a recognized exception to the constitutional requirement for a warrant. See United States v. Jeffers, 342 U.S. 48, 51 (1951). If the government fails to carry its burden, any evidence seized must be suppressed.
The arresting officers had a warrant to arrest defendant, but they did not have a warrant to search the green bag. Thus, the Court's inquiry focuses on whether Detective Evers, in picking up the bag as defendant was being handcuffed and in opening the bag after defendant was fully handcuffed, committed an unconstitutional, warrantless search. The Court concludes that the warrantless search was justified as a search incident to an arrest.
In Chimel v. California, 395 U.S. 752 (1969), the Supreme Court held that "[w]hen an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape." Id. at 762-63. TheChimel decision did not limit the scope of such searches to the suspect's person. "There is ample justification . . . for a search of the arrestee's person and the area `within his immediate control' — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." Id. at 763.
The Third Circuit has explained that the search incident to arrest doctrine is subject to "both geographic and temporal limitations." United States v. Myers, 308 F.3d 251, 266 (3d Cir. 2002). The exact contours of these limitations are tailored to the particular circumstances under which the arrest was executed. While a defendant maintains an expectation of privacy in the context of a valid arrest, this Court remains "mindful of the exceedingly difficult nature of the split-second decisions police officers must make on a daily basis." Myers, 308 F.3d at 275.
Myers instructs the Court to determine whether the actions of the arresting officers provide an "objective basis" upon which to conclude that the search without a warrant was unnecessary to ensure the safety of the officers or to protect evidence. InMyers, the Third Circuit concluded that a search conducted by an arresting officer who frisked the defendant, then left the room where the arrest was effected to question a witness, and returned to conduct the search was not justified under the search incident to arrest exception. The Myers Court determined that, under the circumstances presented, because of the delay in conducting the search, there was an objective basis to conclude that the arresting officer was not concerned about the possibility of the defendant reaching into the bag and grabbing the gun at the time of the search. Id. at 273-74.
The Myers Court granted the motion to suppress on the ground that an objective analysis of the circumstances surrounding the search undermined any justification put forth by the arresting officer. "Obviously, if the officer had been worried at the time of arrest that Myers could reach the black bag though handcuffed and covered by two police officers, he would have searched the black bag when he searched Myers' waistband. Instead, he felt secure enough to leave Myers and go downstairs." Id. (emphasis in original).
The situation in the instant case differs from Myers. To start, there was no significant delay between the arrest and the search. The green bag was picked up as defendant was being handcuffed and was opened immediately thereafter. Additionally, the arresting officer in Myers did not become concerned about the danger posed by the gun until he opened the bag. Id. at 274. In this case, the arresting officers had received specific information that defendant was armed. Detective Caputo knew that defendant had fled the police on three prior occasions, causing a multi-vehicle accident in one of those incidents. Finally, the bag in Myers was several feet away from the defendant, while in this case the bag was immediately next to defendant. Under this evidence, unlike Myers, there is no "objective basis" to conclude that the search was unjustified.
According to the arresting officer's testimony, he was not concerned that Myers had access to the bag or the gun. Instead, he was "concerned about possibly leaving a weapon behind in a home with . . . [a] minor child." Myers, 308 F.3d at 273.
Defendant argues that he posed no threat to the arresting officers at the time of the search, because his hands were cuffed and behind his back and he was surrounded by two officers. While the Court will presume that defendant "was neither an acrobat [nor] a Houdini," Myers, 308 F.3d at 267 (quoting United States v. Abdul-Saboor, 85 F.3d 664, 669 (D.C. Cir. 1996)), physical probability is not the standard by which to measure the propriety of a search incident to an arrest. If it were so, theMyers Court's reliance on Abdul-Saboor and United States v. Queen, 847 F.2d 346 (7th Cir. 1988), would be flawed.
The Myers Court, in adopting the "objective basis" standard, relied on Abdul-Saboor. 85 F.3d at 670. In that case, the defendant attempted to arm himself upon allowing the police to enter his apartment. The arresting officers immediately ordered the defendant to drop his gun, detained the defendant, and collected another weapon in plain view. At issue in the suppression hearing were subsequent searches of small bags throughout Abdul-Saboor's apartment. The searches took place after the defendant had been handcuffed and he was, at the time of the searches, in a separate room of the apartment. The D.C. Circuit upheld the search as lawful, because the defendant "had demonstrated both the capacity and the desire to avoid arrest."Id. Although the defendant could not have physically reached the bags at the time of search, the Abdul-Saboor Court found the officers were justified in their fear of defendant and the surrounding environment. Notwithstanding the fact that the arresting officers in the instant case did not confront such an overt threat, their concerns for safety were legitimate. Defendant was known to be armed, he had fled the police on three prior occasions, and he was found hiding in a darkened backyard/alley.
The Myers Court also considered Queen to be instructive in resolving the application of Chimel. In Queen, agents had a warrant for the defendant's arrest. They knew that he was a convicted felon who had not surrendered pursuant to a court order, and the evidence demonstrated that the agents believed Queen to be armed and dangerous. When the agents found the defendant, he was hiding in a pile of clothing. After he emerged and was handcuffed, one of the agents inspected the pile, which was roughly three feet from the detained defendant, and uncovered a gun. The defendant challenged the search on the grounds that it was impossible, with his hands cuffed behind his back, to have escaped from three agents and grabbed the gun. Although theQueen Court noted that the likelihood of defendant reaching the area in question was slight, it refused to require officers to make "punctilious judgments regarding what is within and what is just beyond the arrestee's grasp," Queen, 847 F.2d at 353 (quoting United States v. Lyons, 706 F.2d 321, 330 (D.C. Cir. 1983)), and denied the suppression motion.
The Myers Court explained that the outcome in Queen was justified, because "objective circumstances" suggested that the officer's actions at the time of arrest reflected the officer's belief that the defendant may have gained access to the weapon.Myers, 308 F.3d at 273. In the instant case, the objective circumstances warrant a similar conclusion. The arresting officers, acting with knowledge that defendant was armed and that he had fled from Detective Caputo on three prior occasions, pursued defendant behind 137 Gladstone Street. They had reason to believe that defendant would use force to resist or escape arrest yet another time. "Chimel does not require the police to presume that an arrestee is wholly rational. Persons under stress may attempt actions which are unlikely to succeed." United States v. McConney, 728 F.2d 1195, 1207 (9th Cir. 1984) (en banc) cert. denied 469 U.S. 824. Therefore, the picking up of the bag as defendant was being handcuffed and the search of the bag immediately thereafter was incident to his arrest.
III. CONCLUSION
For the reasons above, the Court denies Defendant's Motion to Suppress Physical Evidence and Defendant's Supplemental Motion to Suppress Physical Evidence.