PA Chiefs_Bulletin Winter

PA CHIEFS OF POLICE ASSOCIATION

BULLETIN

WINTER 2016

www.pachiefs.org

LEGAL UPDATES FOR LAW ENFORCEMENT

rant requirement. Minnesota v. Dickerson,

508 U.S. 366, 372 (1993); Herrold, 962

F.2d at 1137.

In the event that evidence is illegally obtained

due to a Fourth Amendment violation, a de-

fendant may seek to suppress the evidence.

United States v. Calandra, 414 U.S. 338,

347 (1974); Herrold, 962 F.2d at 1137. Fur-

thermore, evidence obtained in a search con-

ducted in connection with an invalid investi-

gatory stop may be inadmissible as "'fruit of

the poisonous tree.'" United States v. Brown,

448 F.3d 239, 244 (3d Cir. 2006) (quoting

Wong Sun v. United States, 371 U.S. 471,

487-88 (1963) and citing United States v.

Coggins, 986 F.2d 651, 653 (3d Cir. 1993)).

The exclusionary rule was created by the Su-

preme Court as a "deterrent sanction that

bars the prosecution from introducing evi-

dence obtained by way of a Fourth Amend-

ment violation." Davis v. United States, 564

U.S. 229, 231-32 (2011); see also United

States v. Katzin, 769 F.3d 163, 169 (3d Cir.

2014) ("To deter Fourth Amendment viola-

tions, when the Government seeks to admit

evidence collected pursuant to an illegal

search or seizure, the judicially created doc-

trine known as the exclusionary rule at times

suppresses that evidence and makes it un-

available at trial." (citing Herring v. United

States, 555 U.S. 135, 139 (2009))).

A. Fruit of the Poisonous Tree

Defendant argues that because the initial in-

vestigatory stop was not based on reasonable

suspicion that criminal activity was afoot,

evidence of the shotgun is tainted as a result

of the Fourth Amendment violation and,

therefore, must be suppressed as fruit of the

poisonous tree. Specifically, Defendant con-

tends that because Officer Filler could not

have seen the shotgun from his vantage point

in the patrol car, the investigatory stop was

not justified by reasonable suspicion.

Since Defendant has established a basis for

his Motion by showing that a warrantless

search took place, the burden shifts to the

Government to establish, by a preponder-

ance of the evidence, that the shotgun is ad-

missible under one of the recognized excep-

tions to the warrant requirement. Johnson,

63 F.3d at 245. The Government maintains

that the shotgun was discovered during a

permissible search following a valid investi-

gatory stop and, thus, it need not be sup-

pressed as fruit of the poisonous tree. Under

the Fourth Amendment, brief investigatory

stops, commonly referred to as Terry stops,

are permissible if they are based on "reason-

able, articulable suspicion that criminal ac-

tivity is afoot." Illinois v. Wardlow, 528 U.S.

119, 123 (2000) (citing Terry v. Ohio, 392

U.S. 1, 30 (1968)). Reasonable [*9] sus-

picion is "a less demanding standard than

probable cause," although it requires, at

least, "a minimal level of objective justifica-

tion for making the stop." Id. at 123 (cit-

ing United States v. Sokolow, 490 U.S. 1,

76 (1989)). To make a showing that he or

she has reasonable suspicion to make a stop,

"[t]he officer must be able to articulate more

than an 'inchoate and unparticularized sus-

picion or hunch of criminal activity.'" Ward-

low, 528 U.S. at 123-24 (quoting Terry, 392

U.S. at 27). When we assess whether a Terry

stop was reasonable, we consider "the total-

ity of the circumstances, which can include

[the defendant's] location, a history of crime

in the area, [the defendant's] nervous behav-

ior and evasiveness, and [the officer's] 'com-

monsense judgments and inferences about

human behavior.'" Johnson v. Campbell,

332 F.3d 199, 206 (3d Cir. 2003) (quoting

Wardlow, 528 U.S. at 124-25). Our "reason-

able suspicion analysis is objective; subjec-

tive motive or intent is not relevant." United

States v. Goodrich, 450 F.3d 552, 559 (3d

Cir. 2006)(citing Terry, 392 U.S. at 21-22).

Moreover, our reasonableness assessment

"must be measured by what the officers

knew before they conducted their search."

Florida v. J.L., 529 U.S. 266, 271 (2000).

Defendant argues that the officers could not

have had reasonable suspicion to support

stopping him because Officer Filler could

not have seen the shotgun in the back of the

van as he drove the patrol car towards Defen-

dant. Defendant maintains that the lighting

conditions on the street were too poor to en-

able the officers to view the inside of the van

from their position in the patrol car. Defen-

dant also relies on the 7548(a) post-incident

report in which Officer Lane details the of-

ficers' reasons for the investigatory stop:

Vehicle parked illegally on the sidewalk

with the owner Rolando Perez-Boscana and

another male at the rear with both doors

open. The driver looked in the direction of

police and slammed the rear doors shut and

began walking southbound on Water Street

away from the van. Owner reached into his

pocket, discarded two shotgun shells onto

the highway. The van was running and was

registered to the male police had stopped.

Police observed in plain view in the rear of

the van a shotgun. (Def.'s Ex. 6.; see also

9/22/16 N.T. at 117.) Defendant argues that

it is significant that Officer Filler's viewing

of the gun is not one of the initial sentences

in Officer Lane's report. He argues that if

Officer Filler had truly seen the gun, this im-

portant fact would have appeared in the first

sentence of the report. We are not persuaded

that the order of the events transcribed in the

report carries any controlling significance.

The Government maintains that the evi-

dence of record establishes that the officers

had reasonable suspicion to support their

investigatory stop of Defendant. As we dis-

cussed above, the officers testified at the

Hearing as follows: (1) Officer Filler saw

what he believed was the stock of a shot-

gun in the back of the van, which was il-

luminated by the headlights of the officers'

patrol car (9/22/16 N.T. at 21, 23); (2) the

van was parked illegally on the sidewalk (id.

at 20); (3) Defendant acted suspiciously by

abruptly closing the doors to the van upon

the officers' arrival (id. at 22, 54, 94, 98);

(4) Defendant dropped shotgun shells onto

the ground as the officers approached (id.

at 28-29, 59, 130); and (5) Defendant was

outside, at night, in a high crime area near

the site of a recent double homicide (id. at

12-14, 90).

We conclude, based on this evidence, that

the officers had a "reasonable, articulable

suspicion that criminal activity [was] afoot."

Wardlow, 528 U.S. at 123 (citation omit-

ted). Nervous or evasive behavior can be a

"pertinent factor" in an officer's reasonable

suspicion calculus. Id. at 124 (citing United

States v. Brignoni-Ponce, 422 U.S. 873, 885

(1975); Florida v. Rodriguez, 469 U.S. 1, 6

(1984) (per curiam); Sokolow, 490 U.S. at

8-9. Presence in a "high crime area" is also a

relevant consideration when assessing reason-

able suspicion. Id. (quoting Adams v. Wil-

liams, 407 U.S. 143, 144, 147-148 (1972));