U.S. v. Rogers

Page 530

491 F.Supp.2d 530

UNITED STATES of America v. Trevino E. ROGERS.

Criminal No. 1:06-CR-0438.

United States District Court, M.D. Pennsylvania.

June 21, 2007.

Frederick W. Ulrich, Federal Public Defender's Office, Harrisburg, PA, for Trevino E. Rogers.

Joseph J. Terz, U.S. Attorney's Office, Harrisburg, PA, for United States of America.

MEMORANDUM

CONNER, District Judge.

Presently before the court are defendant's motions to suppress evidence (Does. 23, 30) and motion to suppress identification (Doc. 25). The court held an evidentiary hearing on defendant's motions on April 9, 2007. (See Doc. 38.) The motions have been fully briefed and are ripe for disposition. For the reasons that follow, the motions will be denied.

I. Findings of Fact¹

On December 20, 2006, defendant, Trevino E. Rogers, was indicted by a grand jury. The indictment charges defendant with: (1) possessing cocaine base with the intent to distribute, and (2) retaliating against a witness and informant.² (Doc. 4.) The government alleges that, from January 1, 2006 until December 20, 2006, defendant knowingly and intentionally distributed and possessed with the intent to distribute five grams and more of cocaine base. (Id.) The government further alleges that, on November 28, 2006, defendant knowingly caused bodily injury to Christine Rupert ("Rupert") in retaliation for Rupert's decision to provide information about defendant's alleged drug offense to law enforcement officers. (Id.) On December 21, 2006, defendant entered a plea of not guilty to each count in the indictment. (Doc. 10.)

A. The Search and Seizure

The allegations in the indictment relating to possession of cocaine base are based upon evidence seized from defendant's person on September 22, 2006. At approximately 7:40 p.m. on that date, Corporal Eric J. Norman ("Corporal Norman") of the Mifflin County Regional Police Department was working an aggressive patrol with the Mifflin County Drug Task Force. (Tr. at 48-49.) While patrolling a high crime area within the Lewistown borough, Corporal Norman observed two males who appeared to have "interacted" in an alley. (Id. at 49-50.) Corporal Norman followed one of the individuals to a gas station parking lot, exited his unmarked patrol vehicle, and approached the individual. (Id. at 50.) Corporal Norman identified himself and advised that he was conducting an "aggressive interdiction patrol," which meant that he was looking for people breaking the law in high crime areas. (Id. at 51, 62-63.) When he approached defendant, Corporal Norman was not wearing a traditional police uniform, but was wearing a vest that identified him as a police officer and carrying a holstered gun. (Id. at 50-51, 61.)

Corporal Norman asked the individual for his identification. The individual was fully cooperative and identified himself as Trevino Rogers. (Id. at 52.) After defendant had been identified, Corporal Norman asked him if he had any weapons on his person, and defendant responded that he did not. (Id. at 51.) Corporal Norman then asked if he could search for weapons, and defendant stated that he could. (Id. at 51, 53.) Corporal Norman testified that he did not possess a reasonable suspicion that defendant had committed a crime at this point. (Id. at 54.) Corporal Norman also testified that he would not have pursued defendant any further had defendant refused to identify himself or refused to consent to the search. (Id. at 56, 64.) Corporal Norman did not use any force against defendant, did not draw his gun, and did not shout at defendant. (Id. at 53.)

While conducting the search, Corporal Norman felt a hard rocky bulge in defendant's right front jeans pocket. (Id. at 52, 65.) Defendant pushed Corporal Norman's hand away from the bulge, told Corporal Norman not to touch "his money," turned, and ran. (Id. at 53.) Corporal Norman and another officer pursued and apprehended defendant. (Id. at 53-54.) In the search incident to defendant's arrest, the police recovered cocaine base from defendant's right front jeans pocket. (Doc. 23 ¶ 17; Doc. 48 at 3.) Defendant now argues that the cocaine base should be suppressed because Corporal Norman had no legal basis for stopping, searching, or arresting him. (See Doc. 23 ¶¶ 14, 16.)³

B. The Identification

The indictment's allegations of retaliating against a witness are based upon Rupert's identification of defendant as her attacker. Rupert was a witness who had been cooperating with authorities in the investigation of Benjamin Simmons ("Simmons"), an individual who was suspected of narcotics trafficking. (Tr. at 8, 24.) On December 1, 2006, Rupert informed Detective Barry Howe ("Detective Howe") that she had been kidnapped and assaulted three days earlier. (Id. at 24-25) Rupert told Detective Howe that her attacker had repeatedly referred to her as "a little girl who could not keep her mouth shut" and that she suspected that Simmons was behind the attack. (Id. at 27.) She described her attacker as a thirty-year-old black male, who was 5'11", weighed 170 pounds, had a shaved head and goatee, and was wearing a black hooded sweatshirt, baggy jeans, and black sneakers. (Id.) Detective Howe promised Rupert that he would assist in identifying her attacker by preparing a photographic array containing Simmons' known associates. (Id. at 26.)

Detective Howe asked Pennsylvania State Trooper Richard Leight ("Trooper Leight") to prepare the array. (Id. at 5, 26.) Detective Howe informed Trooper Leight that the suspect was a black male with a shaved head and requested that Trooper Leight incorporate some known associates of Simmons, including defendant, into the array. (Id. at 6, 9, 26, 38.) As per Detective Howe's request, Trooper Leight included photographs of defendant and four known associates of Simmons. (Id. at 8-9.) To complete the array, Trooper Leight selected photographs from the Mifflin County Prison database that matched the description provided by Detective Howe. (Id.)

The completed array contained a total of sixteen photographs on two pages, one labeled A and the other labeled B. (Id. at 7.) Defendant's photograph was designated as A2. Detective Howe presented the array to Rupert, told her that it contained known associates of Simmons, and asked her to pick out anyone she recognized as her attacker. (Id. at 29-30.) According to Detective Howe, Rupert stared at the photographs for a few minutes, picked up page A, and began crying. (Id. at 31-33.) She then placed page A underneath page B, pushed both pages to the side of the table, and said, "I don't think he's here." (Id. at 31-32.)

Sensing Rupert's reluctance, Detective Howe advised Rupert of the importance that she identify her attacker's photograph if it was contained in the array. Detective Howe explained that if she did not make an identification, he would be required to complete a report indicating that she had viewed the array and concluded that it did not contain her attacker's photograph. (Id. at 32, 42.) Rupert then asked Detective Howe if he could escort her mother from the room, and Detective Howe complied. (Id. at 33-34.) When Detective Howe returned, which was approximately ten minutes after Rupert had been provided with the array, Rupert identified defendant as her attacker. (Id. at 30-31, 34.) Detective Howe asked if she was certain, and she confirmed that she was. (Id. at 34.) Rupert explained that she had not identified defendant earlier because she feared that her family might retaliate against him. (Id.)

Defendant now contends that the identification should be suppressed because the photographic array contained photographs of individuals who were "dissimilar in appearance to Defendant" and because Rupert knew some of the individuals included in the array. (Doc. 25 ¶ 9-10.) Specifically, Rupert knew the individuals pictured in photographs A4 and A7. (Tr. at 19-20.) In addition, the men in photographs A8, Bl, and B6 differed in weight from defendant, and those in photographs Al, A3, A4, A8, B2, and B3 had different haircuts and/or facial hair than defendant. (Id. at 13, 18, 44-45.) Finally, the men in photographs Al, A3, A6, and A8 were wearing "street clothes," while defendant was wearing an orange jumpsuit. (Id. at 8, 15, 46.)

II. Discussion

In the instant case, defendant asks the court to suppress the drug evidence found on his person on September 22, 2006, all evidence found pursuant to the search warrant executed on September 25, 2006, and the identification made by Rupert on December 1, 2006. The court will address defendant's requests seriatim.

A. Motion to Suppress Evidence

Defendant contends that his initial confrontation with Corporal Norman, the subsequent search of his person, and his eventual arrest all violated the Fourth Amendment prohibition against "unreasonable searches and seizures." The court turns first to the issue of defendant's alleged seizure. Whether a police encounter rises to the level of a seizure, requiring police to have at least "reasonable suspicion" of illegal activity, hinges on whether a reasonable person, exposed to the same surrounding circumstances, would feel free to terminate the encounter. United States v. Drayton, 536 U.S. 194, 202, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). "Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage — provided they do not induce cooperation through coercive means." Id. Coercion, sufficient to transform an encounter into a seizure, generally requires that police act in a threatening or dominating manner, by brandishing a firearm or making a "show of force." Id. That an officer wears a uniform and a holstered sidearm does not, without more, create intimidation sufficient to overcome the resolve of a "reasonable person." Id.

In the instant case, Corporal Norman admitted that he did not possess the reasonable suspicion necessary to...