USA v. SAROEUTH, CRIMINAL ACTION NO. 10-cr-462-01

USA, Plaintiff,

v.JOSEPH SAROEUTH, Defendant.

CRIMINAL ACTION NO. 10-cr-462-01

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Dated: April 12, 2011

Tucker, J.

Currently pending before the Court is Defendant's Motion to Suppress (Doc. 21) and the Government's Response in Opposition thereto (Doc. 25). For the reasons discussed below, the Court grants Defendant's motion.

I. Background

On November 10, 2009, defendant Joseph Saroeuth was charged by a federal grand jury sitting in the Eastern District of Pennsylvania in an indictment with one count of unlawfully possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The alleged facts giving rise to Defendant's indictment are as follows.

On June 22, 2010, at approximately 7:17 p.m., Philadelphia Police Radio Dispatch received an anonymous call. The caller stated her belief that there would be a shooting in the vicinity of 6^th and Wolf Streets in Philadelphia. Approximately one minute later, at 7:18 p.m., Philadelphia Police 3^rd District Officers Newell and Padilla, who were on patrol in plain clothes in an unmarked vehicle, received a radio dispatch call stating the following: "Person with a gun. A large fight. Several people armed with guns. No flash." The officers were proceeding southbound on 6^th Street when they received the call.

In response, the officers proceeded to the scene, just south of the corner of Wolf and 6^th Streets. Upon arrival, the officers observed a large group of approximately fifteen to twenty Asian adult and teenage males dispersing, but no fight in progress. Officers Newell and Padilla also recognized Mr. Saroeuth, with whom they were familiar from previous contacts on the street, as well as previous arrests. The officers were aware that Mr. Saroeuth was a member of a well known Asian gang. During previous casual encounters with the officers, Mr. Saroeuth had been cooperative, agreeing to speak with them voluntarily.

Officer Padilla stopped the unmarked patrol vehicle in the middle of the street. Officer Newell emerged from the halted vehicle and directly approached Mr. Saroeuth. Officer Newell inquired, "Joe, everything all right, everything cool?" Immediately after posing this question, Mr. Saroeuth ignored Newell, mounted his bicycle, and rode away northbound on 6^th Street. At approximately 7:20 p.m., the officers began to pursue Mr. Saroeuth and called in the following flash: "Asian male, on a bike, blue shorts, white t-shirt, long hair, long hair, eastbound on Wolf." As Mr. Saroeuth began to flee, Officer Newell noticed that Mr. Saroeuth was holding his right pants pocket. While calling in Mr. Saroeuth's description, Officer Newell also observed a marked police vehicle approaching southbound on 6^th Street, just north of Mr. Saroeuth. Turning eastbound on Wolf Street, Mr. Saroeuth made a right away from the approaching vehicle. Mr. Saroeuth continually held his right pants pocket throughout the encounter.

Next, Mr. Saroeuth alighted from his bicycle and ran into the park, where he was confronted by Officers Newell and Padilla, who were approaching him from the south. Newell drew his service pistol, ordering Mr. Saroeuth to drop to the ground. At that point, Mr. Saroeuth immediately went down to the ground, putting his hands up. Officer Newell patted down Mr. Saroeuth and felt what he believed to be a firearm. Next, Officer Newell recovered from Mr. Saroeuth's right pants pocket a .38 caliber special revolver, loaded with five rounds of ammunition. After recovering the gun, radio communications between officers continued. A uniformed police sergeant from another location in the area inquired about whether there was a complainant or witnesses at the scene, to which Officer Newell replied "negative." Officer Newell then called his own police sergeant over radio, and was instructed by his sergeant to contact him via cell phone.

Prior to Mr. Saroeuth's arrest on June 22, 2010, Officer Newell and Padilla were aware of a previous shooting two days prior in the same neighborhood, on the 2300 block of South 5^th Street, one block east of the intersection of 6^th and Wolf Streets. In the incident, a male matching the defendant's description fired a gun at a passing vehicle.

II. April 4, 2011 Suppression Hearing

On February 25, 2011, Defendant filed a Motion to Suppress (Doc. 21) the firearm recovered by Officer Newell prior to Defendant's arrest on June 22, 2010. The Government filed a Response in Opposition thereto (Doc. 31) on April 1, 2011. The Court held a hearing and oral argument on the motion on April 4, 2011. During the hearing, the Government presented evidence in the form of an audio tape with the radio calls from the day of the incident in question, and the testimony of Officer Newell. Additionally, the Government entered three exhibits: (1) color photos illustrating the area where the June 22, 2010 encounter took place; (2) a photograph of the gun seized from Defendant on the date in question; and (3) a signed property receipt describing the gun and ammunition seized from Defendant.

III. Discussion

Defendant argues that the firearm recovered from Mr. Saroeuth by Officer Newell on June 22, 2010 must be suppressed because the search and seizure leading up to the recovery of this physical evidence violated Mr. Saroeuth's Fourth Amendment rights. There are three issues to be decided. First, the Court must determine at what point the officers' actions constituted a Terry stop. Secondly, the Court must determine whether the requisite reasonable suspicion existed for a Terry stop of Defendant, and lastly, whether there was probable cause for his arrest. For the reasons that follow, the Court finds that Defendant's Fourth Amendment rights were violated, and the physical evidence recovered from Mr. Saroeuth should be suppressed as fruit of the Defendant's unlawful arrest.

Defendant claims that Officer Newell's recovery of the loaded gun was in violation of his Fourth Amendment right against unlawful search and seizure because the initial pursuit of the Defendant constituted an unjustified Terry stop, as the officers lacked reasonable suspicion to pursue the Defendant, as the Defendant was merely exercising his lawful right to disengage from a casual encounter with the police. Furthermore, Defendant claims that Officer Newell lacked the probable cause needed to search Defendant's person and seize the loaded gun. Defendant pointed out that in the pursuit, Officer Newell curiously failed to mention in his flash that he suspected Defendant was armed. Defendant argues that this fact shows that the officers lacked the required reasonable suspicion to stop Defendant.

The Government disagrees, and argues that the officers' detention of Defendant did not begin until they caught up to Defendant in the park, and that officers had reasonable suspicion to stop Defendant because of his unprovoked flight, and then to frisk him due to his clutching of his right pants pocket as he fled. Through Officer Newell's twelve years of experience as a police officer at the time of the incident, he judged Defendant's actions as unusual and suspicious, particularly given Defendant's past agreeable nature during interactions with the same officers. Officer Newell's testimony characterized Defendant's actions at the scene as fleeing, stating that the Defendant proceeded to peddle "fast" from the scene in response to Officer Newell's approach and questioning upon arrival at the scene. Further, Officer Newell testified that given his experience as a narcotics officer who carried a gun in his pants pocket previously, he recognized that the way in which Defendant clutched his right pants pocket as he rode away from the police officers to be indicative of one attempting to prevent a gun from falling from his pants pocket. The Government contends that these facts, combined with the facts that the incident occurred in a high crime area, came as the result of an anonymous tip of a male with a gun, and involved Defendant's alleged unprovoked flight, provided sufficient reasonable suspicion for the officers to conduct an investigatory Terry stop.

Additionally, the Government argues that Officer Newell's search of Defendant's person constituted a typical frisk conducted during a Terry stop, and thus the lower requirement of reasonable suspicion should be applied to this action. Officer Newell testified that during the search, he proceeded directly to Defendant's right pant pocket, the suspicious area, to conduct the pat down. The Government further asserts that during the pat down of Defendant's right pocket, Officer Newell felt an object that he believed to be a firearm, and thus entered the pocket to retrieve the item. The Government argues that Officer Newell's actions rose to a level requiring probable cause only when Officer Newell entered Defendant's pants pocket, and that the officer possessed the requisite probable cause to do so based on the circumstances and the officer's detection of a deadly weapon as a result of the pat down.

Under Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court articulated an exception to the general rule that probable cause is required for a search and seizure not to be violative of an individual's Fourth Amendment Rights. Florida v. Royer, 460 U.S. 491 (1991) summarizes this exception and the legal standard for a Terry stop, stating "it is also clear that not all seizures of the person must be justified by probable cause to arrest for a crime. Prior to Terry v. Ohio, supra, any restraint on the person amounting to a seizure for the purposes of the Fourth Amendment was invalid unless justified by probable cause. Terry created a limited exception to this general rule: certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime." Id.. at 498 (citations omitted).

Under ...