E.D.Pa.: Court just doesn’t buy officer’s story about seeing gun; suppressed

The court just doesn’t believe the officer’s testimony that he saw a gun to justify an engine compartment search under the automobile exception. The government’s fallback position that it was valid as a Terry frisk is also rejected for lack of reasonable suspicion. “This record is telling.” United States v. Talley, 2016 U.S. Dist. LEXIS 169386 (E.D.Pa. Dec. 7, 2016):

We find that Officer Morris did not see the butt of the firearm protruding from the black knit cap when Talley exited the Impala at 8th Street and Allegheny Avenue and placed the cap with its contents under the hood of the vehicle. We make this finding for several reasons. First, contrary to what Officer Morris said on the witness stand, it was not still light nearing dusk at 8 p.m. on the evening of May 6, 2016 when he allegedly observed the firearm. The climatological report from the National Climatic Data Center stated that sunset had occurred a full hour earlier at 7 p.m. Moreover, he testified that he was not aided by street lights. It is highly improbable that he saw one and a half inches of a black and silver butt of a gun in the dark from twenty to twenty-five feet away through a tinted window of a police vehicle, particularly when he had never seen a suspect hide a gun in this way. In addition, the cap was large enough to easily encompass the entire firearm. It was unlikely that part of the firearm was visible.

Further, Officer Morris did not call the police radio dispatch to report a person with a gun. Instead he used his personal cell phone to alert the uniform officers in the area. According to Officer Morris, he did so because he did not want many officers with lights and sirens to arrive in the area for fear of Talley fleeing or causing danger to the officers. We find this explanation implausible. We cannot believe that an officer would not use the police radio if he had actually observed a person with a firearm. Finally, when police radio was used, the incident was described in the record of the police dispatch as “investigate person” and not the higher priority “person with a weapon.” This record is telling.

While Officer Morris may have had a hunch or inchoate suspicion that Talley had a firearm, he did not in fact see a firearm at 8th Street and Allegheny Avenue. Thus, neither Officer Morris nor the other police officers had probable cause to open the hood of Talley’s vehicle to search for and seize the firearm from the engine compartment. The government’s reliance on the automobile exception under Maryland v. Dyson to excuse the need for a warrant fails. See 527 U.S. at 467.