United States v. Baley

• Decision Date: 04 December 2020
• Docket Number: CRIMINAL NO. 20-0124
• Citation: 505 F.Supp.3d 481
• Parties: UNITED STATES of America v. Haleem BALEY
• Court: U.S. District Court — Eastern District of Pennsylvania

505 F.Supp.3d 481

UNITED STATES of America

v.Haleem BALEY

CRIMINAL NO. 20-0124

United States District Court, E.D. Pennsylvania.

Filed December 4, 2020

Ashley Nicole Martin, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

Rossman D. Thompson, Elizabeth Toplin, Defender Association of Philadelphia, Eugene P. Tinari, Law Offices of Eugene P. Tinari, Philadelphia, PA, for Haleem Baley.

MEMORANDUM

CHAD F. KENNEY, District Judge On or about March 5, 2020, a grand jury returned an indictment charging Defendant Haleem Baley with possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1), and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).

Presently before the Court is Defendant's Motion to Suppress, in which he argues that the police who conducted a traffic stop of his car lacked reasonable suspicion to believe he was armed and dangerous and lacked probable cause to believe the car contained contraband. Accordingly, he seeks to suppress the firearm and cocaine that were retrieved from his vehicle and the $815 retrieved from his person. This Court held an evidentiary hearing on Baley's motion on September 28, 2020, at which Philadelphia Police Officers Daniel Levitt and Zach Zgleszewski testified.

I. Findings of Fact

After dark on the night of November 19, 2018, Philadelphia Police Officers Dan Levitt and Zach Zgleszewski were on routine patrol in North Philadelphia. Tr. at 8 - 11, 13¹ . Officer Levitt, who has now been a police officer for nearly 11 years, was driving, and Officer Zgleszewski, an officer for now nearly six years, was the recorder. Id. at 6, 51. At about 7:35 p.m., the marked patrol car was parked on 15th Street facing Indiana Avenue while Officer Zgleszewski was filling out paperwork. Id. at 51-52, 13. Officer Levitt noticed a Honda Accord traveling eastbound on Indiana pass the patrol car. Id. at 10, 52. Officer Levitt asked Officer Zgleszewski if the car had bad inspection stickers and noted he thought that they were expired. Id. at 10. Officer Zgleszewski said he had not noticed, id. , and the officers pulled out into the road to investigate, id. at 10, 52. Before or after they did so, Officer Zgleszewski noticed the car appeared to lack a license plate.² Id.

When the patrol car reached the Accord, the officers realized it did have a license plate, but the bulbs that were supposed to illuminate the plate were out. Id. at 10. Officer Levitt activated his lights and siren after both cars had turned to go northbound on Broad Street. Id. at 10, 12. Baley activated his turn signal and pulled over in a timely manner, and Officer Levitt noticed that Baley's turn signal was blinking rapidly. Id. at 10, 13, 32. The car stop occurred on Broad Street just south of Clearfield. Id. at 63. In the last three years, there had been multiple shootings and multiple homicides in the three-block radius of that location. Id. at 20-21.

Officer Levitt approached the car on the driver's side; Officer Zgleszewski, the passenger's. Id. at 13. Officer Levitt noticed packages and an "Amazon like" reflective vest in the back seat, which led him to believe Baley was a "working guy." Id. at 13-14. Baley rolled down the driver's side window, id. at 34, and asked why he was being pulled over, id. at 13. Officer Levitt explained that he stopped Baley for numerous reasons. Id. at 14. He "told him [he] stopped him for expired inspection stickers." He told Baley, "I thought you didn't have a license plate on the vehicle, but you do, [but] the lights are out." And as a "side note," Officer Levitt said, he "noticed when you put your turn signal on, it was blinking real[ly] fast. You probably have a turn signal out in the front." Id.

According to Officer Levitt's testimony, Baley then "got very frantic," said "oh, okay, no problem" and got "very upset." Id. Baley was acting "beyond nervous," id. at 33, and said, "you stopped me for a -- a blinking light ... That's what you stopped me for?" Id. Baley was "holding his hands out in front of him, his eyes were bulging, and he was looking from side to side." Id. According to Officer Zgleszewski, who was standing on the passenger's side of the car and could see but not hear Baley, Baley's hands were "literally shaking, almost trembling" and he was "breathing very heavy" like "when you're running." Id. at 54. As the conversation continued, Officer Zgleszewski noticed Baley become even more nervous, "frantic almost." Id. He was still breathing heavily and his hands were still shaking, but he began "looking left at Officer Levitt and then ... [would] quickly look over to" Officer Zgleszewski's side, and then back to Officer Levitt's side, then back to Officer Zgleszewski's side. Id.

On direct examination, Officer Levitt testified that he noticed a mixture of air freshener and a slight odor of marijuana when he approached the car. Id. at 15. He also testified that he saw ashes in the ashtray and a pump spray right next to it in the console. Id. He described the spray as "basically ... a marijuana spray" that he had seen numerous times in that area and that people use to cover the odor of marijuana. Id. at 16. On cross-examination, he explained that he did not immediately smell the marijuana when he first approached and spoke with Baley. Id. at 35. He also testified that, while he had to lean down to speak to Baley because of the traffic on Broad Street, his head was never stuck in the car. Id. And while the marijuana smell could not have come from the street, he could not tell whether it was coming from Baley or his vehicle. Id. Finally, he could not tell whether the odor was of burnt or raw marijuana because of the amount of air freshener masking the odor. Id.

Officer Levitt was then confronted with testimony he gave in a preliminary hearing in municipal court in the Philadelphia Court of Common Pleas. At that hearing, Officer Levitt had explained that he kind of stuck his head in the car after he smelled the air freshener and saw the pump mister:

"I ... told him, it's no big deal. Let me get your information. There was an odor of freshly sprayed air freshener in the car, like very fresh, and I looked over at the center console and there was a pump master -- mister ... It was sitting right there. I kind of stuck my head in the car. It was a very faint, I thought – believed, odor of marijuana. There was a lot of ashes in the ashtray, so I thought maybe he was just masking marijuana."

Tr. at 40 (emphasis added).

When confronted on cross-examination with that testimony, Officer Levitt explained that he "does[n't] think [he] meant [he] stuck [his] whole head in the car, but if that's what it says, that's what it says ... I have never stuck my whole head ..." Id. He also explained that he did not recall when he saw the ashes. Id. at 36. But when defense counsel asked Officer Levitt whether, "if the preliminary hearing notes indicate that it was after you stuck your head in head car that you observed the ashes and after you stuck your head in the car that you smelled the marijuana, you would have no quarrel with that, correct?," Officer Levitt said "[y]ou're absolutely right." Id. And in response to defense counsel's question that "when [he] was standing there and sticking [his] head in the car, [he was] investigating not only the car stop, but what [he] believed to be something else ... correct?", Officer Levitt answered "yes." Id. at 42.

The Court finds that Officer Levitt at least partially stuck his head in the car and that he did not smell marijuana or see ashes until he did so. The Court so finds because the preliminary hearing occurred only two months after the events in question, because Officer Levitt testified at the suppression hearing that he does not recall exactly where his head was or when he noticed the ashes, and because he conceded that the preliminary hearing notes would be correct.

Officer Levitt then asked Baley for his license and registration. Baley provided his driver's license, though his "hand was shaking violently." Id. at 17. Officer Levitt asked for Baley's registration, but Baley – without looking for it – said he did not have it. Id. Officer Levitt asked if Baley was even going to look, at which point Baley "kind of fake looked for it" by patting around. Id. Officer Levitt then asked if Baley was going to "look around again, look in the – glove compartment, something?" Id. According to Officer Levitt's testimony, Baley then "got real upset." Id. While Baley reached for the glove box with his right hand, he kept his face to the left – away from his hand and the glove box – and his eyes on Officer Levitt the whole time. Id. at 17, 19. Baley quickly opened and shut the glove box without looking toward it. Id. at 18. Baley then said "no, it's not in there" in a very shaky manner. Id. at 17, 20.

In the second or two the glove box was open, Officer Levitt noticed a "big white package" in the glove box that, while he was not sure, he believed "looked conducive with narcotics packaging." Id. at 18; 46.

Officer Zgleszewski corroborated Officer Levitt's testimony on this interaction. Officer Zgleszewski saw Baley "open[ ] the glove box for maybe a second and then quickly slam[ ] it shut, which was a red flag to [him]." Id. at 54. At that point, Officer Zgleszewski got Officer Levitt's attention and motioned to him to have Baley removed from the vehicle. Id. at 55.

Officer Levitt asked Baley to step out of the vehicle. Tr. at 21. Officer Levitt testified that he did so because he believed there were narcotics in the glove box and because Baley's "whole demeanor ... felt gun the whole time" and he was concerned for his safety. Id. at 21-23.

Both officers walked with Baley to the patrol car. Officer Levitt testified that Baley's manner of walking was "stiff," "almost robotic," and Officer Zgleszewski...