United States v. Scott

• Decision Date: 30 October 2019
• Docket Number: No. 17-cr-00151-2,CRIMINAL ACTION No. 17-cr-00151-1,17-cr-00151-2
• Parties: UNITED STATES of America, v. Joel Lee Quentin SCOTT and Jonathan Maurice Scott, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

420 F.Supp.3d 295

UNITED STATES of America,

v.Joel Lee Quentin SCOTT and Jonathan Maurice Scott, Defendants.

CRIMINAL ACTION No. 17-cr-00151-1

No. 17-cr-00151-2

United States District Court, E.D. Pennsylvania.

Filed October 30, 2019

Sarah T. Damiani, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

MEMORANDUM AND ORDER

JOYNER, District Judge.

BACKGROUND ¹

Defendants Jonathan Scott and Joel Scott were charged with armed robbery in violation of 18 U.S.C. § 2113(a) and (d), and with Using, Carrying, Brandishing, and aiding and abetting the brandishing of, a Firearm During and in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c)(1). See Doc. No. 1, Indictment, Counts I and II. Both Defendants moved to suppress physical evidence, identification evidence, and statements derived as a result of a warrantless stop and search that led to the discovery of approximately $1800 in U.S. currency and confessions by both Defendants. After consideration of Defendant Joel Scott's Motion to Suppress Out-of-Court Identification (Doc. No. 38) and his Motion to Suppress Physical Evidence, Identification Evidence, and Statements (Doc. No. 39); as well as Defendant Jonathan Scott's Joinder thereto (Doc. No. 43), and following a suppression hearing with oral argument (Doc. No. 77), this Court denied Defendants' motions to suppress. We orally held that the physical evidence, identification evidence, and statements would be admissible at trial and that we would further supplement the record with findings of fact and conclusions of law which we neglected to do. See Doc. Nos. 57 and 58. Defendants then pled guilty to Counts I and II of the indictment. Their plea agreements reserved their right to appeal this Court's denial of their pre-trial motion to suppress. See Doc. Nos. 64 and 84 at ¶12(b)(4). After appealing our denial of their pre-trial motions to suppress, the Third Circuit vacated this Court's judgment as to Defendant Joel Scott and remanded his case for findings of fact and conclusions of law. See Doc. No. 115; Third Circuit No. 18-cr-1157. We find as follows with regard to both Defendants, Joel Scott and Jonathan Scott:

I. Findings of Fact

A. Armed Robbery at BB&T Bank Branch at 1201 Buck Road

At approximately 4:12 p.m. on December 29, 2016, two men, one visibly armed with a gun that was drawn and pointed, entered the BB&T Bank Branch at 1201 Buck Road in Feasterville, Pennsylvania. The armed robber was wearing a brown hooded sweatshirt, a black mask, black pants, and white sneakers with red trim. He jumped over the bank teller's counter and ordered the teller at gunpoint to give him money. The teller placed approximately $1,800 in U.S. cash into a green money bag and handed it to the gunman. He told her to kneel on the floor and she kept her head down during the remainder of the robbery.

Meanwhile, the branch manager, "J.G.," saw the gunman's movements through the transparent glass walls of her office, where she was seated between 20 and 25 feet away from the teller's counter. She noticed the gunman's build as the shorter of the two robbers. While the gunman demanded that the teller give him money from the cash drawer, the taller of the two robbers approached J.G.'s office, where she sat with a client while she was on the phone with an employee from another branch of the bank. As the taller man approached, J.G. was able to reach down and activate the hold up alarm. The taller robber walked into J.G.'s office, stood approximately six feet from her, then moved in closer to three feet. When J.G. stood up, he told her not to move and to shut-up, pointing his left hand at her face. The taller man stayed in J.G.'s office until the shorter man with the gun stole the money and started to exit the bank. In her 911 call, J.G. reported that the robbers left the bank on foot.²

At approximately 4:13 p.m., the Lower Southampton Township Police Department ("LSTPD") received a call over the police radio regarding an armed bank robbery in progress at the BB&T Bank at 1201 Buck Road in Feasterville. The call described two perpetrators who were both black males. The first male was described as possessing a gun, wearing a brown hooded sweatshirt, and a mask over his face. The second male was described as wearing a black hooded sweatshirt and a turquoise scarf over his face.

B. Corporal Dougherty Stops Jonathan and Joel Scott on Penn Gate Circle Four Minutes After the Armed Robbery

At approximately 4:16 p.m. on the day of the robbery, Officer Dougherty ("Dougherty"), a Corporal with seventeen years of experience working for the LSTPD, responded to the radio dispatch reporting the armed robbery taking place at the BB&T bank branch at 1201 Buck Road. He was driving a marked police vehicle and was in full uniform (badge, vest, and duty firearm). At the suppression hearing, Dougherty testified that he was "extremely familiar" with the area since he had "worked there [his] whole career." Supp. Hear., Doc. No. 77 at 8. Officer DiLello ("DiLello") also responded to the dispatch. Once he had spoken with a witness to the robbery, branch manager J.G., DiLello sent a second description of the suspects over the police radio: "I sent over the Bucks County radio net that it was, in fact, two black males, and a handgun was, in fact, displayed." Id. at 141.

Within three minutes of the initial dispatch call, seeing that DiLello and Officer Engle ("Engle") had already arrived at the bank, Dougherty proceeded to drive in his marked police vehicle and full uniform (badge, vest, and duty firearm) off of Buck Road, where the bank is located, to the neighborhood directly behind the bank, onto Penn Gate Circle. Penn Gate Circle is a residential, dead end street, which also connects to Heritage Circle, another dead end street. Buck Road is the only street that is an entrance and exit from Penn Gate Circle. At the suppression hearing, Dougherty testified that the area does not get much foot or car traffic, aside from people who live there, "it's not a neighborhood that you could walk through and cut through. You would actually have to go through someone's yard if you wanted to get to another street," and "only the people that live in that neighborhood would have reason to drive there." Id. at 11.³

When Dougherty's marked police vehicle entered Penn Gate Circle he "immediately observed two black males walking on Heritage Circle." Id. He testified that the men "glanced over in my direction and ... changed their direction ... their bodies were motioning because they wanted to go right onto Penn Gate but when they saw me, they changed their direction to kind of go left onto Penn Gate from Heritage." Id. Dougherty continued to follow the men "at an extremely close distance. I actually put my bumper up only a couple feet off of the back of them. They continued to walk [in the middle of the street] and ignore my presence." Id. at 14-15.

The weather on December 29, 2016, was cold and damp, approximately "in the 30s." Id. at 16. Dougherty observed the men's clothing as he pulled up behind them. The taller of the two men was wearing a coat. The shorter subject was wearing a short-sleeved T-shirt. Neither man was wearing a scarf or hat.

Since he was alone, Dougherty called for backup. He said on the police radio that he had two subjects who matched the description of the individuals on the initial radio calls reporting the armed robbery. Dougherty continued to follow the men in his police vehicle closely as they turned toward the interior of the neighborhood. He put his car in park and exited the vehicle. He drew his service weapon and ordered both men to stop and put their hands up. The men immediately complied and turned around to face him. They were approximately 125 yards away from the bank. He drew his service weapon for safety because one of the suspects was reported to be armed, id. at 19, but kept it down, not pointed at the men. Id. at 20.

At that point, approximately five minutes after the robbery, and responding to Dougherty's radio call that he had stopped and detained two subjects, Sergeant Montalbano ("Montalbano") and Officer Engle ("Engle") arrived at the scene. DiLello arrived shortly thereafter. At the direction of Dougherty, uncertain whether the men were armed, Engle placed Jonathan Scott in handcuffs and Montalbano placed Joel Scott in handcuffs. Id. at 22. Dougherty then holstered his weapon.

C. Frisk by Sergeant Montalbano, Corporal Dougherty, Officer Engle, and Officer DiLello

The officers proceeded to conduct a pat-down search of the men. Engle began the pat-down search of Jonathan Scott. Montalbano began patting down Joel Scott. While the pat-down was ongoing, the officers asked the two subjects questions pertaining to why they were in the area. Jonathan Scott responded that his car had broken down. Id. at 22; Def. Mot. at ¶12. The record is unclear as to whether Montalbano saw or felt "a wad of cash in Joel [Scott's] front right pocket." Id. at 23. Dougherty testified that during the pat-down, Montalbano indicated to him by pointing and saying, "[h]e's got some money in his pocket." Id. DiLello's testimony confirmed this: "As we were doing the weapon search on [Joel Scott], there was a large bulge in the pocket of the shorter male." Id. at 144.

Dougherty took over the pat-down search of Joel Scott. "I could feel a considerable amount of cash in his pocket, like a stash of cash." Id. Dougherty squeezed the object in Joel Scott's pocket to rule out the possibility that a sharp weapon was behind it. He was confirming first, "that it was a wad of cash; and [second], there was nothing that could poke me as I go and get it." Id. at 83. He asked Joel Scott how much money he thought he had in his pocket. Joel Scott said he thought he "had a few dollars." Id. The officers proceeded to remove $789 in cash from Joel Scott's front right pocket. As they continued the pat-down, id. at 52, Dougherty felt "another significant lump in [Joel...