United States v. Bey 3rdCIR 21DEC2018

At about 10:00 PM, Philadelphia police officers pulled a car over in a high-crime area for failing to come to a complete stop. There were three people in the car and each produced identification.  A warrant check revealed no outstanding warrants, but the officers smelled marijuana and saw marijuana residue on the floorboard and they removed the three men and planned to search the car.  After frisking the rear seat passenger, officers noticed a firearm in the back seat. When they started to arrest him, he fled on foot with officers in chase. Shortly thereafter, the front passenger fled on foot as well. Officers provided a description of the fleeing passenger (a Black male, approximately 6’0”-6’1”, 160-170 pounds, wearing dark blue pants and a red hoodie and headed west from their location, and a BOLO (including a picture) was issued.  Less than a minute after seeing the photo on their MDT, two other officers saw a person they thought was the suspect but it turned out he was the defendant Bey.  Bey, who has a beard and weighs 200 pounds, was wearing black sweat pants and a read puffer jacket with hood.  The officers saw him leave the café and with weapons drawn they ordered him on the ground and they recovered a firearm.  After realizing he was not the person they were looking for, Bey was arrested for being a felon in possession of a firearm. At trial, Bey sought to have the firearm suppressed, arguing that the officers saw a picture of the fleeing passenger and therefore should have known he was not the right person when he turned to face them.

The District Court denied the motion to suppress, holding that the reasonable suspicion did not dissipate when Bey turned to face them and they could see his face. The Third Circuit disagreed stating it was the Government’s burden to prove that Bey did sufficiently resemble Robinson to justify the continued detention, and the Government had to do so by a preponderance of the evidence. Based on the available evidence – the photograph that the government did submit –“ the differences between the two men are as obvious as they are significant.” The court held that: “because officers recovered the gun after they had a good look at Bey and should have known that he was not Robinson, the district court should have granted the motion to suppress.”

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