Federal judge in Phila. grants motion to suppress gun charge against city man

Jon Campisi Dec. 13, 2011, 1:53pm

A federal judge in Philadelphia has upheld a motion to suppress an illegal gun charge that had been lodged against a city resident by police during a traffic stop earlier this year.

U.S. District Judge Berle M. Schiller granted a motion made by Philadelphia resident Wheeler Zamichieli that sought to suppress physical evidence and statements he made to police stemming from a Feb. 20 car stop in the city.

In the ruling, which follows a hearing that was held late last month concerning the matter, Schiller concluded that the gun underlying the felon in possession of a weapon charge against Zamichieli, a .38 caliber revolver, was obtained through an illegal search by Philadelphia police officers.

“Because the search was conducted in violation of Zamichieli’s Fourth Amendment rights, all evidence obtained in connection with the search, including the gun and any statements made by Zamichieli following the search, must be suppressed as fruit of the poisonous tree,” the judge wrote in the ruling.

The case stemmed from an arrest made on Zamichieli following a traffic stop at the intersection of Wister Street and West Nedro Avenue last winter.

Officers William Andrews and Melvin Victor were driving back to their district, after having responded to several shootings in an adjacent district, when they saw a red Chevrolet Impala speed through a stop sign. The car allegedly almost struck the officers’ patrol car.

The officers then followed the Impala, and pulled it over after they witnessed the vehicle turn the wrong way down a one-way street.

The officers had stated that this was a regular traffic stop, and in no way was related to the reported shootings that had occurred earlier, and to which they had responded.

From there, the versions of the story vary depending upon who’s telling it. The officers testified during last month’s hearing that Zamichieli turned on the car’s interior light, placed both of his arms on the window frame of the car and asked the officers why he had been pulled over.

Andrews testified that he then scanned the interior of the vehicle and spotted the revolver sitting in plain view on the front passenger seat.

Zamichieli was then removed from his vehicle while the officers investigated the gun, which contained five spent shell casings.

At the hearing, Zamichieli had testified that the gun wasn’t in plain view, but rather was located out of view, under the front passenger seat.

Zamichieli also testified that the officers ordered him from the vehicle at gunpoint before they ever conducted a search of the vehicle.

Officer Victor also testified that he did not ask for Zamichieli’s identifying documents while Zamichieli was still seated in the car.

In the ruling, Schiller concluded that while officers were within their power to initiate a traffic stop on Zamichieli because they had observed traffic infractions, the search of the vehicle itself, and the subsequent seizure of the firearm, was unconstitutional.

The judge ruled that the officers’ version of the story is “implausible,” concluding that there would be no reason for Zamichieli to turn on the vehicle’s dome light when he had already opened the window to speak with the officer, nor was it likely that he would have done so with a gun sitting in plain view on the front passenger seat, the judge concluded.

“Without the dome light on, it would be nearly impossible for Officer Andrews to see a gun on the front seat through a closed, tinted window in the dark of night,” the judge wrote. “Because the gun was not in plain view, the only way for the officers to find it was to search the vehicle. Absent an applicable exception, the officers were not permitted to conduct a warrantless search of the Impala without probable cause to believe it contained evidence of criminal activity. The Government has not met its burden of showing that the search was reasonable.”

The judge ruled that because Zamichieli was not arrested for traffic violations, but rather for carrying a firearm without a license, the officers would have only had probable cause to arrest Zamichieli for any firearm offense after searching the vehicle.

“Therefore, the exception to the probable cause requirement for searches incident to arrest does not apply because there was no probable cause to arrest prior to the search,” the judge wrote.

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