The opinion of the court was delivered by: Greenaway, Jr., U.S.D.J.
This matter comes before this Court on defendant Ronald Crandell's ("Defendant" or "Crandell") motion to suppress evidence recovered in connection with a stop and frisk conducted on July 15, 2005. The questions now before this Court, as a result of the Third Circuit's remand, are whether Crandell was seized within the meaning of the Fourth Amendment, and, if he was not seized, whether he consented to a frisk. This Court finds that Crandell was seized. The stop and frisk violated Crandell's Fourth Amendment right to be free from unreasonable searches and seizures. The fruits of the stop and frisk, namely a handgun, were tainted by the unconstitutionality of the stop. Defendant's motion to suppress the evidence seized after the stop is granted.
In an Opinion dated September 7, 2007, this Court granted Defendant's motion to suppress evidence recovered in connection with a stop and frisk, which occurred on July 15, 2005.*fn1 In reaching its conclusion, this Court presumed that Defendant had been seized within the meaning of the Fourth Amendment and then went on to conduct an analysis of the anonymous tip evidence which led to the confrontation between police officers and Defendant. This Court found that the anonymous tip did not provide officers with reasonable suspicion to conduct a Terry stop*fn2 and thus excluded the gun evidence obtained as a result of the stop and frisk. The Government appealed this Court's ruling. The Third Circuit held that this Court "should have considered whether the encounter was consensual at the outset instead of presuming that the police seized Crandell." United States v. Crandell, 554 F.3d 79, 85 (3d Cir. 2009). The Court of Appeals vacated this Court's decision and remanded the case to this Court.
The task now before this Court is to determine, based on Supreme Court and Third Circuit precedents, whether Crandell was seized within the meaning of the Fourth Amendment.*fn3
This Court conducted a suppression hearing on November 28, 2006. Two of the three officers who were involved in the confrontation between police and Crandell on July 15, 2005 testified. Based on the testimony of those two officers, Avbend Drishti ("Drishti") and Angel Valez ("Valez"), the facts adduced are as follows:
On July 15, 2005, Officers Drishti, Valez, and Jimmy Miller were on patrol in the Hoboken Housing Projects. (Tr. of Trial Proceedings, Nov. 28, 2006, Suppression Hr'g [hereinafter "Tr."] 5:8-6:1, 7:7-19.) Officer Drishti described the Housing Projects as approximately twenty buildings located in an area that measures four blocks by two blocks. (Tr. 7:12-24.) While on patrol, Officer Drishti received a call on his cellular phone from dispatch regarding an anonymous tip. (Tr. 6:2-7.) Drishti testified that the call described a "male, black male, with dreadlocks with blonde tips, wearing a tan shirt and blue jeans  with a handgun in the small of his back." (Tr. 6:7-10.) Officer Drishti received the call, while he and Officers Valez and Miller were standing at the corner of Fourth Street and Jackson Street. (Tr. 8:7-9.) Drishti testified that upon hearing the tip, he immediately thought of Defendant, Ronald "Ricky" Crandell. (Tr. 7:5-11.)
Drishti relayed the tipster's information to Officers Valez and Miller and the three officers immediately proceeded to the intersection of Fifth and Jackson. (Tr. 8:15-9:5, 43:7-12.) They chose to proceed to this area because, according to Officer Drishti, "we [knew] Mr. Crandell frequents that area a lot." (Tr. 8:19-20.) Officer Drishti added, and Officer Valez agreed, however, that they also chose the area because it is known as a "high-crime area." (Tr. 8:19-23, 41:8-25.)
The officers searched unsuccessfully for Defendant at this location. (Tr. 9:7-8.) The officers crossed over Fifth Street, back toward Fourth Street. (Tr. 9:9-19, 20:21-24, 42:8-11.) As they reached the corner of Fifth and Jackson, after crossing Fifth Street, they saw Defendant walking toward them. (Tr. 9:19-21.)
Officer Drishti testified that Defendant, upon seeing the officers, did not react. Defendant simply kept walking toward them, until Officer Valez stopped him about halfway between Fourth Street and Fifth Street. (Tr. 21:1-3, 44:3-5.) Officers Drishti and Miller also approached Defendant, on either side of Officer Valez, forming a semi-circle. (Tr. 10:14-15, 26:4-14.) All three officers were uniformed, and stood about two feet from Defendant. (Tr. 51:25-52:2, 26:17-24, 52:24-53:7.)
Officers Drishti and Valez testified that Valez spoke to Defendant. The testimony of Officers Drishti and Valez differs slightly regarding what was said to Defendant and the order in which it was said.*fn4 Valez testified: "[A]s [Defendant] walked towards us, I stopped him... and I told him I received information that [he] might have a weapon on [him] and I wanted to give [him] a pat down for our protection[.] I told [Defendant] he was free to leave at any time." (Tr. 44:3-8.) Officer Valez testified that Defendant "put his arms up." (Tr. 44:12.)
Officer Valez testified that after Crandell put his arms up, he began the pat down. (Tr. 44:12-13.) Valez testified that "as I was patting [Defendant] down, he hit my arm, he turned around and he ran [and] the weapon fell from the back of his pants." (Tr. 44:13-14.) Officer Miller secured the weapon. (Tr. 12:9-12.) Officers Drishti and Valez gave chase, following Defendant into the building at 320 Jackson Street. (Tr. 12:12-20.) Officer Drishti testified that they proceeded immediately to the roof and searched every apartment on the top two floors before returning to the street. (Tr. 31:9-32:24.)
The officers then returned to headquarters and placed the handgun in evidence and issued six warrants for the arrest of Defendant. (Tr. 13:10-12.) Officer Drishti wrote the police report summarizing the events. (Tr. 13:16-17.) Defendant was subsequently apprehended by a bounty hunter and turned in to police headquarters. (Tr. 14:14-17.)
The Supreme Court of the United States and the Court of Appeals for the Third Circuit have each spoken on myriad Fourth Amendment issues; indeed, each has commented on the issue at hand, i.e., when, and under what circumstances, a seizure of a suspect occurs. In its opinion remanding this matter, the Third Circuit specifically mentioned two Supreme Court precedents-Florida v. Bostick, 501 U.S. 429 (1991) and United States v. Drayton, 536 U.S. 194 (2002)-that this Court should incorporate into its analysis.
The Supreme Court has spoken definitively on what constitutes a seizure-"[w]e adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise terminate the encounter." Bostick, 501 U.S. at 439.
In Bostick, two uniformed officers boarded a bus bound for Atlanta from Miami during a stopover in Fort Lauderdale. Id. at 431. "Eying the passengers, the officers, admittedly without articulable suspicion, picked out the defendant and asked to inspect his ticket and identification.
The defendant's ticket matched his identification and both were immediately returned to him as unremarkable. However, the two police officers persisted and explained their presence as narcotics agents on the lookout for illegal drugs. In pursuit of that aim, they then requested the defendant's consent to search his luggage." Id. at 431-32.
The subsequent search proved to be fruitful. The defendant, Bostick, was arrested and charged with trafficking cocaine. Id. at 432. He moved to "suppress the cocaine on the grounds that it had been seized in violation of his Fourth Amendment rights." Id. The Florida Supreme Court reversed the decision of the state appellate court, which had held that Bostick had not been seized within the meaning of the Fourth Amendment. In reversing, the Florida Supreme Court "reasoned that Bostick had been seized because a reasonable passenger in his situation would not have felt free to leave the bus to avoid questioning by the police." Id. at 433. The Florida Supreme Court adopted a per se rule holding that random sweeps of buses to search for drugs were unconstitutional. Id.
The Supreme Court of the United States found that the Florida Supreme Court erred in focusing on whether Bostick was 'free to leave' rather than on the principle underlying those words. Id. at 435. The Court explained, "when police attempt to question a person who is walking down the street or through an airport lobby, it makes sense to inquire whether a reasonable person would feel free to continue walking. But when the person is seated on a bus and has no desire to leave, the degree to which a reasonable person would feel that he could leave is not an accurate measure of the coercive effect of the encounter." Id. at 435-36. The Court went on to say that "Bostick was a passenger on a bus that was scheduled to depart. He would not have felt free to leave the bus even if the police had not been present. Bostick's movements were 'confined' in a sense, but this was the natural result of his decision to take the bus, it says nothing about whether or not the police conduct at issue was coercive." Id.
The Court reasoned that Bostick's freedom of movement was restricted by a factor independent of police conduct: his being a passenger on a bus. Id. Accordingly, the Court held the 'free to leave' analysis was inapposite. The Court said that the "appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.... [T]he crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct 'would have ...