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UNITED STATES v. AIKENS

June 3, 1998

UNITED STATES,
v.
ROBERT AIKENS, Defendant.



The opinion of the court was delivered by: FRIEDMAN

OPINION

 Defendant Robert Aikens, a prior convicted felon, is charged with unlawfully and knowingly receiving and possessing a firearm, a Taurus .38 caliber revolver, and unlawfully and knowingly receiving and possessing a .38 caliber ammunition, which had been possessed, shipped and transported in and affecting interstate and foreign commerce, in violation of 18 U.S.C. § 922(g)(1).

 This case is before the Court on motions to suppress tangible evidence and statements. The Court held an evidentiary hearing on May 7 and 11, 1998. Officer Tommy Miller testified for the government, and defendant Robert Aikens, Glenda Aikens (his mother), and Dr. Lanning Moldauer, an expert in the field of psychology, testified on behalf of the defendant.

 I. FINDINGS OF FACT

 A. The Arrest Of Mr. Aiken

 The facts surrounding Mr. Aiken's arrest are largely undisputed. In fact the only matter on which there is any factual dispute is whether one of the arresting officers hit or otherwise assaulted the defendant during the course of the arrest. Based on the testimony presented at the motions hearing, the Court finds the relevant facts to be as follows.

 On February 25, 1998 at approximately 5:10 p.m., Officer Tommy Miller and Officer Horn of the Metropolitan Police Department Gun Recovery Unit observed the defendant in the 1200 block of 18th Street Northeast standing in the middle of the street beside a pick-up truck. Both officers were in a green unmarked Chevy Lumina police car. Officer Allen Ramadan was in a separate white unmarked Chevy Lumina police car. Both unmarked police cars had blue police tags and a police siren light "bubble" on the dashboard. Officer Miller was in plain clothes, but was wearing a badge around his neck, a vest and a blue jacket with the words "POLICE" written on the front and "MPD" on the sleeve of the jacket. Officers Ramadan and Horn were similarly attired.

 Officer Miller saw the defendant standing in the middle of the street on the passenger side of the pick-up truck with his hand inside the window. Officers Horn and Miller drove towards the pick-up truck. The defendant turned and appeared to notice the unmarked police car coming in his direction. Officers Horn and Miller were approximately a half a block away when Officer Horn saw the defendant quickly back away from the pick-up truck. The pick-up truck proceeded to move toward the unmarked police car, as the defendant turned and walked quickly away in the opposite direction.

 Officer Horn stopped and got out of the vehicle and called after the defendant, stating, "Sir, sir," indicating that the defendant should stop. As Officer Horn yelled at the defendant, Officer Miller observed the defendant begin to run, grabbing his waist band with his right hand. Officer Miller then stated to the defendant, "Don't do it," meaning that the defendant should not pull out a gun. At that point, the officer had not seen a gun on defendant's person.

 As the defendant ran away from Officers Horn and Miller, Officer Miller began to give chase on foot. Officer Miller eventually observed the defendant make a left turn into an alley and then heard a loud thump, like metal hitting against metal. Officer Miller drew his gun and peeked cautiously around the corner into the alley. As Officer Miller turned the corner, he observed defendant in the alley just beyond a metal trash bin or can, still running.

 Officer Miller then noticed that Officer Ramadan had parked his vehicle at the other end of the alley. Ramadan got out of his vehicle and ran towards the defendant, yelling "Police, stop"; the defendant turned and ran in the direction of Officer Miller. At that point, Officer Miller told the defendant to "give it up." The defendant complied and put his hands in the air. According to Officer Miller, Officer Ramadan reached the defendant first and grabbed him from behind and "tackled" him to the ground; Officer Miller put his knee on defendant's back to hand cuff him. Officer Miller testified that the defendant then made a spontaneous remark, stating, "Just kill me," as he was being placed under arrest. Officer Miller later learned that the defendant had recently been released from prison and did not want to go back and that his girlfriend just had a baby. At the time of the arrest, Officer Miller testified that the defendant was upset and crying.

 The defendant testified that Officer Ramadan did not simply tackle him but struck him with his fist and kicked him while he was on the ground; that Officer Ramadan came towards him with his gun drawn and hit him with his free hand on the right side of his head as he proceeded to put his hands in the air. The defendant asked why he was being hit. By contrast, Officer Miller testified that when the chase ended, there was a brief five-second tussle as both officers were trying to get the defendant's arms behind his back to handcuff him. He testified that he did not see Officer Ramadan hit or kick the defendant, but that he was not focusing on Officer Ramadan but instead was concentrating on the defendant's hands in order to get the cuffs on. There is no evidence other than defendant's testimony that he was hit and kicked by Officer Ramadan, and the Court finds Officer Miller's testimony the more credible. *fn1"

 After the defendant was placed under arrest, Officer Ramadan recovered a loaded .38 caliber revolver from the trash bin in the alley. The defendant's family -- his father, brother, girlfriend and baby -- came into the alley. The defendant testified that he told his family members that he had been hit by one of the police officers, but neither Officer Miller nor anyone else testified that the defendant made such a statement to his family. Officer Miller allowed the defendant to hug his father and take a couple puffs from his father's cigarette to permit the defendant to calm down while waiting for the transport vehicle.

 Officer Miller testified that no questions were asked of the defendant at the scene and no Miranda rights were given. After his arrest, the defendant was taken to the Major Narcotics Branch. The defendant testified that during the transport and processing he was not mistreated in any way by any of the police officers with whom he came in contact.

 B. Defendant's Statement

 Officer Miller testified that he and Officer Ramadan arrived at the Major Narcotics Branch after 6:00 p.m. The defendant was already in a cell and appeared to be calm but still emotionally upset. Soon thereafter, the defendant was taken out of his cell and instructed to sit at a table in a small interview area furnished with two chairs and a table that was bolted against the wall. Officer Miller testified that ...


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