Gun cases tossed out, suspects walk out

Judge Paula A. Patrick
Judge Paula A. Patrick

A Gun Court judge's rulings have forced dismissal of dozens of cases.

Posted: December 19, 2010

To police and prosecutors, they were all good gun pinches.

In one case, police spotted two men in a car prowling a West Philadelphia neighborhood - both wearing bandannas masking their faces up to their noses. After officers got the men out of their Pontiac, they found two handguns under the front seat.

In another, officers in Kensington tackled a man who pulled a handgun after they moved in to break up a suspected drug-sales operation. Police recovered a .45-caliber handgun.

In a third, a North Philadelphia man dumped two guns as he ran from police. He gave a mighty heave to a Tec-9 handgun, putting it up on a roof. The other tossed gun, also a 9mm, shattered the windshield of a parked truck.

Slam-dunk arrests?

Not according to Common Pleas Court Judge Paula A. Patrick.

In all three cases, Patrick ruled the police conduct unlawful and said prosecutors could not use the seized guns as evidence. That effectively doomed any chance at conviction.

The District Attorney's Office is appealing those decisions and two dozen more like them by the judge.

What prosecutors find worrisome is that this pattern has emerged over the last year as Patrick has presided over Philadelphia Gun Court, a special tribunal founded in 2005 to combat the city's unusually virulent gun culture.

The main charge against Gun Court defendants is illegal firearms possession. The idea is to crack down early before criminals escalate to even more serious gun crimes.

Among America's largest cities, Philadelphia has the highest rates for gunpoint homicides, robberies, and assaults, FBI figures show. In the last comparative count, 84 percent of Philadelphia homicide victims were killed with firearms; that was the highest use of guns as the weapon of choice for homicide in the nation's top 10 cities.

Since taking charge of Gun Court almost a year ago, prosecutors now contend in appeals, Patrick has repeatedly misapplied the law on firearms possession, prompting a record number of appeals of her decisions by the D.A.'s Office.

The 27 cases prosecutors are appealing represent a sharp spike compared with earlier years. They appealed only about five such rulings by the previous two Common Pleas Court judges assigned to annual rotations through Gun Court, according to an Inquirer analysis of court appellate records.

Patrick, 42, a former civil and criminal defense lawyer elected to the bench in 2003, declined a request for an interview.

Samuel Stretton, a veteran defense lawyer who serves as Patrick's personal attorney, spoke on her behalf. He noted that she had adjudicated about 1,050 gun cases so far.

Against such a caseload, he said, 27 appeals by prosecutors was "totally insignificant."

"She is really knowledgeable on criminal law. She knows what she can and can't do," Stretton said. "And she calls them as she sees it. It may be that she suppresses more than another judge who doesn't know the law as well as she does, and the nuances."

D. Webster Keogh, Patrick's boss as the administrative judge of Common Pleas Court, said, "I think she's done an excellent job."

Overall figures on conviction rates under Patrick were not available.

Keogh said the increase in suppressions might merely be a logical outcome in the surge of police searches on the street. Philadelphia police have more than doubled their annual count of "stop-and-frisks" in recent years - a trend challenged by civil-liberties lawyers in a lawsuit last month.

Patrick, in opinions and remarks from the bench, has faulted police for making arrests based on mere hunches or weakly founded suspicions.

"While certain activity may seen generally suspicious or 'fishy,' it does not necessarily equate to 'reasonable suspicion' for purposes of search-and-seizure law," the judge said in two opinions, quoting a 2001 state appellate court ruling.

And if the police lack good cause to approach a suspect, she concluded, any guns suspects dump while fleeing cannot be used as evidence against them. "Abandonment is coerced by unlawful police action," she wrote.

Historically liberal rulings

Though prosecutors contend that Patrick has been unusually pro-defense in suppressing evidence in these cases, they also acknowledge that police and prosecutors toil in a hostile Pennsylvania legal environment in which key appellate rulings restrict searches on the street.

"Historically, the Pennsylvania Supreme Court has been one of the most liberal courts on search-and-seizure law among the states," said Duquesne University law professor Bruce Ledewitz, an expert on the state's appellate courts.

In one of several key opinions on the matter written by the late Justice Ralph Cappy, the top public defender in the Pittsburgh area before he became a justice, the state Supreme Court ruled that prosecutors cannot use discarded guns or drugs if the original approach of police lacked legal justification.

In contrast, the U.S. Supreme Court has ruled that it was fair game for prosecutors to use tossed-away items as evidence. The high court said suspects fleeing police had never been legally "seized" in the first place and thus had no legal "search-and-seizure" protections regarding anything they dumped.

Pennsylvania's current chief justice, Ronald D. Castille, a former Philadelphia district attorney, wrote a blistering dissent to Cappy's 1996 decision.

"Our citizens have an absolute interest in preserving their right to be free from unwarranted intrusion by police officers," Castille wrote.

"But our citizens also have the competing right to be free from those who roam the streets, destroy the neighborhood, and threaten the fabric of our lives and the public safety with contraband and weapons on public streets and byways."

Last year, Philadelphia prosecutor Hugh J. Burns Jr., chief of the appeals unit for the D.A.'s Office, asked the state Supreme Court to rethink the issue and permit the use of discarded weapons or drugs as evidence.

State precedent, Burns wrote, "rewards flight [by suspects] and puts the public and the police at risk."

The high court has not yet decided whether it will consider the motion.

Defense lawyers say the Pennsylvania precedent protects not just defendants, but also those who are stopped and questioned by police for no good reason and who may never be charged.

In the new federal lawsuit challenging Mayor Nutter's "stop-and-frisk" program, attorney David Rudovsky noted that Philadelphia police stopped 250,000 pedestrians last year, but that only 8 percent of the frisks led to arrests.

"I have represented hundreds of persons who have been stopped, frisked, and humiliated by officers who had no cause to do so," Rudovsky has written.

'Recommended' rating

When Judge Patrick launched an unsuccessful bid for state Superior Court last year, the Pennsylvania Bar Association gave her a "recommended" rating, one step below its "highly recommended" label.

The association said lawyers found her to be fair, hardworking, and well-organized. Other judges deemed her "extremely knowledgeable about the law," the group said.

After her election to Philadelphia Common Pleas Court in 2003 as a Democrat, Patrick heard juvenile crime and custody cases until she was assigned the Gun Court position for 2010.

In that role, she has been a productive judge in Courtroom 604 of the Criminal Justice Center across from City Hall, resolving about 100 more cases so far than the number disposed of annually by predecessors.

Stretton, her spokesman, said Patrick expected to serve another year on Gun Court. That would make her the first judge to serve for more than a year in the position among the six so far assigned to it.

In their 27 appeals to state Superior Court - none of which has been ruled on - prosecutors seek to uphold gun arrests clustered mainly between March 2009 and last May.

In about a third of the arrests, the suspects dumped guns as they ran. In about another third, police found the firearms in suspects' cars. In the rest, police retrieved them in body searches or the guns simply fell out of suspects' clothes.

The seized guns included several with obliterated serial numbers, and ran the gamut from old-fashioned revolvers to a Glock with a 29-round magazine. One was loaded with explosive hollow-point bullets.

Here is a look at some of the cases, based on court documents, police records and testimony:

Bandannas and guns

In the "bandanna case," police seized a loaded Manurhin .380 and a loaded Smith & Wesson 9mm from under the seats of the Pontiac.

According to court transcripts and arrest records, the arrest unfolded about 10 p.m. Aug. 25, 2009. Police initially got onto the suspects after an anonymous caller reported that a black Pontiac with heavily tinted windows had been circling the area around 54th and Catharine Streets in West Philadelphia for more than an hour.

Officers spotted a Pontiac matching the description parked in the 5400 block of Catharine and pulled up to face it, shining a light on the front seat.

Peering through the windshield - the only one without a dark tint - they saw something both humorous and harrowing: two men trying to pull bandannas off their faces but having trouble because the cloths were apparently too tightly knotted.

They were fidgeting, too, in a way that police later testified suggested they might have been kicking guns under the front seat.

Police locked the two men, Norman Mapp and Joseph Sadar, in the back of their cruiser and searched the Pontiac. The 9mm was found under Sadar's seat - the driver's - and the .380 under Mapp's.

Mapp, then 22, was charged with prohibited possession of a gun by someone with a criminal record. His record includes convictions for drug dealing and assault, as well as acquittals or withdrawals on charges of narcotics sales, gunpoint robbery, and resisting arrest.

Sadar, then 23, whose record consisted of one previous gun arrest, was charged with carrying a gun without a license and illegally carrying a gun in public.

After a hearing in April, Patrick suppressed the use of the guns as evidence against both men, who are on bail while that ruling is on appeal.

Prosecutors maintain that the anonymous report, the matching description of the car, and the bandannas gave police ample legal reason to stop the car and search it, even without a warrant. Patrick did not state her reasoning in open court, and she has yet to file a written opinion in the case.

In an interview last week, defense lawyer Scott DiClaudio, who represented Sadar, said the judge made the right decision.

For one thing, DiClaudio said, the bandannas were not necessarily menacing.

"They could be doing a lot of things. They could be joking around. They could have the things on their heads joking around. I do that with my daughter all the time," he said. "Just because they were wearing a bandanna in and of itself doesn't mean they were going to commit a crime."

Moreover, DiClaudio said, police had no right to stop the car to peer into it. He said the 911 call was too thin a justification for stopping the Pontiac.

Though acknowledging that in some cases police may search cars without a warrant, he said that in this case the police should have sought a warrant first from a judge.

"They skipped a step," he said. "They made themselves the judge."

DiClaudio added:

"That was a close case. I'll be honest with you, that was a case that could go either way. But it wasn't a case where she abused her discretion."

But Stretton said there was nothing close about it. He said police should have first obtained a search warrant.

"That one was a no-brainer," he said. "She had to suppress."

Two men on a corner

It started as surveillance, but escalated into something far scarier.

Veteran narcotics Officer Steven Wheeler and other officers set up on Front and Clearfield Streets in Kensington, a known hot spot for sales of PCP and marijuana. It was quarter to midnight on March 17, 2009.

Wheeler had his eye on a couple of men. Three times Wheeler watched one give something small in exchange for cash to people who approached him.

The other, skinnier, man kept gazing up and down the street. When a marked police car passed near, the man shouted, "Yo! Yo!"

Drug seller and lookout, Wheeler concluded.

When police moved to make arrests, the men bolted. The supposed seller got away, but Officer Jonathan Czapore closed in on the alleged lookout, later identified as Todd Astillero, then 27.

Shouting, "Police!," Czapore saw Astillero suddenly pull a gun from his right jacket pocket.

The officer tackled him. Astillero crashed to the ground, with the hand holding the gun landing under a parked car. After Czapore Tasered Astillero, his partner reached to retrieve a 9mm gun from under the car. Its serial number had been obliterated.

No drug buyers were arrested, and the alleged seller was never identified or caught.

Prosecutors charged Astillero with firearms violations and resisting arrest, but not with drug dealing. It was his 10th arrest, with most of his past charges involving guns, drugs, or both.

At the suppression hearing in February, Astillero took the stand and testified that he had not been selling drugs and had not been carrying a gun.

"That's not my firearm," he said he told the police at the scene.

As for the other man that night, Astillero said he was an acquaintance of his sister's whose full name he did not know. He said they had just been out walking to a corner store.

In her opinion suppressing the gun, Patrick wrote that police had concluded they were watching drug sales, but that "this belief was never substantiated."

Moreover, she wrote, there was "a complete lack of observations of defendant Astillero engaging in illegal activity."

As for the gun, it could not be used as evidence. His dropping of the weapon was a case of "forced abandonment," the judge found.

Stretton, Patrick's spokesman, said the case made for a difficult call.

"That's a close one. That could go either way," he said. "A lot of judges would not have suppressed that. But remember, the most important thing a judge can do is protect our civil liberties."

'Good police work'

When Edwardo Pedraza ran from police in June 2009, he tossed away not one but two guns.

Once again, Patrick said police lacked enough reason to target Pedraza that day, and so she suppressed use of the firearms as evidence.

Of Pedraza, she said from the bench, "I think that he was forced to abandon [the guns], being pursued by the police officers."

In that arrest, from June 23, 2009, police received a report that a group of men with guns was clustered on a North Philadelphia street.

When Officer Brian Mort, on the force for two years, pulled up to the scene, he later testified, he saw Pedraza, then 27, reach to the bottom of a big T-shirt, "grab his waistband area, and adjust an object which was consistent with a gun."

As Mort got out of his car, Pedraza took off, dumping the two handguns as he ran, pulling one right from the waistband area, Mort said.

Police finally collared Pedraza and three other men and charged them all with carrying illegal guns. The youngest of those picked up, an 18-year-old arrested for the first time, was shot to death two months later a few blocks away.

Pedraza was charged with several firearms offenses, including illegal possession of a gun by a person with a criminal record. He had previously been sentenced to serve time for drug dealing.

At the suppression hearing, veteran defense lawyer Joseph Santaguida said that the original radio alert to police was too vague and that Mort had been unclear about what he had seen.

"It's good police work. Nobody is disputing that . . . they're taking a gun off the street," Santaguida said. "Is it legal? No."

In the appeal brief, Assistant District Attorney Regina M. Oberholzer said it was unreasonable to require that police must see the gun or the explicit outline of a firearm before conducting a search.

That, she wrote, "would mean that police would have to be absolutely certain that a person was armed before they could perform a protective frisk, something that the law does not require."

In her opinion, Patrick noted that the arrest was only Mort's third gun bust, and she suggested he lacked enough experience for his judgment to be indisputably sound.

In her view, Mort's testimony was unclear about what he saw.

"The officer would not see what if anything the defendant was grabbing due to the fact that at the time he was clad in a white T-shirt," she wrote.

As for the two tossed guns, she said that Pennsylvania law was clear: Without a reasonable suspicion to chase, "any contraband discarded by the person as he is being pursued must be suppressed due to the illegality of the pursuit."


Contact staff writer Craig R. McCoy

at 215-854-4821 or cmccoy@phillynews.com.

Contributing to this article were Inquirer staff writers Mark Fazlollah, Nancy Phillips, Dylan Purcell, and John Tierno and researcher Michael Panzer.

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