IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

UNITED STATES OF AMERICA 1 

v. 

1 

) Criminal Action No. 05-24 ERIE 

BARRY WAYNE LEWIS ) 

1 

MEM0RANDU.M OPINION 

McLAUGHLIN, SEAN J. 

Presently pending before the Court is a motion to suppress filed by Defendant Bany Wayne 

Lewis. Lewis is charged in a one count indictment with being a prohibited person in possession of 

a firearm in violation of Title 18 U.S.C. 8 922(g). For the reasons discussed below, Lewis' motion 

is denied. 

I. BACKGROUND 

The events underlying the instant motion occurred on March 28,2005. On that date, Lewis, 

along with his nephew, Terry Surnrow, were walking west on 4th Avenue in Warren, Pennsylvania, 

at about 10:OO p.m. (Suppression Hearing Transcript (hereinafter, "Transcript"), 10/25/05, p. 5). 

Warren County Deputy Sheriff K.R. Sorenson was on patrol in Warren that night and, as he stopped 

his marked patrol vehicle at the traffic light at the intersection of 4th Avenue and Hickory Street, 

Lewis and Sumrow crossed the street directly in front of his vehicle. (Id. at 6). Sumrow was to the 

left of Lewis as they walked, placing Sumrow in between Deputy Sorenson and Lewis as the two 

pedestrians crossed Hickory Street. (Id. at 6, 17-18). 

Deputy Sorenson testified that Lewis caught his attention because, as he crossed the 

intersection, he "appeared to be carrying an item and trying to hide it from [Sorenson's] view." (Id. 

at 6). Sorenson elaborated that the item in question was about three feet long, wrapped in both a bag 

Case 1:05-cr-00024-SJM Document 28 Filed 12/22/05 Page 1 of 11
and a blanket, and appeared to be of the size and shape of a rifle, but that he never actually saw any 

portion of the rifle itself. (Id. at 6, 17). According to Sorenson: 

They moved across the street walking, but the person carrying what 

I thought was a rifle appeared to have a stiff-arm, meaning that his 

arms weren't moving in a natural manner, swinging back and forth, 

it appeared to keep his arm stiff to his side. * * * * * * * * 

So he was carrying the rifle and he had a stiff-arm in walking, trying 

not to move the weapon at all and using Mr. Sumrow as a shield to 

block my view of what he was carrying. 

(a. at 6, 12). Sorenson also indicated that Lewis, in addition to concealing the firearm at his side, 

seemed to be using Sumrow as a shield to prevent Sorenson from seeing the rifle. Sorenson 

admitted, however, that in any situation where two people are walking together in lock-step, the 

person closer to the car is likely to block the view of the other person. (Id. at 17-1 8). Lewis did not, 

at any point, attempt to shift the rifle from his left side to his right, where his body would have 

shielded it from Sorenson. 

As Lewis and Sumrow cleared the intersection and continued west on 4th Avenue, the light 

at the intersection turned green and Sorenson proceeded north, turning his head to continue watching 

the pedestrians. Sorenson lost sight of them for "a couple of minutes" while he circled around the 

block but regained his visual after merging onto 4th Avenue at a point several blocks behind Lewis 

and Sumrow. (Id. at 8). As he continued around the block, Sorenson radioed the Warren City Police 

Department to advise them that he had observed an individual carrying what he thought was a rifle 

and to request backup. 

Once on 4th Avenue, Sorenson followed the subjects at a normal pace with his patrol vehicle 

for a block or two until they neared the intersection of Hazel and 4th Avenue, at which point he 

activated the blue and red emergency lights on top of his vehicle and turned onto Hazel. Lewis and 

Sumrow were just about to step off of the sidewalk alongside 4th Avenue and onto the Hazel Street 

crosswalk when Sorenson stopped his vehicle in the intersection, perpendicu.lar to the crosswalk. 

Sorenson testified that: 

Case 1:05-cr-00024-SJM Document 28 Filed 12/22/05 Page 2 of 11
I believe that my vehicle was probably, probably for the most part in 

the crosswalk. I'm not sure it was completely in the crosswalk. I 

want to say it was kind of at an angle. 

(M. at 27). Upon further questioning, Sorenson clarified that, although his vehicle may not have 

been completely blocking the crosswalk, Lewis and Sumrow would not have been able to continue 

walking across Hazel "without diverting around [his] vehicle" and leaving the crosswalk. (Id. at 28). 

Sorenson further testified that he had activated his emergency lights solely for safety reasons, due 

to his vehicle blocking the intersection; he admitted, however, that he could have safely parked on 

the side of the road and obviated the need for the emergency lights, but did not do so because he had 

been in a hurry to speak with Lewis and Sumrow. (Id. at 26-27). 

As Lewis and Sumrow continued walking through the crosswalk towards Sorenson's vehicle, 

Sorenson exited and approached them, asking what was in the bag. Sorenson was wearing his police 

uniform, but did not draw his gun to approach Lewis. (Id. at 10). Mr. Lewis responded by 

immediately handing the package to Sorenson, indicating that it was a rifle, and asserting that he had 

found it in the garbage. (u.) 

About 15 or 20 seconds after Sorenson took possession of the rifle, Warren City Police 

Officer Brian Gulnac arrived on the scene in response to Sorenson's prior radio for backup. (Id. at 

34). Gulnac, like Sorenson, arrived in full uniform and in a marked patrol vehicle. As he pulled in 

behind Sorenson, Gulnac switched on the bright spotlights on top of his vehicle, known as "takedown lights," and aimed them at Lewis and Sumrow. (Id. at 58). Gulnac did not activate his 

emergency lights. (M.) 

Sorenson handed the rifle over to Gulnac, who called in the serial number on the rifle to 

determine whether it had been reported stolen. (u. at 34). While they were waiting for the results 

of this call, Gulnac took down Lewis' and Sumrow's names and asked them for identification. 

Lewis indicated that he had no identification, but provided his correct name. (Id. at 48). Lewis also 

reiterated that he had found the gun in the garbage, indicated that he had intended to turn it in to 

police, and queried whether he might be able to keep the rifle if it did not turn up stolen. (Id. at 14). 

Case 1:05-cr-00024-SJM Document 28 Filed 12/22/05 Page 3 of 11
Gulnac suggested to Sorenson that they ought to pat down Lewis and Sumrow for weapons, and 

Lewis and Sumrow readily assented to the frisk. (Id. at 60-62, 71). 

Throughout the interaction between Lewis, Sumrow, and the two officers, Lewis and 

Sumrow were not restrained or told that they could not leave. (Id. at 59). Rather, they both moved 

about the area, occasionally crossing the street to speak with some other people who showed up, 

including Lewis' sister. (Id. at 49-50). According to Gulnac, Lewis remained in the area because 

he hoped to keep the rifle if it had not been reported stolen. (Id. at 69, 72). Gulnac did note, 

however, that he and Officer Sorenson followed Lewis closely when he crossed the street. (Id. at 49- 

50,69). 

After taking down Lewis' name, Officer Gulnac ran a background check for outstanding 

warrants. This check turned up an extraditable hit for an outstanding warrant in California. (u. at 

14,48). At .that point, Officer Gulnac took Lewis into custody. (a. at 14, 70). 

Lewis was subsequently taken to the City of Warren police station where he was questioned 

by ATF Special Agent David Farabaugh about the weapon. (Motion to Suppress, p. 2; Response to 

Motion to Suppress, 7 13). Lewis waived his Miranda rights and reiterated to police that he had 

found the rifle while picking through trash and had intended to take the rifle to his sister's house and 

have her call the police. (Id.) He also informed Agent Farabaugh that he had been recently released 

from a state prison in California for assault with a deadly weapon, had a history of mental illness, 

and had recently returned to Pennsylvania to care for his diabetic mother. (aI) 

11. DISCUSSION 

Lewis' motion to suppress asserts that he was seized in violation of the Fourth Amendment 

of the United States Constitution. Lewis argues that the circumstances of his encounter with 

Sorenson constituted a unlawful seizure because Sorenson could not be certain that Lewis was 

carrying a rifle and, moreover, had no basis for believing that Lewis' purported possession of the 

Case 1:05-cr-00024-SJM Document 28 Filed 12/22/05 Page 4 of 11
rifle was illegal. Lewis further contends that the statements he made to law enforcement following 

his seizure should be suppressed as unlawfully obtained fruit of the poisonous tree. 

A. 

"The Fourth Amendment's requirement that searches and seizures be founded upon an 

objective justification, governs all seizures of the person, 'including seizures that involve only a brief 

detention short of traditional arrest."' United States v. Mendenhall, 446 U.S. 544, 551 (1980) 

(quoting Davis v. Mississi~pi, 394 U.S. 72 1 (1969)). A "seizure" does not occur simply because an 

officer approaches an individual and asks a few questions. See Florida v. Bostick, 50 1 U.S. 429,434 

(1991). Rather, "a person is 'seized' only when, by means of physical force or a show of authority, 

1 hls freedom of movement is restrained." Mendenhall, 446 U.S. at 553. If an investigative stop rises 

to the level of a "seizure," it will pass constitutional scrutiny only where police have a reasonable 

, suspicion, based upon specific and articulable facts, "that criminal activity may be afoot." Terry v. 

I Ohio, 392 U.S. l,30 (1968). To demonstrate reasonable suspicion, "[tlhe officer must be able to 

articulate more than an 'inchoate and unparticularized suspicion or "hunch" of criminal activity."' 

Illinois v. Ward.low, 528 U.S. 119, 123-24 (2000) (quoting Terry, 392 U.S. at 27). 

Consensual encounters, in contrast, occur where a reasonable person would feel free to 

1 disregard the police and go about his business or to "decline the officer's requests or otherwise 

I terminate the encounter." Bostick, 501 U.S. at 439. Consensual encounters are important tools of 

law enforcement and, unlike seizures, need not be based on any suspicion ofwrongdoing. Id. at 434. 

Thus, police officers may approach an individual without reasonable suspicion or probable cause and 

may question that individual, ask to examine identification, and request consent to search items in 

that person's possession, provided that the individual would feel free to decline the officer's 

requests. a. at 434-35 (citing Florida v. Rodrimez, 469 U.S. 1, 5-6 (1984); INS v. Delnado, 466 

U.S. 210, 216 (1984); Florida v. Rover, 460 U.S. 491, 501 (1983)). 

Application of the aforementioned principles to the facts before us requires consideration of 

two sequential questions. First, we must deternine whether the encounter between Lewis and 

Case 1:05-cr-00024-SJM Document 28 Filed 12/22/05 Page 5 of 11
Sorenson constituted a "seizure." If we answer that question in the affirmative, we must next 

determine whether Officer Sorenson acted upon an articulable, reasonable suspicion of criminal 

wrongdoing in effectuating the seizure. 

i. Was Lewis subjected to a "seizure"? 

The fundamental characteristic of a seizure is that a reasonable person would not feel free 

to "disregard the police and go about his business." Bostick, 501 U.S. 434 (quoting California v. 

Hodari D., 499 U.S. 621,628 (1991)). "What is reasonable depends upon all of the circumstances 

surrounding the search or seizure and the nature of the search or seizure itself." United States v. 

Montova de Hernandez, 473 U.S. 53 1,537 (1985). In Terry, the Supreme Court pronounced that, 

"[olnly when the officer, by means of physical force or show of authority, has in some way restrained 

the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry, 392 U.S. at 19, n. 16. 

With these principles in mind, we conclude that a reasonable person in Lewis' shoes would 

not have felt free to disregard Sorenson after Sorenson impeded Lewis' progress by parking his 

patrol vehicle in Lewis' path. Several courts have recognized that flashing lights and police pursuit 

demonstrate police authority to an intended detainee. See Brower v. County of Invo, 489 U.S. 593, 

597 (categorizing "flashing lights and continuing pursuit" as a "show of authority" by police); U.S. 

v. Taylor, 95 Fed. Appx. 957,960 (loth Cir. 2004) ("[Wle believe a police car's flashing lights and 

sirens provide a clear direction to stop."). Here, Sorenson, driving a prominently marked police 

cruiser, followed Lewis down the street, activated his flashers, and then parked his vehicle in the 

middle of an intersection so as to block the crosswalk that Lewis was stepping into. Sorenson 

admitted that the way he parked his vehicle would have forced Lewis to detour outside of the 

crosswalk in order to continue on his way. Sorenson also testified that he could have parked along 

the side of the road and obviated the need to activate his flashers, but did not do so because he was 

in a hurry to speak with Lewis. Sorenson then stepped out of the vehicle in full uniform and 

approached Lewis and Sumrow. 

Case 1:05-cr-00024-SJM Document 28 Filed 12/22/05 Page 6 of 11
Each of these factors - the marked vehicle, flashing lights, and the physical positioning ofthe 

police cruiser so as to block Lewis' path - demonstrate a "show of authority" by a police officer. 

Sorenson did not need to activate his lights or block Lewis' path, as there is nothing to indicate that 

Lewis attempted to flee or evade contact with police; rather, Sorenson could simply have pulled up 

beside them and engaged Lewis in a consensual manner. By relying on the authority and trappings 

of his position as a law enforcement officer to require Lewis to speak with him, Sorenson effectuated 

a Fourth Amendment seizure. Consequently, we must consider whether Sorenson had reasonable 

suspicion to seize Lewis. 

ii. Was the seizure based upon reasonable suspicion? 

A warrantless seizure does not violate the constitution when the stop is based upon a 

reasonable suspicion that "criminal activity may be afoot." Terry, 392 U.S. at 30. Reasonable 

suspicion must be more than a hunch; rather, it must be based upon specific and articulable facts. 

Wardlow, 528 U.S. at 123-24. The government asserts that Sorenson had reasonable suspicion to 

stop Lewis based on the purportedly furtive manner in which Lewis was carrying the rifle when 

Sorenson first observed him. Specifically, Sorenson asserts that Lewis "attempted to conceal the 

rifle and block [his] view of it, using his companion as a shield." (Response to Motion to Suppress, 

p. 10). Sorenson also notes that it was ten o'clock in the evening at the time that he observed Lewis. 

As an initial matter, we note that Lewis' behavior is not rendered inherently suspicious 

simply because a firearm was involved. It is not per se illegal to carry a firearm in public in 

Pennsylvania, let alone to carry a wrapped bundle that appears to be a firearm. 18 Pa.C.S.A. 5 

6106(a)(l). Thus, the Third Circuit has held that possession of a firearm, in the absence of 

"articulable facts suggesting that the gun . . . was defaced or unlicensed, that [the suspect] posed a 

safety risk to the authorities or [other persons], or that [the suspect] was acting in a manner 

indicating that he was involved in a different crime," does not create reasonable suspicion. LTbiles, 

224 F.3d 218. 

Case 1:05-cr-00024-SJM Document 28 Filed 12/22/05 Page 7 of 11
Here, however, Sorenson articulated specific facts to support his belief that Lewis might have 

been "acting in a manner indicating that he was involved in a different crime" or that Lewis' 

possession of a rifle might have posed a safety risk to others. Id. Sorenson, relying upon his 

farniliaritywith firearms gleaned from years of experience as a police officer, testified to seeing what 

he distinctly believed to be a rifle wrapped oddly in both a blanket and a plastic bag. He further 

testified that Lewis was walking in a stiff, unorthodox manner so as to keep the rifle tight to his side 

without moving his arm, and that Lewis appeared to be trying to use Surnrow as a shield, walking 

in lock-stop behind him so as to obscure Sorenson's view. The United States Supreme Court has 

acknowledged that "nervous, evasive behavior is a pertinent factor in determining reasonable 

suspicion." Wardlow, 528 U.S. at 124 (citing, s, United States v. Brimoni-Ponce, 422 U.S. 873, 

885 (1975)); see also; United States v. Woodrum, 202 F.3d 1, 7 (1" Cir. 2000) (holding that 

"slouching, crouching, or any other arguably evasive movement, when combined with other factors 

particular to the defendant . . ., can add up to reasonable suspicion.") (cited with approval by United 

States v. Valentine, 232 F.3d 350, 357 (3rd Cir. 2000)). During his testimony, Sorenson, at the 

Court's request, demonstrated the manner in which Lewis passed in front of his patrol vehicle, 

thereby allowing the Court to visualize the peculiarity of the behavior. Finally, not only did this 

incident occur late at night, but Sorenson also opined that it was unusual to see someone carrying 

a firearm within city limits. 

Taking into account the totality of the circumstances, we find this case to be more similar to 

Valentine than to Ubiles. In Valentine, the Third Circuit held that police had reasonable suspicion 

to stop an armed suspect based on an anonymous tip in a high crime area. Valentine, 232 F.3d at 

356. In reaching its conclusion, the Third Circuit specifically distinguished the facts before it from 

those presented in Ubiles: 

Our case is distinguishable from Ubiles. First, there is the broader 

context. Valentine was walking around at 1 :00 a.m. in a high-crime 

area known for shootings. While an individual's presence in a 

high-crime area is not b7 itself sufficient to warrant a Terry stop, 

Wardlow, 528 U.S. at 124, 120 S.Ct. at 676 (citing Brown v. Texas, 

443 U.S. 47,99 S.Ct. 2637,61 L.Ed.2d 357 (1979)), "the fact that the 

Case 1:05-cr-00024-SJM Document 28 Filed 12/22/05 Page 8 of 11
stop occurred in a 'high crime area' [is] among the relevant 

contextual considerations in a Terry analysis." a. (citing Adams v. 

Williams, 407 U.S. at 144 and 147-48, 92 S.Ct. at 1922 and 1924). 

The constellation of likely criminal acts in a high-crime area at 1 :00 

a.m. goes well beyond simply carrying a gun without registration or 

with altered serial numbers. * * * * * * * * 

In evaluating the totalitv of the circumstances. we must also take into 

account thahalentine ind the two men with him immediately began 

walking away from the patrol car when it arrived. Walking away from 

the police hardly amounts to the headlong flight considered in 

Wardlow and of course would not give rise to reasonable suspicion 

by itself, even in a high-crime area, but it is a factor that can be 

considered in the totality of the circumstances. * * * * * * * * 

In summary, we conclude that the officers had reasonable suspicion 

after they received the face-to-face tip, were in a high-crime area at 

1 :00 a.m., and saw Valentine and his two companions walk away as 

soon as they noticed the police car. 

Valentine, 232 F.3d at 356-57 

As in Valentine, corroborative factors support Sorenson's suspicions that Lewis possessed 

and was attempting to conceal a firearm that might have been used, or was intended for use, in a 

crime. It was late at night, Lewis was holding what appeared to be a concealed rifle in an evasive, 

secretive fashion, and Lewis appeared to be walking in an unorthodox fashion so as to use his 

companion to shield the rifle from Sorenson's view. Consequently, we hold that Sorenson had 

reasonable and articulable suspicions to justify an investigatory stop. See Ubiles, 224 F.3d at 218; 

Valentine, 232 F.3d at 357. 

iii. Fruit of the poisonous tree 

As Lewis was not seized in violation of the Fourth Amendment, his statements to law 

enforcement officers following the legal seizure cannot be suppressed as "fruit of the poisonous 

tree." Wonq Sun v. United States, 371 U.S. 471 (1963). 

111. CONCLUSION 

Case 1:05-cr-00024-SJM Document 28 Filed 12/22/05 Page 9 of 11
For all of the foregoing reasons, Lewis' motion to suppress evidence is denied. An 

appropriate order follows. 

Case 1:05-cr-00024-SJM Document 28 Filed 12/22/05 Page 10 of 11
IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

UNITED STATES OF AMERICA ) 

v. 

BARRY WAYNE LEWIS 

1 

) Criminal Action No. 05-24 ERIE 

) 

) 

ORDER 

AND NOW, to wit, this 22"d day of December, 2005, for the reasons set forth in the 

accompanying Memorandum Opinion, 

IT IS HEREBY ORDERED that the Defendant Barry Wayne Lewis' Motion [Doc. No. 141 

to Suppress is hereby DENIED. 

IS/ - Sean J. McLaughlin 

United States District Judge 

cm: All parties of record. 

Case 1:05-cr-00024-SJM Document 28 Filed 12/22/05 Page 11 of 11