A former Farrell man is hoping a federal judge will suppress evidence and gut a charge that is punishable by a sentence of 5 to 40 years behind bars.

Kardell Lowery, also known as Jamar Marks, 39, was indicted April 1, 2008, on five counts of drug and gun charges. His suppression motion deals only with one count, possession of a firearm by a convicted felon.

U.S. District Court Judge Nora Barry Fischer, Pittsburgh, has set a Nov. 12 hearing to take testimony and hear arguments on the motion.

Lowery’s attorney, David B. Chontos, Turtle Creek, Pa., gives this flowery account of the incident:

“On Dec. 1, 2007, local police officers from the Southwest Mercer County Regional police had an interaction with Mr. Lowery. Lowery is in Roamer’s Bar. He is enjoying himself. Soon after he hears, ‘Last call,’ Lowery leaves. He steps onto the sidewalk, which is adjacent to, surprisingly, Roemer Boulevard in the Mercer County town of Farrell. He is heading to his car. It is parked about a one-half block up the street. No sooner does his foot hit the sidewalk and he pivots left when he hears the commands of, ‘Freeze,’ ‘Get against the wall.’ For a moment, Lowery does not believe these commands are directed at him. He keeps walking. When the commands are repeated and he sees a police car parked in the middle of the street and two officers out of the car approaching him with their guns drawn, it dawns on Lowery they are telling him to stop. He complies. An officer grabs the jacket that Lowery is wearing in the right shoulder area and pushes him towards the wall. Lowery is now facing the brick wall of a building adjacent to the bar. His back is to the street. The officer pulls on Lowery’s jacket and Lowery bolts out of the jacket and makes a quick left turn down Lee Street. The officers follow. During the chase, a gun is seen in Lowery’s hand as a muzzle flash is seen and a gunshot is heard. Lowery hides on a porch. He is caught a short time later. A firearm is recovered. That firearm is the basis for the charge at count five of the indictment.”

Chontos argued Lowery was arrested without a warrant, probable cause that he had committed a crime or reasonable suspicion that criminal activity was afoot, violating the Fourth Amendment.

The 9mm pistol and allegedly incriminating statements Lowery made to police should be kept out of trial, Chontos said.

U.S. Attorney Amy L. Johnston, gave a slightly different account of events. She said police were dispatched at 1:57 a.m. to Roamers, which she said is in a high drug and crime area of Farrell, with a call of a man inside with a gun in his waistband.

The caller said the man was wearing a red jacket and red hat, which was backward.

While Southwest patrolman Jason Newton was waiting for backup, he saw a man fitting the description leave the bar. When other police arrived, Cpl. Robert Rubano and patrolman Erick Gatewood confronted Lowery with guns drawn, and ordered him to put his hands on the wall of a building.

Lowery did not obey, put his hands in his jacket and walked north on Lee Avenue, Ms. Johnston said.

After Lowery again refused to comply with an order, Gatewood grabbed Lowery’s jacket. Lowery slid out of the jacket and ran, Ms. Johnston said.

Newton saw Lowery pull the gun from his waistband, fall to the ground and get back up. Lowery tried to jump over a three-foot-high line of hedges, tripped and landed on his stomach. While Lowery was getting up, Newton saw a flash and heard Lowery’s gun go off.

Newton told Lowery to get on the ground, but Lowery ran and yelled, “You shot me,” Ms. Johnston said.

Newton caught up with Lowery, who was shot in the hand, on a porch. Lowery ran, Gatewood used an electronic shocking device to subdue him, and Lowery was arrested.