Opinion
No. 05 Cr. 384 (LTS).
December 8, 2005
MEMORANDUM ORDER
Defendant Vincent Amato ("Defendant" or "Amato") is charged with one count of unlawful possession of a firearm after having been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). On the night of February 8, 2005, Defendant was confronted by New York City police officers as he was sitting in his motor vehicle. In the course of the encounter, Police Officer Sean Lynch ("Officer Lynch") searched Amato's vehicle and seized a .380 caliber semi-automatic pistol. In motion papers dated June 23, 2005, Defendant moves to suppress the gun, as well as for discovery pursuant to Federal Rule of Criminal Procedure 16 and production of Brady and Giglio material. The Court held a hearing on Defendant's suppression motion on September 7, 2005. The Court having reviewed carefully the parties' respective submissions, hearing testimony and evidence, Defendant's motions are denied for the following reasons.
Motion to Suppress Physical Evidence
The parties agree that the justification for the police officers' initiation of the encounter with Defendant must at a minimum meet the standard established by the Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). Defendant argues that the police officers lacked the requisite reasonable suspicion that criminal activity might be afoot (see Terry, 392 U.S. at 30), asserting that the Government has failed to proffer credible evidence that the officers observed suspicious conduct or that they observed a gun in the automobile before searching the vehicle. The Court has considered carefully the suppression hearing evidence and concludes that the Government has met its burden of demonstrating by a preponderance of the credible evidence that the encounter was initiated after a police officer had observed the Defendant in the driver's seat of his illegally-parked car, with a beer bottle from which the officer believed he had been drinking, and that the search was conducted only after police officers observed Defendant making unusual movements, and after an officer had observed a pistol through the window of the car.
"Although `reasonable suspicion' is a `less demanding standard' than probable cause, `at least a minimal level of objective justification' is required, and the officers `must be able to articulate more than an "inchoate and unparticularized suspicion or `hunch' of criminal activity."'" United States v. Ferguson, 130 F. Supp. 2d 560, 565 (S.D.N.Y. 2001) (quoting Illinois v. Wardlow, 528 U.S. 119, 123, 123-24 (2000) (quoting Terry, 392 U.S. at 27)). Here, the officer's observations of Defendant with an open container of alcohol and the position of the vehicle were sufficiently articulable grounds for reasonable suspicion. Indeed, in that the behavior was objectively indicative of specific violations of the New York Vehicle and Traffic Law, the encounter was justified by probable cause. See Whren v. United States, 517 U.S. 806, 810 (1996) ("As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."); see also United States v. Scopo, 19 F.3d 777, 782 (2d Cir. 1994) (finding that there is probable cause to stop a vehicle and make an arrest "when an officer observes a traffic offense — however minor") (citation omitted).
The Court finds credible New York City Police Officer Brendan Owens' ("Officer Owens") testimony that he first "noticed the vehicle was [stopped] in the middle of the road," and that, upon driving parallel to Defendant's vehicle, he "noticed [Amato] had a Heineken bottle that he had just been drinking." (Owens Test., Tr. 10.) Officer Owens' observations include at least one violation of the New York Vehicle and Traffic Law. See N.Y. Veh. Traf. Law § 1227 (McKinney 2005) ("The drinking of alcoholic beverages, or the possession of an open container containing an alcoholic beverage, in a motor vehicle located upon the public highways . . . is prohibited. Any operator . . . violating this section shall be guilty of a traffic infraction."); see also id. § 1203 (McKinney 1996) ("Except where angle parking is authorized, every vehicle stopped, standing, or parked . . . upon a two-way roadway shall be so stopped, standing, or parked, . . . within 12 inches of the right-hand curb or edge of the roadway.") Accordingly, the Court finds that the police encounter with Defendant in the vehicle was reasonable and supported by probable cause, based on observable violations of New York traffic laws.
Following an initial verbal exchange with Amato (Owens Test., Tr. 12), Officer Owens walked to the driver's side window (id. at 16), while Officer Lynch approached the passenger's side (id.; Lynch Test., Tr. 49). Officers Owens and Lynch testified credibly that, as they approached the vehicle, they saw Amato making arm and shoulder movements toward his right side and/or the rear of the vehicle. (Owens Test., Tr. 15-16; Lynch Test., Tr. 50.) Officer Lynch further testified credibly that, using a flashlight, he saw through the tinted windows of the vehicle a Heineken bottle in the center console and the but of a gun protruding from a pouch located behind the driver's seat. (Lynch Test., Tr. 51.) In reaching the conclusion that Lynch's testimony was credible, the Court considered carefully a videotape (Def.'s Ex. F) and testimony proffered by the defense in support of its contention that it was not possible to see through the tinted windows of the car, as well as Defendant's proffers and contentions concerning the credibility of the police officers' testimony. While the videotape shows that the rear windows of Amato's vehicle were tinted at the time the video was taken, it does not provide a view of the windows under the same lighting conditions available on the night of February 8, 2005. Further, because the videotape also does not show the level of visibility through the rear passenger side window with a flashlight, despite Fischer's testimony that he could not see through the rear window with a flashlight (Fischer Test., Tr. 82, 91), it is not "clear from the videotape that the added use of a flashlight would not have aided Officer Lynch in seeing into the vehicle." (Def.'s Mem. 8.) This is particularly relevant since Officer Lynch testified that he saw the gun while holding the flashlight, "[r]ight up next to the vehicle." (Tr. 52.) The Court finds that in light of Officer Lynch's observation of the gun, he and Officer Owens had probable cause to seize it. United States v. Gagnon, 373 F.3d 230, 235 (2d Cir. 2004) ("[W]hen the police possess probable cause to believe a vehicle contains contraband, `they may conduct a warrantless search of every part of the vehicle and its contents, including all containers and packages in the vehicle"' (quoting United States v. Cruz, 834 F.2d 47, 51 (2d Cir. 1987).).
Accordingly, the Court finds that the Government has carried its burden of demonstrating by a preponderance of the credible evidence that the stop and search of Defendant's vehicle were reasonable and supported by probable cause. Therefore, Defendant's motion to suppress physical evidence is denied.
Motion for Discovery
Defendant moves pursuant to Rule 16(d)(2) of the Federal Rules of Criminal Procedure for an order directing the Government to make Rule 16 discovery. Defendant's moving papers acknowledge that the Government had previously produced discovery material and, in its response to the motion, the Government proffers that "Amato has already received all of the Rule 16 discovery material in the Government's possession." (Gov't.'s Letter Br. in Opp'n to Def.'s Mot. to Suppress ("Gov't.'s Opp'n"), at 7.) Defendant has not contested this assertion. Accordingly, Defendant's motion for Rule 16 discovery is denied as moot.
Motion for Brady Material
The Defendant also moves for an order directing the Government to produce all Brady material in the instant case. See Brady v. Maryland, 373 U.S. 83, 87 (1963). The Government, however, states that it "is not aware of any Brady material in this case," but nonetheless "recognize[s] its continuing obligation to disclose all such material, and will provide timely disclosure obligations under Brady." (Gov't.'s Opp'n 7.) The Government further states that it has informed defense counsel in writing of the lack of Brady materials in this case. (Id.) Defendant has proffered no evidence or argumentation to rebut the Government's representations that such material does not exist and that, if such material did exist, the Government would provide it to Defendant in a timely manner.
Accordingly, Defendant's motion for an order requiring the Government to produce Brady material is denied. See, e.g., United States v. Sanchez, No. S101Cr277(RCC), 2003 WL 1900851, at *5 (Apr. 17, 2003, S.D.N.Y.) ("Where, as here, the government has made a good-faith representation to the Court and defense counsel that it recognizes and has complied with its obligations under Brady, a defendant is entitled to no further pretrial discovery of Brady material" (citing United States v. Perez, 940 F. Supp. 540, 553 (S.D.N.Y. 1996).).
Motion for Giglio Evidence
The Defendant moves for the immediate production of impeachment evidence pursuant to Giglio v. United States, 405 U.S. 150 (1972). Here, the Government proffers that it "will adhere to its customary practice of producing any Giglio material the Friday before the trial begins." (Gov't. Opp'n 8.) There is nothing in the record to demonstrate that production of Giglio material on the schedule proposed by the Government would be inadequate to permit Defendant to prepare properly for trial. Cf. United States v. Coppa, 267 F.3d 132, 141 (2d Cir. 2001) ("[W]e reiterate the longstanding constitutional principle that as long as a defendant possesses Brady [and Giglio] evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner."). Accordingly, Defendant's motion for an order requiring the immediate production of Giglio material is denied.
CONCLUSION
For the foregoing reasons, Defendant's motions are denied in their entirety.SO ORDERED.