Opinion
04 Cr. 1382 (RPP).
June 30, 2005
The Legal Aid Society, Federal Defender Division, New York, NY, Counsel for Thomas Grayson.
OPINION AND ORDER
Defendant is charged in a one-count indictment with possession of a firearm after having been convicted in a court of a crime punishable by imprisonment for a term exceeding one year and having had three previous convictions for violent felonies, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On March 2, 2005, Defendant moved for an order suppressing physical evidence, specifically a gun and ammunition, and statements allegedly obtained from Defendant on or about December 31, 2002, in violation of his rights under the Fourth Amendment of the United States Constitution. On March 3, 2005, Defendant moved for an order, pursuant to Rule 12 and Rule 48(b) of the Federal Rules of Criminal Procedure and the Sixth Amendment of the United States Constitution, dismissing the indictment on the ground that the Defendant was denied his right to a speedy trial. This Court held an evidentiary suppression hearing on June 14, 2005.
In a letter dated April 20, 2005, Defendant clarified that the motion to suppress all statements allegedly made by Defendant referred to both statements allegedly made on December 31, 2002 and on December 17, 2004. According to the Government, upon Defendant's arrest by federal authorities on December 17, 2004, he "stated, in sum and substance, that he had been caught with the firearm in question in this case 22 months ago and that the `state' had done nothing about it." (Gov't Mem. of Law in Opp'n to Def.'s Mot. to Suppress ("Gov't Suppression Mem."), dated Mar. 31, 2005, at 14 n. 4.) At the suppression hearing, neither the Government nor Defendant addressed the circumstances under which this alleged statement was made, and, therefore, this opinion will not address the statement allegedly made by Defendant on December 17, 2004.
For the reasons that follow, Defendant's motion to suppress certain physical evidence and statements and motion to dismiss the indictment are denied.
BACKGROUND
On December 31, 2002 at approximately 11:55 a.m., Detective Withers, an officer with the New York Police Department ("NYPD"), received a telephone call from Celia Pitt. (Tr. at 7, 35, 51.) Previously, Ms. Pitt had told Detective Withers that she was a witness to a homicide committed on Ryer Avenue and 183rd Street on September 25, 2002, which Detective Withers was in charge of investigating. (Id. at 4-5, 36-37, 72-73.) At the time of the December 31, 2002 phone call, Detective Withers had been advised by other detectives that Ms. Pitt had rendered assistance in past homicide investigations, that she was "like a mother in the neighborhood," and that she was considered to be reliable. (Id. at 6-7, 73.) According to Detective Withers, on December 31, 2002, Ms. Pitt stated that while she was in the hallway of her apartment complex on Ryer Avenue near 183rd Street she had argued with, and been threatened by, the stabber from the September 2002 homicide and that, in sum and substance, this individual told her that he was coming back with something for her and her husband. (Id. at 7, 10, 17-18, 35, 51, 73, 80.) Detective Withers understood the phrase "coming back with something for her and her husband" to indicate that the individual was "[c]oming back with some type of weapon." (Id. at 18.) Detective Withers further testified that Ms. Pitt sounded scared (id. at 74) and gave him a description of the individual as a "six-foot male black, blue do rag, black jacket, maybe a blue bookbag" (id. at 10, 17).
References to "Tr." are to the pages of the transcript of the suppression hearing held on June 14, 2005.
Detective Withers took contemporaneous notes with Ms. Pitt's December 31, 2002 phone call. Although these notes do not specifically mention Ms. Pitt stating that Defendant said he was "coming back with something," Detective Withers testified that he does not write everything in his notes and that he remembered her saying this. (Tr. at 80.)
Defendant testified that in December 2002 he was six feet two inches, weighed about 225 pounds, and had dreadlocks. (Id. at 162.) He also testified that on December 31, 2002, he was carrying a dark-colored book bag, wearing a pair of blue panty hose on his head, and wearing a black jacket. (Id. at 165-66.)
Detective Withers also testified that on October 2, 2002, Ms. Pitt described the stabber from the September 2002 homicide as five foot six, thin, about 22 years old with braids. (Id. at 10-11.) She also stated that three individuals participated in the September 2002 homicide and that two of them held the victim down and punched him, while the third person stabbed him. (Id. at 72.) Detective Withers had also received descriptions of the stabber from three other eyewitnesses: (1) Angel Roman, who described the stabber as a black male, five foot seven (id. at 38); (2) Saul Flores, who described the stabber as a short, black male of thin build with short hair (id.); and (3) Veronica Moseley, who described the stabber as a black male, five foot nine, 150 pounds, slim build (id. at 39). These three eyewitnesses also all described a single perpetrator. (Id. at 40.) Detective Withers testified that on December 31, 2002, his first concern was the safety of Ms. Pitt and he did not note that the description differed from her earlier description of the stabber. (Id. at 54-56, 86-87.)
After the phone call from Ms. Pitt, Detective Withers dispatched two groups of detectives, one of which included himself, to canvass the area around Ms. Pitt's apartment for the individual that had threatened her. (Id. at 17-19.) Detective Withers testified that he gave the detectives Ms. Pitt's description of this individual and told the detectives that the individual they were looking for had threatened Ms. Pitt, was a suspect in the September 2002 homicide, and may have a weapon. (Id. at 17-18.) He also testified that he told them that if they found someone matching Ms. Pitt's description, they should hold the person and he would bring Ms. Pitt to their location for identification. (Id. at 81.) Detective Infante, who was driving the second car with Detectives Farmer, Quinn, and possibly Perez, corroborated Detective Withers' instructions and further testified that, based on that conversation, he believed the suspect might be armed. (Id. at 90-92, 115.)
Detective Withers, in a car with another detective, went to pick up Ms. Pitt, who lived down the block from the police station. (Id. at 19-20.) Upon Defendant's apprehension, Detective Withers brought Ms. Pitt to the location where Defendant was being held, and she identified him as both the individual she had argued with earlier that day and the individual who committed the homicide in September 2002. (Id. at 23.)
Defendant admitted on direct examination that he had had an argument earlier that day with a woman in a building on Ryer Avenue. (Id. at 150-51.)
About twenty minutes after the second group of detectives left the police station to search for the individual described by Ms. Pitt, Detective Quinn saw a person matching Ms. Pitt's description, who was later identified as Defendant, with a woman companion walking south on Valentine Avenue between 187th Street and 184th Street, a few blocks from Ms. Pitt's apartment. (Id. at 94-95, 128-29, 139-40.) Defendant entered a store on the corner of 184th Street and Valentine Avenue, and after he exited the store, Detectives Farmer and Quinn attempted to stop him on the street. (Id. at 96, 129, 141-42, 156.) Detectives Farmer and Quinn both testified that they verbally identified themselves as police officers, and Detective Farmer testified that he also displayed his shield. (Id. at 129, 134, 142.) Defendant looked at the detectives for a second or two and then fled on foot. (Id. at 121, 129.) Detective Infante, the driver of the second vehicle, testified that he then backed up the car onto Valentine Avenue, proceeded eastbound on 184th Street following the Defendant, and observed that Defendant was running in an unusual way, such that Detective Infante "felt that [Defendant] was holding something in his waist." (Id. at 98-99.) Detectives Farmer and Quinn pursued the Defendant on foot. (Id. at 98.)
Defendant testified that although the car driven by Detective Infante was unmarked and the detectives were in plain clothes, he identified the car as a police car with four or five policemen inside. (Id. at 93, 155, 178.)
Defendant also testified that one of the detectives said "freeze" and displayed his badge and that two of the detectives, Infante and Farmer, had their guns drawn and pointed at him. (Id. at 156-59.) Detectives Infante, Farmer and Quinn each testified that he did not have his gun drawn, although a report filled out by Detective Infante noted that guns had been pointed at the suspect. (Id. at 97, 123, 135, 144.) Defendant further testified that he ran away from the police after they identified themselves as police officers and told him to freeze. (Id. at 159.)
Detectives Infante and Farmer apprehended Defendant as he attempted to enter a residence on 184th Street about half a block from Valentine Avenue. (Id. at 99-100, 131, 160.) Detective Infante then patted down Defendant and recovered a loaded nine millimeter automatic Ruger firearm from Defendant's waistband. (Id. at 102-03, 106.) Detectives Infante, Farmer and Quinn all testified that Detective Infante frisked Defendant before placing him under arrest. (Id. at 101, 124, 133, 144-45.) Detective Infante testified that Defendant was placed in handcuffs after he frisked the Defendant. (Id. at 101, 124.)
Defendant testified that the officer who apprehended him threw him to the ground. (Id. at 160.) Detectives Infante, Farmer and Quinn deny that Defendant was thrown to the ground. (Id. at 102, 135, 147.)
On direct examination, Defendant first testified, in conflict with his supporting affidavit, that he was searched, that the gun was found, and that he was then handcuffed. (Id. at 161.) On cross examination, he contradicted himself by first testifying that he was thrown to the ground, handcuffed and then searched and later testifying that he was handcuffed after the search and seizure of the gun. (Id. at 171.) On redirect, Defendant testified he could not recall the sequence of events. (Id. at 181.)
Detective Infante testified that after he removed the gun from the Defendant's waistband and before Defendant was handcuffed, Defendant stated that the gun wasn't his and that he had found it earlier that day. (Id. at 103, 124-125.) Detective Infante also testified that he did not not say anything to Defendant when he recovered the gun. (Id. at 103.) Defendant acknowledged making the statement, and testified that, although he did not recall when he made the statement about the gun, he was prompted to make the statement by the removal of the gun from his waist. (Id. at 181-82.) Defendant testified that he had not been advised of his rights prior to his statement. (Id. at 182.)
Detective Farmer, who was present, did not recall Defendant making any statement when Detective Infante found the gun. (Id. at 135.)
When Defendant was taken to the police precinct on December 31, 2002, he was given his Miranda warnings, waived his rights to counsel and to remain silent, and was questioned about the September 2002 homicide. (Id. at 31-32.) Defendant made a statement concerning the September 2002 homicide. (Id. at 32-33.) On that same day, Defendant was charged with murder, manslaughter and criminal possession of a weapon in violation of New York Penal Law. (See Bronx Criminal Court Complaint, Ex. B to Def.'s Notice of Mot. to Dismiss.) On January 13, 2003, Defendant was indicted by a state grand jury on charges of murder and manslaughter, but no indictment was returned on the gun possession charge. (See Bronx Supreme Court Indictment, Ex. C to Def.'s Notice of Mot. to Dismiss.) Defendant was detained for twenty-one months pending trial on the homicide charge, and on September 24, 2004, he was acquitted of all charges relating to that homicide. (Affirmation of Thomas Grayson ("Grayson Aff."), dated Jan. 31, 2005, ¶ 7, Ex. D to Def.'s Notice of Mot. to Dismiss.)
On December 17, 2004, Defendant was arrested on a federal charge of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Grayson Aff. ¶ 10.) On December 30, 2004, Mr. Grayson was indicted on a charge of violating this statute and the armed career criminal statute, 18 U.S.C. § 924(e), based on the December 31, 2002 incident. (See Federal Indictment, Ex. A to Def.'s Notice of Mot. to Dismiss.) Defendant's moving affidavit states that since December 31, 2002, a friend, who was with Defendant at the time of his arrest and who saw all the events surrounding Defendant's alleged possession of a gun, has become unavailable. (Grayson Aff. ¶¶ 11-12.) In his testimony, Defendant did not indicate that any person was with him at the time of his arrest.
DISCUSSION
I. Motion to Dismiss the Indictment
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. Amend. VI. The protections of the Sixth Amendment Speedy Trial Clause are triggered by arrest, indictment or other official accusation and do not apply prior to arrest or indictment.Doggett v. United States, 505 U.S. 647, 655 (1992); United States v. MacDonald, 456 U.S. 1, 6 (1982); United States v. Marion, 404 U.S. 307, 320-21 (1971). Defendant argues that the indictment must be dismissed because his Sixth Amendment right to a speedy trial was violated by the two-year delay between his arrest for gun possession on December 31, 2002 by the NYPD, and subsequent state charges, and the prosecution in federal court on federal charges of gun possession based on his alleged gun possession on December 31, 2002. (Def.'s Mem. of Law in Support of Mot. to Dismiss the Indictment ("Def.'s Dismissal Mem."), dated Mar. 3, 2005, at 5.) However, a state arrest or indictment does not trigger an individual's speedy trial right such that the federal government must promptly bring the defendant to trial on federal charges. See United States v. Mejias, 552 F.2d 435, 442 (2d Cir. 1977), cert. denied sub nom. Padilla-Martinez v. United States, 434 U.S. 847 (1977); United States v. Wallace, 326 F.3d 881, 885 (7th Cir. 2003). Therefore, Defendant's speedy trial right attached when he was arrested on federal gun possession charges on December 17, 2004. Defendant does not complain of any undue delay after his arrest on the federal charge. Thus, there is no violation of his Sixth Amendment right to a speedy trial, and his motion to dismiss the indictment is denied. II. Motion to Suppress
Defendant quotes Rayborn v. Scully, 858 F.2d 84 (2d Cir. 1988), to support the proposition that the Sixth Amendment attaches "`whenever an individual has been officially accused of a crime.'" (Def.'s Dismissal Mem. at 6.) However, Rayborn did not concern a state charge and a subsequent federal charge. Rather, the issue in Rayborn pertained to the delay between a defendant's indictment by state authorities and his subsequent conviction in state court on those charges. 858 F.2d at 89. Thus,Rayborn is inapplicable to this case.
Defendant does not allege any violation of the Speedy Trial Act or of his due process rights under the Fifth Amendment of the United States Constitution.
A. Gun and Ammunition
The evidence at the suppression hearing established that: (1) Detective Withers had many years of experience in the neighborhood (Tr. at 20) and he believed Ms. Pitt to be a reliable person, a "mother in the neighborhood," who had rendered assistance to the police in other investigations (id. at 6-7, 73); (2) Ms. Pitt called Detective Withers to report an argument and a threat of imminent violence against her and her husband ("You old bitch. . . . I am coming back for you and your husband.") (id. at 10, 18); (3) Ms. Pitt described the individual who threatened her as a "six-foot male black, blue do rag, black jacket, maybe a blue book bag," which matched Defendant's description at that time (id. at 10, 17); and (4) Officers Infante, Farmer and Quinn observed a man fitting Ms. Pitt's description on Valentine Avenue proceeding south, in the direction of her building on Ryer Avenue (id. at 94-95, 128-29, 139-40).
Defendant contends that the description could have matched any number of individuals in that location in the Bronx, and, thus, the police did not have probable cause to arrest Defendant. (Def.'s Mem. of Law in Support of Mot. to Suppress, dated Mar. 2, 2005, at 12.) However, Detectives left the police station after receiving Ms. Pitt's phone call and about twenty minutes later saw Defendant about two to three blocks from Ms. Pitt's residence (Tr. at 94-95, 128-29, 139-40), and Detective Infante testified that the streets were not crowded when he and the other detectives were canvassing (id. at 94).
Under these circumstances the officers had sufficient grounds to stop Defendant to determine if he had committed the crime of aggravated harassment. See United States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995) (stating that a police officer may stop a person to investigate possible criminal behavior if the officer has "`reasonable suspicion' to believe that criminal activity has occurred or is about to occur"); see also United States v. Arvizu, 534 U.S. 266, 273-75 (2002) (stating that a reviewing court making reasonable suspicion determinations "must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing").
As all the testimony at the suppression hearing demonstrated, the detectives attempted to stop Defendant at the intersection of Valentine Avenue and 184th Street based on the reported threat against Ms. Pitt and her description of the individual who threatened her. After Defendant's flight from the police officers, he was stopped, not arrested. His arrest occurred after Detective Infante found a gun in Defendant's waistband pursuant to a protective search.
In addition, Defendant's flight from the detectives, who had identified themselves as such, was further grounds to stop him.See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (noting that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion" and explaining that "[h]eadlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such").
Upon stopping Defendant, Detective Infante frisked him in a protective search for weapons. This frisking is not a violation of Defendant's constitutional rights because it was reasonable for Detective Infante to believe that Defendant was armed and dangerous. See Terry v. Ohio, 392 U.S. 1, 27 (1968). Detective Infante frisked Defendant after a reported threat of imminent violence to Ms. Pitt by a homicide suspect, who Detective Infante had been told might be carrying a weapon, and after Defendant fled from the police, running while holding his waistband where guns are often carried. Thus, a reasonably prudent person in Detective Infante's position would have been warranted in believing that his safety could be in danger and that the Defendant was armed and dangerous. See id.; see also United States v. Alexander, 907 F.2d 269, 272 (2d Cir. 1990).
In the Government's response, the Government notes that it gave notice to Defendant of another statement he allegedly made, which in sum and substance was that the witness who reported him to the police that day had an attitude, and that he and the witness had an argument earlier that day. (Gov't Suppression Mem. at 14.) At the suppression hearing, neither the Government nor Defendant addressed the circumstances under which this alleged statement was made, and, therefore, this opinion will not address this alleged statement.
The testimony at the suppression hearing established that Defendant was in custody and was not advised of his Miranda rights when he made the statement that the gun was not his and that he had found it. However, Detective Infante did not ask him any questions or perform any action that he should have reasonably known would elicit an incriminating response from Defendant. See Rhode Island v. Innis, 446 U.S. 291, 300-02 (1980) (stating that Miranda warnings must be given only when a suspect is both in custody and subject to state interrogation, and that the definition of interrogation "can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response"); see also United States v. Gelzer, 50 F.3d 1133, 1138 (2d Cir. 1995).
Detective Infante testified that Defendant made the statement about the gun spontaneously after he removed the gun from the Defendant's waistband. (Tr. at 103, 124-125.) Defendant testified that he did not recall when he made the statement about the gun, but that he was prompted to make the statement by the removal of the gun from his waist. (Id. at 182.) Thus, Defendant's testimony does not contradict Detective Infante's testimony. Accordingly, Defendant's motion to suppress this statement is denied because Miranda does not require the suppression of spontaneous, voluntary utterances such as this. See Innis, 446 U.S. at 300-02.
CONCLUSION
For the foregoing reasons, Defendant's motion for dismissal of the indictment and motion for suppression of the gun and ammunition seized from Defendant on December 31, 2002 and Defendant's statement at that time are denied.
IT IS SO ORDERED.