Opinion
Criminal Action No. 07-552 (JAG).
April 15, 2008
Christopher J. Christie, United States Attorney, By: Christopher J. Kelly, Assistant United States Attorney, U.S. Department of Justice, Newark, New Jersey, For the United States of America.
Richard Coughlin, Federal Public Defender, By: K. Anthony Thomas, David Holman, Assistant Federal Public Defenders, Office of the Federal Public Defender, Newark, New Jersey, For Defendant Correy Banks.
ORDER
This matter comes before this Court on defendant Correy Banks' ("Defendant") pre-trial motions (Docket Entry No. 12); and it appearing that this Court reviewed the parties' submissions and oral argument, and for the reasons set forth in the accompanying Opinion, and good cause appearing,
IT IS on this 15th day of April, 2008,
ORDERED that Defendant's motion to suppress evidence is GRANTED; and it is further
ORDERED that the remaining pre-trial motions raised by the Defendant, regarding disclosure of evidence under FED. R. EVID. 404(b), the continuing obligation of the Government to produce exculpatory evidence, the production by the Government of Jencks material, the preservation and production by the Government of all rough notes created by law enforcement agencies and government witnesses in the course of the investigation leading to the indictment, and the review by the Government of the personnel files of the law enforcement officers involved in this case, are GRANTED in accordance with the rulings made by this Court during the suppression hearing on February 1, 2008; and it is further
ORDERED that the Defendant's motion to dismiss the indictment in the event that evidence or investigative notes were destroyed is DENIED; and it is further
ORDERED that a copy of this Order be served on all parties within seven (7) days of the date of entry of this Order.
OPINION
This matter comes before this Court on Defendant Correy Banks' ("Defendant" or "Banks") motion to suppress evidence recovered in connection with a stop and frisk conducted on February 20, 2007. The question presented is whether Defendant created reasonable suspicion warranting a stop and frisk when he walked down the street with a companion at night, in what the officers suggested is a high crime area, holding a "large black object." This Court finds that the police officers violated Defendant's Fourth Amendment right to be free from unreasonable searches and seizures, and that the fruits of the stop and frisk, namely, a handgun, were tainted by the unconstitutionality of the stop. Defendant's motion to suppress the evidence seized after the stop shall be granted.
I. BACKGROUND
This motion to suppress centers on the stop and frisk performed by police officers Jessie Hilburn ("Officer Hilburn") and Edward Esparra ("Officer Esparra") on February 20, 2007. According to the police report, Officers Hilburn and Esparra were patrolling what they labeled a "high crime and drug activity" area in a marked police vehicle when, at approximately 3:25 a.m., they observed two males walking north on Bergen Avenue. (Police Report, submitted as Def. Ex. B.) The officers observed one man, later identified as Banks, holding what they described as a "large black object." Id. After watching Banks place the object in his coat pocket, the officers exited their vehicle and ordered the men to stop. (Id.) The officers frisked Banks and retrieved a handgun from his coat pocket. (Id.) Banks was arrested on Bergen Avenue between Ege Avenue and Virginia Avenue. (Id.)
Both officers testified during the suppression hearing that they were together, while Officer Hilburn drafted the police report. (T28:1-22; T108:5-18; T109:17-25; T110:1-20; T111:9-20.) Both officers are named as reporting officers on the police report, labeled Government Exhibit 1, and the officers showed the report to their supervisor, who after review signed the report. (Def. Ex. B; T28:23-25; T29:1.)
Defendant argues that the stop was unconstitutional because the officers' observations do not suffice to create probable cause or reasonable suspicion that criminal activity was afoot. Defendant also argues that he was unlawfully searched because no investigative actions were taken subsequent to the stop and prior to the frisk.
In response, the Government argues that Officers Hilburn and Esparra reasonably suspected that criminal activity was afoot because the stop was performed at night in a high crime area after observing Defendant hold what appeared to be a weapon. Once the officers stopped Banks, the Government continues, they were clearly justified in performing the frisk on an individual perceived to be armed and dangerous.
The parties fleshed out their arguments through testimony presented at the suppression hearing held on February 1, 2008.
The Government argued in its opposition brief that this Court need not hold a hearing to resolve Defendant's motion to suppress because Defendant's moving papers do not raise a factual dispute. Rule 12 of the Federal Rules of Criminal Procedure, which governs motions to suppress, does not expressly state when a defendant filing a suppression motion is entitled to a pre-trial evidentiary hearing. United States v. Jihad, 159 F. App'x 367, 369 (3d Cir. 2005); United States v. Cummings, 156 F. App'x 438, 444 (3d Cir. 2005). However, courts have held that the defendant's motion brief must demonstrate a colorable claim for relief. Cummings, 156 F. App'x at 444. For a claim to be colorable, the motion must do more than just allege bald allegations of misconduct or the occurrence of a constitutional violation. Id. Rather, the defendant must allege contested issues of fact that are material to the resolution of his constitutional claim. Id. Stated differently, an evidentiary hearing on a motion to suppress may be held only when the moving papers allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that contested issues of fact exist.Jihad, 159 F. App'x at 369 (citing United States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000)).
In this case, the Government includes in its brief facts outside of the police report indicating that Officers Hilburn and Esparra perceived the "large black object" to be a gun, or in fact saw that it was a gun. This Court conducted a hearing to resolve the factual dispute regarding whether the officers perceived the "large black object" held by Banks was in fact a gun.
A. Testimony of Officer Jessie Hilburn
At the time of Defendant's arrest, Officer Hilburn had been a police officer for less than two years. (T11:24-25; T12:1.) He had joined the police force on November 4, 2005. (T27:18-22.) Officer Hilburn testified that, on February 20, 2007, he and his partner, Officer Esparra, patrolled an area of Jersey City, New Jersey in a marked police vehicle during the midnight shift, which generally extends from 11:00 p.m. to 7:00 a.m. or from 12:00 a.m. to 8:00 a.m. (T12:6-20.) Officer Hilburn described the area as a high-crime area. (T13:4-6.)
Officer Hilburn testified that, while the patrol car was stopped on the eastern corner of Virginia Avenue at Bergen Avenue, he looked out of the front windshield and observed two men walking north on the western side of Bergen Avenue. (T13:2-3, 9-10, 14-15, 19-21; T36:7-8, 11-13.) The men, who walked within the path of the patrol car's headlights, were approximately thirty to fifty feet from the patrol car. (T13:24-25; T40:3-6; T44:15-17.) The man closest to the street, who was later identified by Officer Hilburn as Banks, carried an object in his hand. (T13:9-10; T14:1-17; T15:5-7.) Specifically, Officer Hilburn stated that Banks was "cradling" the object "close to his body." (T38:24.) Officer Hilburn testified that the object looked like "a black object with a barrel-like shape to it," and that the barrel was pointed down towards the ground. (T15:19-20; T39:6-8, 24-25.) Although he was not 100 percent sure that Banks had a gun, Officer Hilburn commented to Officer Esparra that he believed the man had a gun. (T15:22-25.)
Officer Hilburn admitted that the police report does not indicate that the object Banks held appeared to be a gun. (T29:6-8.) He also admitted that the report does not state that he observed what appeared to be a barrel of a gun. (T34:13-18.)
After making this comment to Officer Esparra, Officer Hilburn made a right turn onto Bergen Avenue and pulled up parallel to the men. (T16:1-5.) Officer Hilburn testified that Banks then placed the object into his coat pocket. (T16:6-7; T40:14-18.) Officer Hilburn parked the patrol car on the western side of the street, facing oncoming traffic, and exited the vehicle with Officer Esparra to approach the men. (T16:9-20.) Officer Hilburn stated that, when he approached Banks, he did not have his pistol drawn and did not have his hand on his gun. (T24:13-22; T41:1-3.)
According to Defense Exhibit A, an aerial map of the Bergen Avenue area, Ege Street runs parallel to and south of Virginia Avenue. Officer Hilburn's testimony that he stopped Banks after turning right from Virginia Avenue onto Bergen Avenue conflicts with the police report's statement that Banks was stopped on Bergen Avenue between Ege Street and Virginia Avenue. In order to stop Defendant on Bergen Avenue between Ege Street and Virginia Avenue, Officer Hilburn would have had to have made a left turn onto Bergen Avenue.
Officer Hilburn stated that he and his partner ordered the men to stop, and that the men complied. (T16:22-24.) Officers Hilburn and Esparra then asked the men to "get against the fence so we can search them." (T17:1-2.) Officer Hilburn approached Banks and told him to place his hands against the fence. (T17:3-4, 7-10.) In response, Officer Hilburn testified, Banks placed his left hand against the fence, but kept his right hand "clinched to his body, as if he was protecting something." (T17:9-15.) Officer Hilburn grabbed his right wrist and placed it on the fence. (T17:20-21.) Banks then acted "real nervous," and urinated on himself. (T17:23-24.)
At that point, Officer Hilburn began the pat down search, and felt a heavy object in Banks' right coat pocket. (T18:1-13.) When he reached inside the coat pocket, Officer Hilburn recovered a gun. (T18:15-16.)
B. Testimony of Officer Edward Esparra
Officer Esparra, who had been a Jersey City police officer for just over two months at the time of the incident, testified that he was on patrol duty with Officer Hilburn on February 20, 2007. (T89:1-25; T90:1; T97:4-6.) Officer Esparra sat in the passenger seat of the patrol vehicle, while Officer Hilburn drove. (T90:11-16.) Officer Esparra testified that he and Officer Hilburn were driving northbound on Bergen Avenue when he spotted two men walking north about twenty to thirty feet away from the car. (T91:1-8; T92:14-16; T100:1-2.) He later identified one of the men as Banks. (T96:3-8.)
When examined by the Court, however, Officer Esparra could not remember what direction the patrol car was traveling on Bergen Avenue — north to south or south to north. (T118:1-3.)
Officer Esparra's testimony regarding the exact location of Banks and Snipe was imprecise. Officer Esparra first stated that the patrol car was just in front of the two men, and that Banks' back was turned slightly towards the car. (T92:5-9; T118:5-9.) On cross-examination, after noting several times the vagueness of his recollection, Officer Esparra testified that Banks and Snipe were walking towards the police car and that the car was driving towards the men, that is, on the same side of the street. (T101:21-23.)
Officer Esparra observed Banks holding an object in a "cantered" and "downward position." (T91:10-15.) Officer Esparra testified that he suspected the object to be a handgun. (T91:10-15.) The object looked like a handgun, Officer Esparra explained, because he could see "the barrel, long barrel, and you see the handle and the — where the rack position is at." (T93:10-13.) Officer Esparra also testified, "You could clearly see the butt of it and the nozzel." (T92:12-13.) Immediately after seeing the gun, Officer Esparra heard Officer Hilburn ask him, "Did you see that?" (T94:6-8; T102:2-12.)
Officer Esparra defined the term "cantered" to mean "slightly," or "in a showing position." (T91:17-24.) Officer Esparra continued on to explain that Banks seemed to be showing the gun to Snipe. (T91:25; T92:1.)
Officer Esparra also admitted that the police report does not indicate that the object Banks held looked like a gun, or that the object appeared to have a barrel, a rack, and a handle. (T111:21-23; T112:1-2.)
Officer Esparra stated that the barrel of the gun was approximately four inches in length. (T93:13-18.) He also explained that the rack is the upper portion of the gun. (T93:23-25.)
Officer Esparra testified that he did not remember his response to Officer Hilburn's question. (T102:13-15.)
After seeing Banks holding the object, the officers pulled up next to the men, exited the patrol vehicle, and ordered the men to stop. (T94:9-12; T96:14-23.) Officer Esparra did not draw his weapon, but was in the "safety position." (T97:10-12.)
Officer Esparra could not remember whether Officer Hilburn parked the patrol car on the eastbound or the westbound side of Bergen Avenue. (T118:13-15, 25; T119:1-3.)
Officer Esparra described during his testimony standing in the "safety position." (T97:12.) In his view, this meant that he had his right hand on the handle of his gun, with the holster strap off and the safety on his gun also in the off position. (T97-15-20.) According to his testimony, he did not draw his weapon. (T97:21-25.)
Officer Esparra testified that he did not know what Officer Hilburn was doing with his gun when they approached the men. (T105:6-25; T115:13-22.)
Officer Esparra testified that he approached "the male with the colorful jacket," and that Officer Hilburn approached "the male with the green jacket." (T94:17-22.) While searching Banks' companion, Officer Esparra was also able to observe Banks' search. (T95:1-3.) Officer Esparra described Banks' demeanor as "nervous." (T96:10-12.) He testified that Banks did not follow Officer Hilburn's order to "get on the fence," but instead "clenched up" and put his hands in his pockets. (T95:5-11; T106:22-24.) Officer Esparra testified that Officer Hilburn told Banks to remove his hands from his pockets, then grabbed Banks before proceeding to perform a pat down search. (T95:5-8, 17-19; T107:2-3.)
The police report states that, on the night in question, Banks was wearing an olive green coat, and that Snipe was wearing a black coat with a camouflage hood. (Def. Exh. B.) Because Officer Hilburn affirmatively stated that he searched Banks, and because Officer Esparra testified that he did not search the man ultimately arrested for possession of a weapon (T106:5-6), this Court will infer that Officer Esparra searched Snipe.
Officer Esparra admitted that the police report does not contain any information indicating that Banks was acting "nervous" on the night in question. (T116:18-20.)
Officer Esparra defines the term "clenched up" as the act of getting "in a safety stance," or getting "tight." (T95:9-11.) Officer Esparra also admitted that the police report does not include any information about Banks "clenching up" or grabbing his coat. (T113:23-25; T114:1-2.)
Officer Esparra also testified that Banks' arms were "holding his pockets." (T95:12-13.)
C. Testimony of Norris Snipe
Norris Snipe ("Snipe"), a twenty year-old male who currently lives in Atlanta, Georgia, testified that he was with his brother, Banks, on the night in question. (T46:15-23; T48:16-22.) Snipe and Banks had visited their friend Duke at around five or six o'clock in the afternoon on February 19, 2007. (T49:6-7; T55:15-21; T67:1-5.) They left Duke's house sometime before their encounter with the police at 3:25 a.m. on February 20, 2007, and walked down Bergen Avenue towards their aunt's house (where both Snipe and Banks resided at that time). (T48:11-17; T55:22-25; T57:20-23; T58:10-18.) Snipe stated that there was no one else on the street, and that he walked closest to the street. (T69:17-23; T73:17-19.)
During the walk, Snipe testified, Banks held his cell phone, which he described as a black "flip phone." (T52:12-23.) Banks and Snipe conversed while they walked, but Banks periodically stopped their conversation to answer his cell phone. (T49:18-24.) Snipe testified that Banks never held nor showed to him a gun while they were walking down the street. (T54:9-25; T55:1.)
After walking for about ten minutes, Snipe stated, the police "came from behind us [Banks and Snipe] on Bergen Avenue on the opposite side of the street." (T49:12-14; T50:3-5; T74:1-4.) When the patrol car stopped, "the lights were flashing, and they [the officers] got out of the door." (T74:6-7.) Snipe testified that the officers "got out of the [patrol] car with their guns drawn" and ordered them to stop. (T50:4-6, 16-17, 20-21.) Banks and Snipe complied with the officers' order, and did not run. (T50:10-11; T51:10-11.)
Snipe testified that Banks still had his black cell phone in his right hand when the officers approached them. (T53:24-25; T54:1-8.) Banks asked the officers if he could make a phone call, but "[t]he cop made it clear he wasn't going to be able to do that" by saying "shut the fuck up, you're not going to use a cell phone." (T50:12-13; T75:23-25.)
To describe where he and Banks were stopped, Snipe pointed on the aerial map labeled Defense Exhibit A to a gate located on Bergen Avenue between Virginia Avenue and Ege Street. (T52:14-23.) Upon approaching the men, one officer pushed Snipe towards this gate and started to search him. (T51:15-17; T61:19-25; T62:1-7.) While he was being searched, Snipe observed Banks' search. (T51:25; T52:1.) Snipe stated that Banks obeyed the officers' directions. (T51:23-24.)
Banks also identified Defense Exhibit D as a picture of the gate located between Virginia Avenue and Ege Street. (Def. Ex. D; T52:25; T53:1-11.)
D. Testimony of Carol Dominguez
Carol Dominguez ("Dominguez"), who works as an investigator for the Federal Public Defender's Office, testified regarding her work on Banks' case. (T77:19-23.) Dominguez stated that she subpoenaed a cell phone company for the phone records describing Banks' use of his cell phone on the night in question. (T81:17-24.) The phone records indicated that Banks was "chirping" on the phone six times between 3:24 a.m. and 3:26 a.m. (T87:11-25.)
To show that the phone records reflected Banks' use of one of his cell phones, Dominguez identified two cell phones as belonging to Banks, then testified that, in July of 2007, she obtained these cell phones from Banks' aunt after the aunt had retrieved them from law enforcement officials. (T84:21-25; T85:1.) She verified that the cell phones belonged to Banks by identifying for this Court the property receipt that the police gave to Banks' aunt when the cell phones were returned, and which Banks' aunt then gave to Dominguez in July of 2007. (T85:22-25; T86:1-2; Def. Ex. C.) Dominguez also certified that the phone number in the black cell phone matched the phone number listed on the cell phone records. (T84:3-15.)
Dominguez described Banks' cell phone as a "chirp phone," which operates like a walkie-talkie. (T87:17-18.) Instead of calling a phone number, the cell phone "chirps you to the next person that has a chirp phone." (T87:18-19.)
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 41(h) provides that "[a] defendant may move to suppress evidence in the court where the trial will occur, as Rule 12 provides." FED. R. CRIM. P. 41(h). Rule 12 requires a motion to suppress evidence to be raised before trial. FED. R. CRIM. P. 12(b)(3)(C).
A defendant who files a motion to suppress ordinarily carries the burden of proof. United States v. Acosta, 965 F.2d 1248, 1257 n. 9 (3d Cir. 1992) (citing Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978)). However, where a search is conducted without a warrant, as is the case here, the burden shifts to the Government to demonstrate, by a preponderance of the evidence, that the warrantless search was conducted pursuant to one of the exceptions to the warrant requirement. United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995); United States v. Herrold, 962 F.2d 1131, 1137 (3d Cir. 1992).
III. DISCUSSION
The Fourth Amendment provides individuals with the right to be free from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 30 (1968). Police officers may perform a brief investigatory stop without violating the Fourth Amendment, however, if "the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123 (2000); Terry, 392 U.S. at 30.
The Third Circuit has explained that "reasonable suspicion requires a `particularized and objective basis for suspecting a particular person stopped of criminal activity.'" United States v. Fleetwood, 235 F. App'x 892, 895 (3d Cir. 2007) (citing United States v. Brown, 448 F.3d 239, 246 (3d Cir. 2006)). To determine whether the officers had reasonable suspicion, courts must look at the totality of the circumstances, "including the police officer's knowledge, experience, and common sense judgments about human behavior." United States v. Cortez, 449 U.S. 411, 417-18 (1981); United States v. Ali, 136 F. App'x 481, 483 (3d Cir. 2005). "Reasonable, articulable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, and only a minimal level of objective justification is necessary for a Terry stop." United States v. Delfin-Colina, 464 F.3d 392, 396 (3d Cir. 2006). "However, a mere hunch or inchoate and unparticularized suspicion cannot justify a stop and frisk under Terry." United States v. Brown, 159 F.3d 147, 149 (3d Cir. 1998).
To justify the stop, the Government points to facts in the police report stating that Banks was holding a large black object while walking in a high crime area at night. It is well-established that an individual's presence in a high crime area, alone, is insufficient to warrant a stop and frisk. See Brown v. Texas, 443 U.S. 47, 52 (1979). Similarly, "[a] late hour, without additional indicia of criminal activity, is insufficient by itself to create reasonable suspicion to justify a Terry stop." Johnson v. Anhorn, 416 F. Supp. 2d 338, 358 (E.D. Pa. 2006). Therefore, in addition to Banks' presence in a high crime area at a late hour, the Government's case relies on the police report's attestation that Banks was holding a "large black object."
This Court agrees with the Government that, if the officers in fact saw what they believed to be a gun, then there existed reasonable suspicion to stop and frisk Defendant. However, this Court is not required to accept as true the testimony proffered by the officers. "[I]t is well-settled that, at a hearing on a motion to suppress, the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge." United States v. Wadley, Criminal No. 07-166, 2007 WL 4593058, at *2 (W.D. Pa. Dec. 28, 2007); see also Gov't of Virgin Is. v. Gereau, 502 F.2d 914, 921-22 (3d Cir. 1974). Credibility in part is determined by whether one version of the competing versions of the facts has the ring of truth in a way superior to the others.
Here, the officers' credibility is greatly tarnished by their failure to include in the police report their alleged belief that the "large black object" held by Banks was indeed a gun. At the suppression hearing, Officer Esparra stated that he saw Banks holding a gun, explaining that he was able to identify the handle, the barrel, and the rack. Similarly, Officer Hilburn testified that he noticed Banks carrying "a black object with a barrel-like shape to it," and that he concluded, at that moment, that the object was a gun.
Surprisingly, these observations are absent from the police report. (T34:13-15.) In fact, the police report does not include any of the descriptive terms that the officers used to describe the "large black object" in their testimony. (T34:16-18.) If Officers Hilburn and Esparra saw Banks holding a gun, they would have included this important piece of information in the police report. Even if the officers were not certain that Banks was holding a gun, it defies logic why the officers would choose not to mention their suspicion in the report. The missing information suggests that the officers fabricated their testimony in a transparent attempt to make the arrest stick.
Setting aside this Court's disbelief that Officer Esparra saw the handle, the barrel and the rack of the gun while observing Banks, in the dark, from thirty to fifty feet away, it is unclear why Officer Esparra would not urge Officer Hilburn to state in the police report that they, unequivocally, saw Banks holding a gun. In addition, both officers noted that their supervisor had to sign off on the report. Frankly, it is inconceivable that a veteran officer could hear that two officers saw a gun without requiring them to include this information in the official police report.
The police report also does not contain other relevant, material information conveyed by Officers Hilburn and Esparra at the suppression hearing. The police report does not state that Banks "clenched up" when the officers approached him (T31:2-4), or that Banks refused to place both hands against the fence when asked (T17:9-12). Officer Hilburn's statement that Banks "was acting real nervous, and he wound up urinating on himself" is also absent from the police report. (T17:23-24.) The omission of this information from the police report makes this Court disinclined to accept these facts as true. The report, drafted within a few hours after the arrest, represents a thorough, accurate, and complete recollection of the event from the perspective of both officers. The officers' failure to note these material facts in the police report dissuades this Court from relying on these facts to uphold the constitutionality of the stop and frisk. Cf. United States v. Ayala, No. CRIM. A. 04-473, 2004 WL 2905243, at *3 (E.D. Pa. Dec. 10, 2004) (denying defendant's motion to suppress evidence and finding that statements in officers' suppression hearing testimony that were absent from the police report were minor in nature because they did not implicate any material facts).
A detailed examination of the witnesses' testimony at the suppression hearing highlights other discrepancies in the facts presented by the Government. These factual inconsistencies further undermine the credibility of the Government's witnesses.
First, Officers Hilburn and Esparra presented conflicting testimony regarding where they were located when they initially spotted Banks and Snipe. Officer Esparra testified that the patrol car was on Bergen Avenue when they observed the Defendant. Officer Esparra also noted that they approached Defendant and his brother from behind, and then moved parallel to them. In contrast, Officer Hilburn stated that the patrol car was on Virginia Avenue facing west, near the corner of Virginia and Bergen Avenues. From across the street, Officer Hilburn claims that he saw Banks walk in line with the patrol car's headlights, holding a large black object. Officer Hilburn testified that he turned right onto Bergen Avenue before parking the car alongside the men.
Officer Esparra's testimony regarding the position of the patrol car cannot be believed because of its contradictions: Officer Esparra testified on direct examination that the car was in front of Banks and Snipe as both the car and the suspects traveled north on Bergen Avenue. Officer Esparra testified on cross examination, however, that Banks and Snipe walked towards the patrol car as it drove north on Bergen Avenue. Similarly, as stated in footnote four of this Opinion, Officer Hilburn's testimony about the patrol car's location lacks credibility because it does not mesh with the facts stated in the police report, which he authored.
Officer Hilburn's testimony also does not mesh with the police report, which states that Banks and Snipe were stopped on Bergen Avenue between Ege Street and Virginia Avenue. Officer Hilburn would have had to turn left onto Bergen Avenue in order to stop Banks and Snipe at that location.
Second, the angle at which Officers Hilburn and Esparra viewed Banks makes it highly unlikely that they would have been able to see a gun. Snipe testified that, prior to the stop, the patrol car was positioned behind them, driving north on Bergen Avenue. Under such circumstances, the officers could only see Banks' back, and had no angle from which to see him cradling a gun in his hands. Snipe also testified that he walked closest to the street, which would have further impaired the officers' line of sight. Moreover, the officers would have great difficulty seeing a gun with a four-inch barrel from thirty to fifty feet away at night, against the backdrop of Banks' dark-colored coat. If in fact Banks cradled the gun in the palms of his hands, the gun was not positioned away from Banks' body, and thus could not have been clearly visible in the streetlight.
Third, the witnesses did not provide consistent testimony about the officers' use of their guns. Snipe repeated several times in his testimony that the officers drew their guns. Snipe's credibility is bolstered by this testimony, since such a reaction by the officers meshes with their purported suspicion that Banks had a weapon. In contrast, Officer Hilburn testified that neither he nor his partner drew their guns, or held their hand over their pistols, upon exiting the patrol car and approaching Banks and Snipe. Officer Esparra offered a third account of the situation when he testified that he held his gun in the "safety position," as he approached Banks. Specifically, Officer Esparra claims that he had his hand on his gun but kept the safety in the "on" position, which renders the gun inoperable. The inconsistent statements yielded from Officers Hilburn and Esparra further diminish the credibility of both witnesses.
Moreover, the officers' decision not to draw their guns is at odds with their emphatic belief that Banks was carrying a weapon. Why would two trained police officers approach a man perceived, by each of them, to be armed and dangerous without taking necessary precautions to ensure that each could retaliate, if attacked? That is, if both officers had seen a gun, or what they thought to be a gun, training, reason, logic, and common sense would demand that they not exit their patrol vehicle without first becoming poised to respond to the threat of imminent danger from an armed man. In particular, Officer Esparra was unequivocal in stating that he had seen a gun. Coupling that emphatic statement with his testimony that Banks "clenched up" and covered his pockets with his hands only reaffirms this Court's perception that the officers would not have approached Banks without properly protecting themselves.
Fourth, the Defendant's witnesses offered a plausible alternative explanation for the supposed "large black object" held in Banks' hands that night. Testimony from Snipe and Dominguez suggests that Banks was not holding a gun, but instead was holding his black cell phone. Snipe testified that Banks had used his cell phone a number of times during their walk home from Duke's house. Dominguez bolstered Snipe's testimony by producing Banks' cell phone records, which indicate that Banks "chirped" on the phone six times between 3:24 a.m. and 3:26 a.m. Banks' constant phone use between 3:24 a.m. and 3:26 a.m. suggests that the "large black object" that Officers Hilburn and Esparra purportedly saw was in fact a cell phone.
The Government set forth no evidence refuting Defendant's argument that the "large black object" could have been his cell phone. Neither the officers' testimony nor the police report reflect that Banks was holding two things in his hand, or that he was holding one object in each hand. Indeed, the officers' testimony did not admit that Banks was holding a cell phone, or offer any explanation diminishing the significance of the cell phone records. By introducing evidence showing that the "large black object" was most likely a cell phone, this Court is even more persuaded that the officers did not see the handle, barrel, and rack of a gun.
Fifth, the idea that Banks chose to show the gun to Snipe, in plain view, on Bergen Avenue at around 3:30 a.m. is absurd, at best. Snipe and Banks had lived together at an aunt's house for two months, and had spent ten hours together at a mutual friend's house on the night in question. Yet, the officers' testimony asks this Court to believe that Banks chose to show the gun to Snipe while outside on the street, as opposed to showing him the gun inside either of the aforementioned residences. The patrol car's presence in plain view, with its headlights on, further highlights the incredulousness of the officers' version of the events. By either officer's account, the patrol car was stopped parallel to or in front of Banks and Snipe prior to the stop. With this police presence within Banks' line of sight, it seems extraordinarily unlikely, at best, that Banks would choose to show the gun to Snipe at that time. This Court finds it difficult to believe that Banks would show the gun to Snipe in public when he had a multitude of opportunities, behind closed doors, to show the gun to him.
In its brief, the Government attempts, unsuccessfully, to analogize this case to other cases in which courts have upheld a police officer's decision to perform a stop and frisk. The Government relies first on the persuasive value of the Second Circuit's opinion in United States v. Lucas, 68 F. App'x 265 (2d Cir. 2003). In Lucas, two officers riding in a marked patrol vehicle noticed the defendant and another individual walking down the street, observed the defendant "mess around with his waistband," and saw "what appeared to be a revolver, handgun or something." Id. at 266-67. When questioned by the court, the officer testified that he saw "a dark object" that "looked kind of like the handle of a pistol." Id. at 267 n. 1. The Second Circuit held that the officers' observation of an object that appeared to be a gun created reasonable suspicion justifying theTerry stop. Id. at 267.
Lucas is silent, however, as to whether the police officer included information in his police report expressing that he believed the dark object was a revolver or a handgun. The Second Circuit was not faced with the key issue raised in this case: whether this Court must accept as true additional, material facts presented by the police officers in their testimony, but not in their police report.
After reviewing the relevant submissions and the testimony, this Court rejects the Government's factual argument that Officers Hilburn and Esparra saw Banks holding a gun, or an object that appeared to be a gun, on the night in question. Despite the numerous inconsistencies in the officers' testimony, the Government urges this Court to believe that Officers Hilburn and Esparra remember, nearly a year later, additional material information that is notably absent from the police report. Indeed, the hearing testimony reflects several instances where Officer Esparra continually repeated that these events occurred a long time ago. (T101:5, 23; T106:2; T107:12; T111:5-7; T118:3, 15; T119:2.) Without credible evidence proving that, on the date in question, the officers perceived the "large black object" to be a gun, the Government cannot prove that the officers held a reasonable suspicion of criminal activity.
The case of Adams v. Williams provides no quarter to the Government's tenuous argument. In Adams, a police officer on patrol duty during the early morning hours in a high-crime area was approached by a known informant. 407 U.S. 143, 144-45 (1972). The informant told the officer that an individual sitting in a nearby vehicle was carrying narcotics and had a gun in his waistband. Id. The officer approached the car identified by the informant, and asked the occupant to open the door. Id. at 145. When the occupant responded by rolling down the window, the officer reached into the car and removed a gun from the occupant's waistband. Id. The Supreme Court held that the officer responded reasonably to the known informant's tip, and was justified in approaching the vehicle and removing the gun from the occupant's waistband. Id. at 146-47.
Here, however, the officers' hunch that Banks had a gun was not buttressed by a known informant. As counsel for the Defendant stated during the suppression hearing, the police report does not allege that Officers Hilburn and Esparra were responding to the area because of a complaint or a call. (T10:14-20.)
The Government also relies on the Supreme Court's decision inUnited States v. Mimms, 434 U.S. 106 (1977). In Mimms, two police officers observed the defendant driving a vehicle with an expired license plate. Id. at 107. The officers stopped the vehicle to issue a traffic summons, and asked the defendant to step out of the car to show his license and registration. Id. As the defendant stepped out of the car, one officer noticed a large bulge under the defendant's jacket. Id. The officer thereupon performed a Terry frisk and found a gun. Id. The Supreme Court upheld the constitutionality of the Terry frisk, finding that the bulge in the defendant's jacket was sufficient to create reasonable suspicion that the defendant was armed and dangerous.Id. at 111-12.
The facts supporting the constitutionality of the stop inMimms, however, are discernibly distinct from those in the instant case. In Mimms, the Supreme Court explained that the defendant was lawfully stopped because he was driving with expired license plates, and that the Defendant was lawfully ordered out of the car based on the inherent safety concerns at stake when an officer approaches a driver. Id. at 109-10. In this case, however, the lawlessness of the stop is apparent. Officers Hilburn and Esparra did not approach Banks after observing a blatant violation of the law, such as driving with expired license plates. There is nothing intrinsically illegal about carrying a large, black object in public. Mimms does not support the constitutionality of the Terry stop performed by the officers in this case.
After considering the factual evidence presented in the briefs and at the suppression hearing, this Court is not convinced that Officers Hilburn and Esparra believed that criminal activity was afoot. The police report does not reflect the officers' belief that Banks was armed with a gun. The officers' observation that Banks carried a "large black object" is not credible, and, even if credited, does not automatically signal that Banks was holding a gun. The large black object, given the facts here, was, at best, a cell phone. Although Officers Hilburn and Esparra attempt to increase the strength of the report by testifying that they unequivocally saw a gun, the numerous inaccuracies in their testimony diminish severely their credibility. Moreover, this Court is not inclined to read into the police report additional, material facts that the officers failed to include.
This Court finds that the Defendant was subjected to an unconstitutional Terry stop and frisk, and that the fruits of the illegal search shall not be admitted into evidence.
IV. CONCLUSION
For the reasons stated above, Defendant's motion to suppress evidence seized after the Terry stop and frisk on Bergen Avenue in Jersey City, New Jersey is granted.