Opinion
04-CR-798 (DLI).
January 19, 2005
MEMORANDUM AND ORDER
Defendant Charles Berry, having been previously convicted by a crime punishable by more than one year of imprisonment, is charged with possessing a weapon, in violation of 18 U.S.C. § 922(g). Before the court is a motion by defendant Berry to suppress three statements. A hearing was held on December 22, 2004, at which the government presented two witnesses, New York City Police Officer Paul Gillespie and Lieutenant Michael Saladino, assigned to the Brooklyn North Anti-Crime Unit. The court finds the testimony of Officer Gillespie to be credible and the testimony of Lt. Saladino to be credible to the extent that it corroborates that of Officer Gillespie. For the reasons set forth below, the court finds the first and second statements admissible but finds that the third statement must be suppressed.
I. FINDINGS OF FACT
On August 19, 2004, at approximately 12:30 a.m., New York City Police Department (NYPD) Officer Paul Gillespie was patrolling in the 81st precinct in Brooklyn in an unmarked vehicle, which he drove. With him were Police Officer Alexander Grandstaff in the front passenger seat and Lt. Michael Saladino in the rear passenger seat. The officers, dressed in plain clothes and wearing their police shields out around their necks, were driving in the vicinity of Halsey and Howard streets in Brooklyn, with the windows down. The area was well lit by street lights.
Lt. Saladino, a fourteen-and-a-half-year veteran of the NYPD, testified that this was a high-crime area, known for drugs and violence. He knew of at least ten shootings or killings over the last few years in the three-block area where the defendant was arrested. Officer Gillespie, a twelve-year veteran police officer, also testified that the area was marked by a high incidence of crimes, including drugs, robberies, and gun shots.
Upon turning onto Howard Street, the police officers noticed two women on the left side of the street who seemed to be looking down the block, as if something was happening there. Just up ahead, the officers saw a crowd gathered and several youths scattering in different directions. Some were walking, and some were running. At that moment, Officer Gillespie said, "Look at this guy over here," pointing to defendant Charles Berry, who was to the right of the officers' vehicle. Lt. Saladino testified that the defendant was traveling in the same direction as the officers' car.
He also testified that Berry was wearing a basketball warm-up jacket, that one hand was underneath the jacket holding a large object, but that the jacket was open. Officer Gillespie was the first officer to notice Berry. Officer Gillespie testified that the defendant was walking away from the crowd towards the officers. Berry had a large object underneath a three-quarter length basketball-type jersey, which was closed. Both of Berry's hands were underneath the shirt. Based upon Officer Gillespie's knowledge of that high-crime area and the fact that people were running because apparently something had just happened, he believed that Berry had a firearm. Just as Officer Gillespie drew the attention of his fellow officers to Berry, he and Berry made eye contact. Berry stopped, looked at Officer Gillespie, and turned and started walking northbound, the same direction in which the officers were traveling.
The officers briefly lost sight of the defendant, who moved behind a minivan parked along the street. The officers then heard what sounded to them like metal hitting the ground. Both officers testified that, based upon their experience, they believed this sound to be a gun hitting the ground. Lt. Saladino testified that he has heard this kind of sound over ten times. Officer Gillespie testified that he has heard a similar sound dozens of times, and that it has a distinctive sound.
The officers got out of their car. Lt. Saladino yelled, "Police! Don't move!," and Officer Grandstaff ordered the defendant to the ground. Lt. Saladino's testimony is somewhat contradictory concerning the handcuffing of the defendant. On direct examination, Lt. Saladino testified that the defendant was secured on the ground and handcuffed before any recovery of a gun. However, on cross-examination, Lt. Saladino testified that Berry was not handcuffed until Officer Gillespie had recovered a gun. Officer Gillespie testified that he recovered the gun from behind the van after Officer Grandstaff had handcuffed the defendant. The officers did not see anyone else behind the van. After discovering the gun, which was a large machine-gun-type weapon, Officer Gillespie told the defendant that he was being arrested. Both officers testified that all these events occurred very quickly.
Immediately upon being advised that he was under arrest, defendant stated, "It's not my gun. You won't find my fingerprints on it." Officer Gillespie responded, "Don't worry about it. You are still getting arrested for it." Officer Gillespie did not give Berry any Miranda warnings at that point, nor did he ask any questions about the gun or what Berry was doing in the area.
After Berry's arrest, several individuals in the area alerted the police that a shooting had occurred around the corner. Officer Gillespie went to investigate the matter and returned shortly to get Berry and show him to one of the two women who had been shot. This woman told them that Berry was not the man who had shot her and that Berry was her cousin.
It is undisputed that at no point did the defendant receive any Miranda warnings. During the ten or fifteen minutes that the officers kept the defendant at the shooting scene, the officers did not ask him any questions or otherwise converse with him.
Officer Gillespie testified that, during the brief car ride to the precinct, there was no conversation with Berry, but he then stated that they may have talked about going to the precinct, unloading the gun, and processing the arrest. There may have been some conversation about the shooting and the fact that Berry had not been identified, but he could not recall any specific conversation, except that Berry repeated that the gun was not his and that they would not find his fingerprints on it.
Upon arrival to the precinct, Officer Gillespie took the defendant's pedigree information. Officer Gillespie, who heard the defendant make these statements, described the second statement as follows:
Q: Once you arrived at the [p]recinct, what happened?
A: We brought the defendant in front of the desk. . . .
Q: Then what happened there?
A: In front of the desk you ask him like pedigree questions, like his name and age, date of birth, and stuff like that. Then he again told me that I am not going to find his fingerprints on the gun. It is not his.
Q: What was your reaction to that?
A: I said don't worry about it. I said my fingerprints are on it, my partner's are on it. I said look, and I took the gun and I wiped it on my shirt.
(Hr'g at 62.) Officer Gillespie testified that he faked wiping off the gun by holding it up to his shirt with his right hand and feigning a rubbing motion across the shirt. Officer Gillespie stated that he had no intention of getting the defendant to say something else and that he faked wiping the gun to get the defendant to stop saying that his prints were not on the gun. Officer Gillespie testified that Berry showed no reaction.
According to Officer Gillespie's testimony, defendant made the third statement while in the detective cell on the second floor of the precinct:
A: Basically, when I asked him for his driver's license, he handed it to me. I told him, I said, go to sleep, it is going to be a little while, we have a lot of paperwork to do. So he went back and laid down. And then he stood up again and he said, listen, my fingerprints aren't on it. I said, yeah, I know, you told me that. I said go back to sleep. He said why don't you do that thing that you did downstairs. I said what do you mean? He goes wipe it off on your shirt.
Q: How did you react to that?
A: I laughed and Officer Grandstaff laughed too. Don't worry about it. Your fingerprints aren't on it, ours are on it.Id. at 64. On cross-examination, Officer Gillespie presented another summary of this statement:
After I put him in the cell I asked him for his driver's license again, because I didn't have the paperwork with his pedigree information. I told him, I said, I have to do paperwork. It is going to be a little while. Go back and go to sleep. So he walked back, laid down on the bench. He got back up a couple of seconds later, he said, listen, I am a little nervous, can you do that again? I can't sleep. I will sleep a little better.Id. at 86. Officer Gillespie testified that he had no intention of questioning Berry about anything and only meant to communicate that he had paperwork to do.
II. CONCLUSIONS OF LAW
A. Reasonable Suspicion to Stop and Detain
"[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot,' even if the officer lacks probable cause." United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Reasonable suspicion arises where law enforcement officers have some objective justification for stopping an individual that is more than an "inchoate and unparticularized suspicion or hunch of criminal activity." Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000) (citing Sokolow, 490 U.S. at 7; quoting Terry, 392 U.S. at 27) (internal quotation marks omitted). The court must consider the totality of circumstances from the point of view of a trained and experienced officer. United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). Factors that may justify reasonable suspicion include any nervous or evasive behavior exhibited by the individual and facts about the location where the individual is observed. Wardlow, 528 U.S. at 124.
The court finds that the police officers had reasonable suspicion to stop and detain the defendant. After noticing a crowd in the middle of the street at around 12:30 a.m., the officers observed the defendant with a bulge under his jersey, which he appeared to be supporting with his hands, walking in a high-crime area. Officer Gillespie, who first spotted the defendant, testified that Berry was walking towards the officers, noticed them, turned, and walked away from them. Lt. Saladino and Officer Gillespie, who both have over ten years of experience in the police force, testified that, when Berry disappeared behind a parked van, they believed they heard the sound of a gun hitting the ground. The officers thus had reasonable suspicion to believe that the defendant may have been in possession of a firearm, which is a violation of N.Y. Penal Law § 265.01(1).
Berry, however, is being charged under 18 U.S.C. § 922(g).
B. Probable Cause to Arrest
Defendant claims that Berry's Fourth Amendment rights were violated because he was arrested before probable cause arose, i.e., before the gun was recovered. Counsel argues that having Berry lie face down on the ground with his hands cuffed behind his back constituted an arrest. The government argues that, under the totality of the circumstances — i.e. the nature of the high crime area, the crowd of people dispersing in different directions at about 12:30 a.m., the defendant apparently holding a large object under his jacket as he walked away from the crowd and towards the police, his apparently evasive action upon noticing the police officers, the sound of what the veteran officers believed was a firearm hitting the ground, and the officers' concern that Berry might have been armed — the handcuffing of defendant was reasonable under the circumstances and did not rise to the level of an arrest.
The court must determine whether the stopping of Berry ripened into a de facto arrest before probable cause arose. The defendant concedes that once the gun was found, there was probable cause to arrest. (H'rg at 100.) The question, then, is whether holding defendant on the ground and handcuffing him caused the investigatory stop to ripen into an arrest. In determining this, the Second Circuit has articulated several relevant factors:
the amount of force used by the police, the need for such force, and the extent to which an individual's freedom of movement was restrained, and in particular such factors as the number of agents involved, whether the target of the stop was suspected of being armed, the duration of the stop, and the physical treatment of the suspect, including whether or not handcuffs were used.United States v. Vargas, 369 F.3d 98, 101 (2d Cir. 2004) (quoting United States v. Perea, 986 F.2d 633, 645 (2d Cir. 1993)) (internal quotation marks and citations omitted). Although using handcuffs is not usually appropriate during Terry stops, "`intrusive and aggressive police conduct' is not an arrest `when it is a reasonable response to legitimate safety concerns on the part of the investigating officers.'" Id. at 102 (quoting United States v. Miles, 247 F.3d 1009, 1012 (9th Cir. 2001)). The Second Circuit also has held that "it is well established that officers may ask (or force) a suspect to move as part of a lawful Terry stop." United States v. Gori, 230 F.3d 44, 56 (2d Cir. 2000) (collecting a number of cases, including one where police officers handcuffed a suspect).
In this case, the officers acted out of concern for their own safety and to secure the defendant while they investigated the metal clank, which in their experience sounded like a gun hitting the ground. Handcuffing and holding the defendant to the ground was reasonable given the officers' heightened suspicions that, just moments before, criminal activity may have occurred in the vicinity, which they all knew to be a high-crime area. Lt. Saladino testified that, based on his experience, it is not uncommon for people carrying a gun to be in possession of another weapon. The court finds that, at the time the first statement was made, the officers' detention of the defendant had not ripened into an arrest. The court also finds that Berry's statement was spontaneous and not in response to any questions by the police. Therefore, the first statement shall not be suppressed.
The government also argues that, even before the gun was recovered, there was probable cause to arrest. The court need not address this issue since it finds that there was no arrest until after the gun had been recovered.
C. Spontaneous Utterance and Custodial Interrogation
As to the second and third statements, defendant's counsel argues that the statements about wiping the gun off were the result of the deceptive conduct of the police, which was the functional equivalent of interrogation, intended to elicit an incriminating response from Berry.
An individual must be given Miranda warnings when he is in custody and under interrogation. Miranda v. Arizona, 384 U.S. 436, S. Ct. 1602, 16 L. Ed. 2d 694 (1966). An individual is in custody if a reasonable person in that individual's position would feel that he is being restrained in a manner comparable to a formal arrest. United States v. Newton, 369 F.3d 659, 668, 671 (2d Cir. 2004). "Interrogation . . . refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). Voluntary statements made while an individual is in custody, but where there has been no interrogation, are admissible.
It is undisputed that the defendant was never given Miranda warnings. The second and third statements were made while Berry was in custody. Therefore, the sole question is whether he was subject to interrogation by any of the officers. Defendant argues that, under the totality of circumstances, Officer Gillespie's statements and actions should be viewed as the functional equivalent of interrogation, intended to elicit an incriminating response from Berry. Defendant cites Brewer v. Williams, 430 U.S. 387, 392, 405 (1977), where the Court held that a detective's statement during an isolated car ride to a murder suspect, known to be religious, that the victim should receive a "Christian burial" was interrogation.
At the precinct, before being placed in a holding cell, the police officers asked Berry his name, address, and whether he had been previously arrested. These inquiries by the police officers were routine booking questions, which do not require Miranda warnings. See Pennsylvania v. Muniz, 496 U.S. 582, 600-02, 110 S. Ct. 2638, 110 L. Ed. 2d 52 (1990). The court finds that Berry's second statement was spontaneously and voluntarily made. Accordingly, the court finds that the second statement is admissible.
The third statement, which Berry uttered in the holding cell on the second floor of the precinct, was made after Officer Gillespie, while booking the defendant downstairs, had pretended to wipe off the gun and told Berry not to worry. Defendant argues that this pretense or joking around was a psychological ploy intended to elicit an incriminating response. The Supreme Court has held that practices such as coaching witnesses to pick out the defendant from a line-up are the "functional equivalent" of interrogation. Arizona v. Maura, 481 U.S. 520, 526-27 (discussing Innis, 446 U.S. at 299, 301). Officer Gillespie's comments, however, were not so suggestive. Berry's third statement — on either of the summaries Officer Gillespie recalled — was not in response to any specific question made by Officer Gillespie, who on the second floor had only asked for Berry's driver's license and told him that he had a lot of paperwork to finish.
However, the question is whether Officer Gillespie should have known that his actions and statements to the defendant were "reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police." Muniz, 496 U.S. at 601 (quoting Innis, 446 U.S. at 301). Officer Gillespie heard Berry mention that his fingerprints were not on the gun numerous times and thus should have known that pretending to wipe off the gun was "reasonably likely to elicit an incriminating response." Indeed, Berry repeated his statement several times after he was displayed to a shooting victim and not identified as the shooter. Officer Gillespie should have known that the defendant would not have remained silent after a joke about wiping off fingerprints from the gun and that the most likely response would have been an acknowledgment of relief or gratitude for the gun having been wiped clean, i.e., an incriminating response. Berry's statement about feeling a little nervous and wanting the gun wiped clean again so he could sleep better hardly could be understood as a joke. Yet both officers Gillespie and Grandstaff laughed and then Officer Gillespie told Berry that he could not do so because his boss was there. The court finds that Officer Gillespie's conduct was sufficient to trigger Berry's Miranda rights. The third statement, therefore, is inadmissible.
III. CONCLUSION
WHEREFORE, for the reasons set forth above, defendant's motion is denied with respect to defendant's first two statements and is granted with respect to the third statement.
SO ORDERED.