Opinion
No. 03CR32E.
December 7, 2005
Report Recommendation
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) (Docket No. 27, Feb. 14, 2003). The instant matter before the Court is defendant's motion to suppress (Docket No. 31). The motion also seeks discovery and other omnibus relief.
BACKGROUND
Pleadings and Procedures
Defendant was indicted for one count of distribution of a controlled substance in or near a school, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 860(a), and one count for possession of controlled substance, in violation of 21 U.S.C. § 844(a) (Docket No. 26). Defendant filed this omnibus discovery motion on April 25, 2003 (Docket No. 31). The Government responded on May 14, 2003 (Docket No. 32), and the motion was argued on May 29, 2003 (Docket No. 34). The Court then determined that a suppression hearing was required (id.).
After much delay in conducting the hearing (see, e.g., Docket Nos. 45, 46, 48, 51, 53), the Court held a suppression hearing on November 22, 2004 (Docket No. 52; see Docket No. 54 (transcripts)), which concluded on March 7, 2005 (minute entry of March 7, 2005; see Docket No. 56 (transcripts)), with post-hearing submissions initially due from the defendant by April 14, 2005, and the Government by April 28, 2005, with the matter to be submitted by the latter date (Docket No. 56, Mar. 7, 2005, Tr. at 27).
Defendant then made a series of requests for additional time to file his post-hearing brief and the Court granted extensions of time (Docket Nos. 58, 59, 60, 61, 62, 63, 64, 65). Ultimately, defendant had until October 28, 2005, to submit papers (see Docket No. 66), and the Government's response was due by November 16, 2005 (see Docket No. 67), without any further extensions (Docket No. 65). The motion was deemed submitted as of November 16, 2005.
The Government requested, and was granted, a two-day extension from November 14, 2005, to file its responding memorandum.
Motion to Suppress
Defendant moved pursuant to Fed.R.Crim.P. 12(b)(3) to suppress physical and oral evidence obtained from him on October 10-11, 2001 (see Docket No. 31, Def. Atty. Aff. ¶¶ 37-38). Defendant contends that, at 4 pm on October 10, he left the Pikes Peak Deli at 1318 Fillmore Avenue, in Buffalo, when he decided to re-enter (Docket No. 31, Def. Atty. Aff. Ex. B., Def. Aff., "Def. Aff.", ¶ 1). After defendant made his purchase, Agent Greg McCarthy of the Buffalo Municipal Housing Authority and the Career Criminal Task Force ("task force") entered the deli (id. ¶ 2). According to defendant, McCarthy asked him to come toward him and to answer a few questions (id. ¶¶ 3, 5). Defendant walked toward McCarthy, who then put his hand on defendant and escorted him out of the deli (id. ¶ 6). Once outside, McCarthy pushed defendant into his vehicle, patted defendant down, and searched him (id. ¶¶ 7, 8-9). Defendant did not consent to the search and McCarthy did not seek defendant's permission (id. ¶ 10). Officers then removed defendant and obtained a statement from him (id. ¶ 11; Docket No. 32, Gov't Aff. Ex. C; Docket No. 54, Tr. of Nov. 22, 2004, at 38, Gov't Ex. C).
When he testified in 2004, McCarthy became an Erie County Sheriff's deputy. Docket No. 54, Nov. 22 Tr. at 3, 4-5.
Defendant executed a waiver of rights form at 4:55 pm on October 10 (Docket No. 32, Gov't Aff. Ex. B; Docket No. 54, Nov. 22 Tr. at 41, Ex. B). The substance found on defendant's person was tested and determined to be rock cocaine (Docket No. 32, Gov't Aff. Ex. D; Docket No. 54, Nov. 22 Tr. at 35, Gov't Ex. D). According to the statement executed by defendant, he does not know how to read or write (Docket No. 32, Gov't Aff. Ex. C; Docket No. 54, Nov. 22 Tr., Gov't Ex. C).
Defendant argues that McCarthy did not have reasonable suspicion of criminal activity when he confronted defendant or the agents lacked probable cause to conduct the search (Docket No. 31, Def. Atty. Aff. ¶¶ 41, 42). Defendant concludes that the physical evidence and statements obtained were fruit of the poisoned tree that must be suppressed (id. ¶ 44).
The Government, however, contends that defendant attempted to evade officers on two separate occasions. The agents were familiar with defendant from a prior occasion when he identified himself as someone else during a prior narcotic investigation. (Docket No. 32, Gov't Response at 3.) Agents were able to approach defendant in the Pikes Peak Deli (id.). McCarthy there questioned defendant and recovered a knotted off piece of plastic containing what was suspected of being crack cocaine from defendant's left sleeve (id. at 3-4). At the task force's office, defendant executed the waiver of rights form and the statement at issue here (id. at 4, Exs. B, C). The Government argues that defendant was properly searched (id. at 14).
Suppression Hearing
The suppression hearing consisted of examination of McCarthy. In the summer of 2001 McCarthy and his partner, members of a violent crimes task force, were interviewing people in the Mortimer and Camp Streets area regarding gang and narcotics activity, identifying subjects in the Fillmore Avenue area north of Martin Luther King Park (Docket No. 54, Nov. 22 Tr. at 5, 7, 8). On September 21, McCarthy and his partner again were investigating the Fillmore Avenue area regarding gang activity when they noticed three black men standing in the front yard of a house on Riley Street smoking a marijuana cigar (id. at 9). One of the men identified himself as Dimario Speed, who McCarthy later identified as the defendant in the courtroom (id. at 11). The three men were given the choice of moving along or staying while the area was searched; they chose to leave. McCarthy then searched the Riley Street yard and found crack cocaine in a work boot and a bumper in an abandoned vehicle parked in the side lot of the property (id. at 12-13). McCarthy, however, did not see defendant take anything from the abandoned vehicle (id. at 56).
An investigation of the title ownership of the vehicle did not reveal defendant to be its owner, Docket No. 54, Nov. 22 Tr. at 57.
A NYSPIN report on Speed did not indicate a minor marijuana conviction that Speed told McCarthy about on the street (id. at 16-17); this made McCarthy suspect that Speed was falsely identified himself to McCarthy (id. at 17, 60). The task force had a photograph (id. Gov't Ex. J) of a person identified by an informant as "Dip" or defendant Demarius Moore, who looked like Speed to McCarthy from the September 21st encounter (id. at 19, 20, Gov't Exs. J, K). McCarthy testified that informants told the task force that "Dip" (with others) was involved in several shootings in Buffalo between 2000 and 2002 (id. at 21).
McCarthy again saw the man McCarthy previously knew as Speed (hereinafter "defendant") on October 10 and wished to stop him because of the false identification given, the drugs found in September, and the photograph in the task force office (id. at 23-24, 77-78, 81). Defendant was walking towards McCarthy's car as it was driving northbound on Fillmore Avenue. But as defendant got closer and the agents attempted to speak with him, he turned around (id. at 24). As the agents slowed their vehicle, defendant began to stutter step or hesitate and turn around and headed the opposite direction (id. at 26, 27). The agents then turned their vehicle around to approach him from a different direction (id. at 27), eventually driving south down Fillmore Avenue. Defendant then saw the agents' car again as he walked southbound on Fillmore, he then began to travel northbound (id.). The agents stopped their vehicle near Pike's Peak Deli on Fillmore Avenue (id.). McCarthy steps out of the vehicle and called for defendant to stop; instead defendant entered the deli and McCarthy followed him in (id. at 28). McCarthy saw defendant looking at him in the deli's security mirror (id.).
McCarthy believed defendant was a known gang member and possibly armed, hence approached him with caution (id.). But McCarthy did not observe defendant with any weapons or bulges in his clothes (id. at 84, 86, 92). McCarthy then grabbed defendant by his sleeve and ordered him to stop (id. at 29) and then asked to speak to defendant outside of the store. McCarthy escorted defendant from the store holding defendant by his left arm and McCarthy's hand on his right shoulder (id. at 29, 31). As McCarthy escorted defendant, McCarthy felt a lump in defendant's left sleeve which McCarthy believed to be crack cocaine (id. at 31-32, 33, 100). The item that caused this lump, a knotted piece of plastic containing crack cocaine, was recovered from defendant later (id. at 102). McCarthy then continued to pat down defendant (to make sure defendant was not armed) and found a larger lump in defendant's left sleeve (id. at 33). Defendant then was handcuffed and arrested (id. at 34, 110). McCarthy conducted a further, more thorough search of defendant incident to the arrest and retrieved one-eighth of an ounce of crack cocaine and about one ounce of crack cocaine from defendant's left sleeve (id. at 34-35, 106). At the time of this more in depth search, however, defendant was not told that he was under arrest (id. at 112-13). Defendant then was advised of his Miranda rights in McCarthy's car and again in the task force office (id. at 36). In the office, defendant rendered his written statement (id. at 36-38, Gov't Ex. C).
Post-Hearing Submissions
Defendant filed his post-hearing memorandum (Docket No. 66), arguing that, under Terry v. Ohio, the officer had to "point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant" an intrusion upon the constitutionally protected interests of a citizen, 392 U.S. 1, 21 (1968). Here, defendant concludes that McCarthy observed nothing to reasonably warrant an intrusion into defendant's interests, seeing defendant again on the street on October 10, 2001, while defendant was alone and not engaged in any exchanges with anyone else, and not having apparent bulges or weapons (Docket No. 66, Def. Memo. at 12). Once in the deli, McCarthy admitted that he did not see any criminal activity committed by defendant (id. at 13; Docket No. 54, Tr. at 93). Defendant disputes McCarthy's contention that defendant engaged in suspicious activity, observing that he failed to note the instances of purported furtive activity (making eye contact, changing directions from the officer) (Docket No. 66, Def. Memo. at 13, 7-8; see Docket No. 54, Tr. at 95-96). McCarthy also admitted that he did not have information that defendant possessed a gun or observed a gun or a bulge on defendant when he was stopped (Docket No. 66, Def. Memo. at 13). Defendant argues that McCarthy failed to point to any reasonable or articulable facts which, taken together with rational inferences therefrom, reasonably warranted his intrusion upon defendant (id.), relying instead upon McCarthy's own "hunch" (id., see also Terry, supra, 392 U.S. at 27). Since the conduct was unjustified at its inception, defendant concludes that the fruit of the seizure (the cocaine and defendant's statements) should be suppressed (Docket No. 66, Def. Memo. at 14).
The Government replies that defendant lied about his identity to officers on September 21, 2001, and tried to evade the same officer two times on October 10, 2001. In the intervening weeks, Officer McCarthy tied defendant to other gun and gang activity. (Docket No. 67, Gov't Memo. at 12, 2-4).
DISCUSSION
Under Terry v. Ohio, 392 U.S. 1 (1968), the investigative stop and frisk of a suspect believed to be armed are distinct steps. First, the police need to have a reasonable suspicion of criminal activity to stop a suspect. Once stopped, that suspect can be questioned briefly. If the police have an articulable reasonable suspicion that the suspect is armed, the police may frisk the suspect. Terry holds that
"where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that a criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discovery weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken."392 U.S. at 30-31.
I. Terry Stop
The totality of the circumstances determines whether the authorities had reasonable suspicion that defendant was engaged in criminal activity to detain him. See United States v. Arvizu, 534 U.S. 266 (2002); United States v. Hospedales, 247 F. Supp. 2d 530, 537-38 (D. Vt. 2002) (court finds totality of circumstances were sufficient to detain defendant).
The Government argues here that a Terry stop occurred and that agent McCarthy had a reasonable suspicion that criminal activity was afoot. See Terry, supra, 392 U.S. at 30. (Docket No. 32, Gov't Response at 15.) In determining whether there is reasonable suspicion under the totality of the circumstances, "the Court must evaluate those circumstances through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training." United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000). (Docket No. 32, Gov't Response at 16.) The Government contends that defendant had lied about his identity to McCarthy on September 21, 2001, coupled with crack being found at the September site and defendants attempts to evade the agents on October 10, 2001, provided reasonable suspicion when he saw the defendant again.
Defendant points out, however, that the agents did nothing to pursue defendant for falsifying his identity (Docket No. 66, Def. Memo. at 6) and had time between September 21 and October 10, 2001, to obtain an arrest warrant, even a John Doe warrant (see id.). The Government outlines its internal investigation of defendant's use of a false identity, including a photograph investigators had of defendant with other known gang members (Docket No. 67, Gov't Memo. at 2-4, 12).
Defendant's lie about his identity and about his criminal history is one factor that a reasonable officer can infer wrong doing, see United States v. Santos, 403 F.3d 1120, 1132-33 (10th Cir. 2005). But this lie occurred a month prior to the officers' second encounter. Defendant was evasive when approached by these officers in October 2001, moving away from them twice before going into the deli. But taking the totality of the circumstances here, Officer McCarthy had sufficient reasonable suspicion from his prior encounter with defendant, information he learned about defendant due to his lying about his identity, and defendant's evasive actions during the October encounter, to justify the stop.
II. Frisk
Since the stop was supported by reasonable suspicion, the next issue is whether there was a constitutional basis then to frisk the defendant during this stop. Under Terry, the pat down search for weapons is to protect the officer and others nearby during the stop and (unlike a search incident to an arrest) is not to preserve potential evidence from destruction, 392 U.S. at 29. This search is limited to attempting to locate dangerous, hidden weapons, id.
McCarthy testified that he believed that defendant was in a gang and gangs were usually armed so McCarthy took the precaution of frisking the defendant (Docket No. 54, Nov. 22 Tr. at 28;see id. at 89-91 (McCarthy had information that "Dip" carried a gun)). On cross-examination, McCarthy testified that "Dip" was reported to be on Urban Street, with a different birth date than defendant or Speed, both claiming residence on Northumberland Street and an April 1981 birth date (Docket No. 54, Nov. 22 Tr. at 55, 119, 117-18, Gov't Ex. K; Docket No. 56, Mar. 7, 2005, Tr. at 11-13). Defendant contends that McCarthy also testified that he did not see a weapon or weapon-like bulge on defendant's person at the time of the October 10, 2001, encounter (Docket No. 66, Def. Memo. at 13).
Or "Irvin" as transcribed in the March 7, 2005, transcript, Docket No. 56, Tr. at 11, 13.
Courts within the Second Circuit have approved of protective action (such as frisking a suspect) "where there is a reasonable suspicion that the subject of the frisk had simply purchased narcotics, where the totality of the circumstances indicated that `a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others in danger.'"United States v. Ramirez, No. 02CR1228, 2003 U.S. Dist. LEXIS 1669, at *19-20 (S.D.N.Y. Feb. 5, 2003) (quoting United States v. Alexander, 907 F.2d 269, 272 (2d Cir. 1990) (quoting in turnTerry, supra, 392 U.S. at 27)). The district court inRamirez upheld a stop and frisk of defendant where he was found with two other men in a known drug area at night; defendant stepped away from the officer and failed to respond to his questions. 2003 U.S. Dist. LEXIS 1669, at *20; see also Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (nervous, evasive behavior as pertinent factor in viewing legality of stop and frisk); United States v. Taylor, No. 01CR576, 2002 U.S. Dist. LEXIS 1898 (S.D.N.Y. Feb. 7, 2002) (frisk upheld where defendant stepped away from officer and failed to respond to questions). The court concluded that the frisk in those circumstances was what a prudent officer would have done. Ramirez, supra, 2003 U.S. Dist. LEXIS 1669, at *20.
While a safety frisk may be appropriate here, McCarthy first detected the lump that turned out to be concealed rock cocaine in touching defendant's arm to move him from the deli to the street. The Government argues that contraband felt during a safety frisk that was in the officer's "plain touch" is subject to seizure,see Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993) (Docket No. 67, Gov't Memo. at 13). But a continuous search after the officer concludes no weapons are present would exceed this basis for a search as a simple stop and frisk. Dickerson, supra, 508 U.S. at 378; United States v. Miles, 247 F.3d 1009, 1013-14 (9th Cir. 2001). Here, the testimony indicates that the pat down to find possible weapons instead immediately detected the contraband. The "touch" detecting this contraband formed probable cause to arrest defendant, see Dickerson, supra, 508 U.S. at 375-76; Miles, supra, 247 F.3d at 1013.
III. Search Incident to Arrest
Defendant then was arrested and searched more thoroughly, revealing bulge detected during the safety frisk to be two packets of crack cocaine. (See Docket No. 54, Tr. at 34-35.) To be constitutional, the officers needed probable cause to arrest defendant. Defendant merely argues that the initial stop lacked probable cause and any subsequent items found are fruit of the poisoned tree (Docket No. 66, Def. Memo. at 14, 11 n. 2). But, as previously stated, there was probable cause here to arrest defendant from Officer McCarthy detecting the bulge during the safety frisk. Therefore, the seizure of these packets, and defendant's subsequent statement, should not be suppressed.
CONCLUSION
Based upon the above, it is recommended that defendant's motion to suppress (Docket No. 31) be denied in its entirety.Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ordered that this Report Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report Recommendation to all parties.
ANY OBJECTIONS to this Report Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report Recommendation in accordance with 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b) and W.D.N.Y. Local Civil Rule 72.3(a). FAILURE TO FILE OBJECTIONS TO THIS REPORT RECOMMENDATION WITHIN THE SPECIFIED TIME OR TO REQUEST AN EXTENSION OF SUCH TIME WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT DISTRICT COURT'S ORDER ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d Cir. 1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).
The District Court on de novo review will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. See Patterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to W.D.N.Y. Local Civil Rule 72.3(a)(3), "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3) may result in the District Court's refusal to consider the objection.
SO ORDERED.