Opinion
No. 01 CR 0576 (LTS)
February 7, 2002
JAMES B. COMEY, UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK, By: Christopher P. Conniff, Esq., New York, NY, Attorney for the United States.
ANTHONY RICCO, ESQ., Attorney at Law, By: Anthony Ricco, Esq, New York, NY, Attorneys for Defendant.
MEMORANDUM OPINION AND ORDER
Defendant Kenny Taylor is charged in an indictment with possession of a firearm in violation of Title 18, United States Code, sections 922(g)(1) and 924(e), after having previously been convicted of a crime punishable by imprisonment for a term exceeding one year. This matter comes before the Court on Mr. Taylor's pre-trial motion to suppress physical evidence (a 9 mm pistol) obtained by police and statements (to the effect that he needed the gun for protection and that he did not wish to return to jail) that he allegedly made after he was arrested on May 28, 2001. Defendant argues that the evidence is inadmissible as the fruits of a seizure that he contends was unlawful because it was made without probable cause in violation of the Fourth Amendment to the United States Constitution. Alternatively, Defendant requests an evidentiary hearing to determine the admissibility of the physical evidence and statements.
In support of the motion, Mr. Taylor's attorney initially submitted a declaration, and Mr. Taylor submitted an Affidavit, both attesting to certain facts in connection with Mr. Taylor's arrest. None of the facts presented in the submissions was inconsistent with those set forth in the Complaint. The Government submitted a brief in opposition to Mr. Taylor's motion, arguing that the motion should be denied without a hearing on the grounds that, inter alia, the underlying, uncontroverted facts were sufficient to show that the officers had reasonable suspicion to justify the brief investigative detention that led to the discovery of the firearm. Defendant did not submit a reply to the Government's opposition.
At a conference held on January 9, 2002, the Court afforded the parties an TAYLOR.WPD Version 02/07/02 2 opportunity to present further argument on the motion. Counsel for Defendant suggested to the Court that Mr. Taylor, by omitting from his affidavit certain facts that were set forth in the Complaint, was indicating that he was disputing those facts. The Court offered Defendant an opportunity to make an additional evidentiary submission setting forth facts sufficient to show the necessity for an evidentiary hearing. The Court received Mr. Taylor's Supplemental Declaration on January 22, 2002. The Government submitted its response on January 28, 2002.
The Complaint sets forth facts pertinent to the pending motion as follows. In the early morning of May 28, 2001, three police officers were on patrol in an unmarked police car in the vicinity of the Cross Bronx Expressway and Monroe Avenue. (Compl., June 1, 2001, at ¶ 2(a).) While on patrol, they were searching for an individual who was wanted for involvement in a shooting. (Id.) The officers had a photograph of the suspect with them. (Id.) Mr. Taylor was spotted walking along Monroe Avenue and the officers noticed that his appearance matched that of the suspect. (Id. at ¶ 2(b).) The officers followed Mr. Taylor in their car. (Id. at ¶ 2(c).) Upon approaching him, one of the officers asked if Mr. Taylor was the suspect for whom they were looking. (Id.) After Mr. Taylor did not respond but took a step away from the officers' car, one of the officers asked him for identification. (Id. at ¶¶ 2(c)-(d).) Mr. Taylor, without responding, reached behind his back with his left hand. (Id. at ¶ 2(d).) One of the officers then exited the car and asked Mr. Taylor if he had any weapons. (Id.) When Mr. Taylor again did not respond, the officer who had exited the car reached around Mr. Taylor's waist and felt a firearm in Mr. Taylor's waistband. (Id.) Mr. Taylor was then placed under arrest. (Id. at ¶ 2(e).)
In his Supplemental Declaration, Mr. Taylor asserts generally that the Complaint is "filled with false statements and lies," and contends specifically that "at no time whatsoever did I reach into my waist band, as stated in the complaint or in any other manner." (Taylor Supp. Decl., Jan. 17, 2002, at ¶ 4.) Mr. Taylor further asserts that he showed two pieces of identification that were rejected by the officers, who became "verbally and physically abusive" towards him, and that he was seized and placed in handcuffs "[w]hen [he] was walking away from" the officers. (Id. at ¶ 5.) These facts had not previously been presented to the Court. The Supplemental Declaration proffers no other specific factual allegations to contradict those set forth in the Complaint. In its response to the supplemental submission, the Government renews its arguments that Defendant has failed to raise any issue of fact warranting an evidentiary hearing and that the law enforcement officers' actions were justified as a so-called "Terry" stop and protective frisk incident thereto.
Because the uncontradicted facts set forth in the Complaint support a finding that the officers had reasonable suspicion when they briefly detained Mr. Taylor and discovered the firearm on his person, the motion to suppress the physical evidence as the fruit of an unlawful seizure is denied. For the same reason, Mr. Taylor is not entitled to suppression on Fourth Amendment grounds of statements he allegedly made after police officers discovered the firearm and arrested him. Furthermore, Defendant is not entitled to an evidentiary hearing on the suppression motion because he has failed to allege facts that, if proven, would require this Court to grant the relief sought.
Suppression of Physical Evidence and Statements
Defendant characterizes the physical encounter leading to the discovery of the firearm as a "seizure" and argues that the officer lacked probable cause, making such seizure unreasonable and therefore prohibited by the Fourth Amendment. The Government does not dispute that there was a seizure, but asserts that it was lawful as a brief investigatory stop, known as a Terry stop (see Terry v. Ohio, 392 U.S. 1 (1968)), which merely requires that the officer have reasonable suspicion to believe that some criminal conduct has occurred. Mr. Taylor contends that the seizure did not constitute a Terry stop because it exceeded the level of intrusiveness permitted by such a stop, in that there was physical contact and the questioning took place in conditions under which Mr. Taylor was not free to go and likely would have been restrained physically if he had refused to comply.
Defendant is correct that the encounter described in the Complaint was a seizure; that is, indeed, what a Terry stop is. The question is whether the seizure was reasonable under the Fourth Amendment. To be reasonable, the initiation of the encounter must have been justified by reasonable suspicion and the encounter must have been no greater in scope than necessary. Under Terry and its progeny,
the 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 (1989). A brief "investigative detention" is permissible where the officer has "`reasonable suspicion' to believe that criminal activity has occurred or is about to occur." United States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995) (citation omitted). The TAYLOR.WPD Version 02/07/02 5 officer must be able to articulate something more than a general suspicion or hunch. Terry, 392 U.S. at 27. Furthermore, "if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion." United States v. Hensley, 469 U.S. 221, 229 (1985); see also United States v. Place, 462 U.S. 696, 702 (1983) (holding that Terry stop is permissible where there is "reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity").
In evaluating the permissibility of a stop as one contemplated by Terry, the Court is to consider "the totality of the circumstances — the whole picture." United States v. Cortez, 449 U.S. 411, 417 (1991). "Reasonable suspicion" is measured objectively, United States v. Glover, 957 F.2d 1004, 1009 (1992), using the perspective of a trained and experienced law enforcement officer, Cortez, 449 U.S. at 418. In evaluating whether an investigative stop is reasonable under the Fourth Amendment, the Court must determine: (1) whether the officer's action was justified at its inception, and (2) whether the action was reasonably related in scope to the circumstances which justified the interference in the first place. United States v. Sharpe, 470 U.S. 675, 682 (1985); Terry, 392 U.S. at 20. The test for reasonable suspicion is lenient and "`not a difficult one to satisfy.'" United States v. Lawes, No. 00 CR. 151, 2000 WL 776908, at *2 (S.D.N.Y. June 15, 2000) (quoting United States v. Oates, 560 F.2d 45, 63 (2d Cir. 1977)).
The facts alleged in the Complaint are sufficient to show that the encounter was a legally permissible brief investigatory detention, within the meaning of Terry and its progeny, in TAYLOR.WPD Version 02/07/02 6 that the officers had reasonable suspicion to justify the stop and the scope of the stop was reasonably related to the circumstances that warranted the interference. The officers were on routine patrol, in an unmarked police car, looking for an individual suspected of a shooting that had recently occurred. They had the suspect's photograph and had concluded that Mr. Taylor resembled the suspect.
Mr. Taylor's Supplemental Declaration contradicts the Complaint's assertion that Mr. Taylor refused to identify himself, and contends that the officers conducted themselves improperly after he had produced identification. None of the factual assertions in the Supplemental Declaration contradicts, however, the central factual assertion supporting reasonable suspicion — that the officers had concluded that Mr. Taylor's appearance matched that of the shooting suspect. Based on the resemblance, they had reasonable suspicion to believe that Mr. Taylor was the shooting suspect for whom they were looking. Mr. Taylor has offered nothing to suggest that it was unreasonable at that point for the officers to believe that he was the suspect. Defendant does not contend that his own appearance is dissimilar to that of the suspect, or that it was unreasonable for the officers to conclude that Mr. Taylor might be the suspect. Cf. Lawes, 2000 WL 776908, at * 2 (considering, but ultimately rejecting, defendant's argument that officers lacked reasonable suspicion to stop him because of physical differences between his appearance and that of homicide suspect in photograph officers had with them); see United States v. Scheets, 188 F.3d 829, 838-39 (7th Cir. 1999) (finding that there was reasonable suspicion to briefly detain defendant where he resembled bank robbery suspect in photograph and matched physical description of the suspect); United States v. Williams, 730 F. Supp. 455, 459 (finding TAYLOR.WPD Version 02/07/02 7 reasonable suspicion to approach and question defendant based on officer's observation that he resembled a murder suspect from a composite drawing). The Court need not look further than the facts that are undisputed, for they provide sufficient grounds to determine that the officers had reasonable suspicion to conduct a Terry stop. Defendant has failed to proffer any factual assertions on the basis of which the Court could find otherwise.
The circumstances, taken as a whole, surrounding the encounter are sufficient to demonstrate that the officers had reasonable suspicion and that the scope of the encounter did not exceed Terry bounds. The officers concluded that Mr. Taylor's appearance matched that of the suspect. They encountered him at a very late hour. The uncontradicted factual assertions in the Complaint are, furthermore, sufficient to demonstrate that the physical contact was a permissible protective frisk. Mr. Taylor does not dispute that he stepped away when questioned. Nor does he refute the assertion that he did not respond when asked by one of the officers if he was carrying a weapon. Mr. Taylor has not denied that he reached his hand around his back, as indicated in the Complaint, but states only that he did not reach into his waistband. The Complaint does not assert that Mr. Taylor reached into his waistband. See United States v. Jarmillo, 25 F.3d 1146, 1151 (2d Cir. 1994) (in a Terry stop, "the officer may `tak[e] steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him,'" and an officer "may take necessary measures to determine whether the person is in fact carrying a weapon "`[w]hen [the] officer is justified in believing that the individual . . . at close range is armed and presently dangerous to the officer or to others,'" (quoting Terry, 392 U.S. at 23, 24)). When the officer perceived a weapon it was TAYLOR.WPD Version 02/07/02 8 permissible for the officer to remove the weapon. Defendant's motion to suppress the evidence as fruit of an illegal encounter is, accordingly, denied.
In light of the Court's conclusion as to the legality of the encounter, there is no need to address the Government's argument that Mr. Taylor has failed to establish that he has a privacy interest in the weapon.
Evidentiary Hearing on Suppression of Evidence
A party seeking to raise a factual issue to be determined at a hearing, with respect to the suppression of evidence in a criminal case, must submit admissible evidence which, if credited, would make out a prima facie case on the issue. See United States v. Belin, No. 99 CR 214, 2000 WL 679138, at *5 (S.D.N.Y. May 24, 2000); United States v. Viscioso, 711 F. Supp. 740, 745 (S.D.N.Y. 1989) (denying hearing where statements made in affidavit did not present disputed factual issues and noting that "[a] defendant does not have a right to a suppression hearing under all circumstances; instead, the defendant must show `that disputed issues of material fact exist before an evidentiary hearing is required,'" quoting United States v. Castellano, 610 F. Supp. 1359, 1439 (S.D.N.Y. 1985)).
Defendant proffers no facts contradictory to those set forth in the Complaint that are relevant to the question of reasonable suspicion. The suggestion of improper behavior on the part of the officers does not, even if proven to be true, negate the existence of reasonable suspicion justifying the initiation of the encounter. Nor does the contention that Mr. Taylor offered identification indicate that the officers lacked reasonable suspicion. There is, therefore, no substantial factual dispute to resolve on the question of the lawfulness of the seizure and anevidentiary hearing is unnecessary. See, generally, United States v. Santiago, — F. Supp.2d ___, No. 00 CR 237, 2001 WL 1338917 (S.D.N.Y. Oct. 31, 2001) (discussing the need for a hearing to resolve a "substantial factual dispute," to determine whether an interrogating agent's comments were intended to induce defendant to reveal information after he indicated his intention to refrain from speaking until accompanied by counsel, and discussing reasons for denying or granting hearings based on factual disputes raised by co-defendants); United States v. King Kong, No. 92 Cr. 531, 1992 WL 316150, at *2 (S.D.N.Y. Oct. 19, 1992) (hearing to determine admissibility of evidence warranted where there was a factual issue concerning whether defendant was given his Miranda warnings in a Chinese dialect he understood).
CONCLUSION
For the reasons discussed, Defendant's motion to suppress evidence and, alternatively, for an evidentiary hearing is hereby denied.
SO ORDERED.