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UNITED STATES v. MAGDA

March 9, 1976

UNITED STATES of America
v.
Vincent Anthony MAGDA, Defendant



The opinion of the court was delivered by: CARTER

ROBERT L. CARTER, District Judge.

 On the afternoon of September 5, 1975, New York City Patrolman Saverio Alesi arrested the defendant, Vincent Anthony Magda, for possession of a marijuana cigarette. At the time of his arrest Magda also had on his person an unloaded 9mm. Browning automatic revolver and a "demand note," the text of which is set out in the margin. *fn1" Handwriting analysis of the note linked Magda to the robbery of the United Mutual Savings Bank, 20 Union Square, New York City, for which he was indicted on September 25, 1975 (75 Cr. 942), *fn2" and apparently pointed to his involvement in bank robberies in Chicago, Washington, Miami and New Orleans. Subsequently, additional evidence was uncovered by the Federal Bureau of Investigation that might provide additional links to defendant's involvement in the New York bank robbery.

 Defendant moves to suppress the demand note, statements made by him after his arrest, and any other fruits of the search in which the note was found. If evidence of the crime was improperly obtained, it cannot be used against the defendant at trial. Weeks v. United States, 232 U.S. 383, 393, 34 S. Ct. 341, 344, 58 L. Ed. 652, 655 (1914). The government concedes that before the demand note was found, Magda had not been suspected of committing any of the crimes with which he is now charged and that if the search was unlawful, all the evidence against Magda is tainted and cannot be used against the defendant. This seems to be true of the evidence in respect of the various other bank robberies as well, but obviously that is beyond the scope of my inquiry. See generally, Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

 A hearing was held on defendant's suppression motion on November 26, 1975. Alesi and the defendant testified. On December 15, 1975, the hearing was reopened at the defendant's request. At the later hearing, the defendant's mother, Mrs. Margaret Magda, two of his sisters, Mrs. Virginia Lees and Mrs. Patricia Dunbar, testified and the police officer was recalled for additional testimony. The hearings produced sharply differing accounts of some details of the arrest. I believe Alesi's version of the events more exactly accords with what took place. However, even accepting the police officer's testimony as the basis for my determination, I am compelled to conclude that the motion to suppress must be granted.

 Background Facts

 On September 5, 1975, Alesi, an eleven-year veteran of the New York City Police Department, was on foot patrol on Eighth Avenue between 42nd and 45th Streets. He described the area as a "narcotics prone location." When Alesi first noticed Magda, the defendant was on the north side of 43rd Street, about fifteen to twenty feet from the northwest corner and approximately thirty to thirty-five feet away from Alesi who was standing on the southwest corner of Eighth Avenue and 43rd Street. Alesi testified that the defendant, who is white, was speaking to a "young," "male black" with whom he exchanged something. Each man gave and received something simultaneously, but Alesi could not see what changed hands. After the exchange, the black man looked up in Alesi's direction, turned around in a "rapid motion" and proceeded to walk westbound down 43rd Street away from Alesi in the direction of Ninth Avenue. Magda then turned toward Alesi, crossed 43rd Street at an angle heading down Eighth Avenue toward 42nd Street and passed the officer. As Magda walked past, Alesi tapped the defendant on the shoulder and asked him to stop. Magda turned to face Alesi and slowed his pace but continued down Eighth Avenue, walking backwards. Alesi walked with him for several steps covering perhaps ten feet before they both stopped.

 Alesi asked the defendant what had transpired between him and the black man. Magda at first said nothing had happened; but when asked again, he replied, "All right. I bought a marijuana cigarette for a dollar," and produced the cigarette from his inside coat pocket. Alesi then placed the defendant under arrest and walked him back up to 43rd Street in a vain attempt to find the other man. Alesi searched the defendant, discovered the gun and the note, and took him to the police station where he was booked and locked up.

 Although Alesi has been on the police force for eleven years, at the time of this incident, he had been on foot patrol in the midtown area for approximately six months. He had observed two street arrests for narcotics by other police officers on that street and he himself had previously made street arrests for narcotics, but not in that area. When asked to describe the extent of his knowledge of narcotics activities in the area, Alesi referred to maps and graphs in the muster room at the Midtown South Precinct, but expressed no additional personal experience. Alesi also explained that McCaffrey Park is a center of much of the drug traffic in the Forty-Third Street area. The park is roughly in the middle of the block between Eighth and Ninth Avenues -- 100 to 125 feet from where the exchange between the defendant and the black man took place.

 When asked by the court what it was about the transaction between Magda and the black man that caused him to stop the defendant, Alesi answered: "At the location. And when the male black exchanged something and he seen me, he turned in a rapid motion and proceeded westbound . . . on 43rd Street." (Transcript at 41.) Apparently Alesi had never seen the black man or the defendant before and possessed no independent knowledge that either might be involved in drug trafficking.

 The government offered Alesi's notes, written some time shortly after the arrest was made. These notes describe the incident in the same way Alesi spoke of it on the stand, although in more conclusory language: "observed one male white making buy from one male black at 43rd Street and Eighth Avenue, stopped male white, admitted he bought one marijuana cigarette for a dollar." *fn3"

 Proceedings in State Court

 On November 14, 1975, a suppression hearing was held in Criminal Court of the City of New York before Judge Alfred H. Kleiman. The account of the arrest that Alesi gave in that hearing was substantially the same as his testimony here. The only possibly significant differences are that in state court Alesi did not mention touching Magda's arm as the defendant walked past him, and the defendant did not testify.

 After oral argument and a review of two New York State cases (People v. Rosemond, 26 N.Y.2d 101, 308 N.Y.S.2d 836, 257 N.E.2d 23 (1970), and People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872 (1975)), Judge Kleiman ruled from the bench that the Cantor case requires that before a patrolman can stop a person in a public place, the officer must have a reasonable suspicion not just "any suspicion, no matter what the basis of that suspicion may be" that criminal activity has happened, is happening, or is about to happen. (State Transcript at 33.) Judge Kleiman concluded that:

 
"To deny the motion of the Defendant in this particular case would mean the mere denomination of a particular area as a high narcotics area . . . would mean that an Officer, upon the mere exchanging of hands, can stop anyone walking down 43rd Street and Eighth Avenue. I do not believe that ...

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