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UNITED STATES v. BARNES

November 7, 1977

UNITED STATES OF AMERICA
v.
LEROY BARNES, a/k/a "Nicky," and GUY FISHER, a/k/a "Radio," Defendants


Henry F. Werker, D.J.


The opinion of the court was delivered by: WERKER

HENRY F. WERKER, D.J.

Defendants Leroy Barnes and Guy Fisher have each moved to suppress evidence seized from them following searches undertaken without warrants by members of the New York City Police Department. Barnes seeks to suppress more than $130,000 seized from the trunk of his automobile when he was arrested on December 17, 1974; Fisher seeks to suppress a driver's license and approximately $103,000 seized from the trunk of his automobile when he was arrested on September 30, 1974. Both defendants contend that the seizures, and the events leading up to them, cannot be justified under the Fourth Amendment to the United States Constitution.

 The admissibility of the evidence seized from the defendants has previously been litigated in suppression hearings held prior to the trial of each defendant on unrelated state court charges. *fn1" The Honorable Joseph P. Sullivan, Justice of the New York State Supreme Court, denied Barnes' motion to suppress on March 25, 1975 after hearing four days of testimony from witnesses for the People and Barnes and extensive argument by counsel; and the Honorable Leon Polsky, Justice of the Supreme Court of the State of New York, denied Fisher's suppression motion on January 26, 1976 after a two-day hearing. Both defendants were represented at the state court suppression hearings by David Breitbart, Esq., who is also counsel for Barnes in this proceeding. Another member of Mr. Breitbart's firm, Paul Goldberger, Esq., presently represents Fisher.

 I

 Although the government has the initial burden of establishing the validity of the warrantless searches and seizures challenged by the defendants, see United States v. Jeffers, 342 U.S. 48, 51, 96 L. Ed. 59, 72 S. Ct. 93 (1951); 3 C. Wright, Federal Practice & Procedure ยง 675, at 127 (1969), it can make a prima facie showing by placing copies of the state court hearing record before this court. *fn2" These records are technically hearsay, of course, but for pretrial purposes the court is "not bound by the rules of evidence" concerning matters other than privileges, Fed. R. Evid. 104(a), and I am therefore "empowered to hear any relevant evidence, such as affidavits or other reliable hearsay." Advisory Comm. Note on Proposed Rule 104(a).

 I find that the testimony in state court, having been given under oath and subject to cross-examination, more than meets the requisite indicia of reliability. Moreover, given the inadequacy of the defendants' offer of proof with respect to the searches, I hold that the state court transcripts conclusively establish the government's right to introduce at trial evidence obtained through the contested searches and seizures. *fn3" My findings of fact and conclusions of law with respect to each defendant follows:

 II. BARNES

 a. Factual Findings: The 48th Precinct in the Bronx is situated in a high crime area (B237). *fn4" At approximately 1:00 a.m. on December 17, 1974, police officers Paul Von Werne and Daniel Duffy were on motor patrol of Sector A of that precinct when they noticed three unattended late-model Mercedes Benzes parked in a row on 175th Street near Southern Boulevard (B85-88). As the officers drove by, Von Werne noticed that the two rear cars had New Jersey license plates, but could not see where the first car (which had no front license plate) was registered. (B87, 89). Since the cars were actually parked in Sector B of the precinct, which is the adjoining patrol area, Von Werne and Duffy drove around the block and placed a 1:02 a.m. radio call for a "1085" (a rendezvous) with police officers William Dunphy and William Ohrnberger, who were assigned to the Sector B patrol car (B89, 91, 160, 311). The four officers met at an agreed location and decided to run license plate checks, known as "1015's" on the three vehicles (B92, 312). Accordingly, the Sector A patrol car followed the Sector B patrol car back to the intersection of 175th Street and Southern Boulevard. As the two cars drove along 175th Street, the Sector B car slowed almost to a standstill to enable Dunphy to note the license plate numbers of the parked vehicles (B92, 365). The patrol cars then made a left turn and stopped about two blocks from 175th Street (B93, 367). At 1:10 a.m., Dunphy radioed license plate information on the two rear automobiles to the 7th Division dispatcher (B201-02, 367). He did not check on the first automobile since he, too, had been unable to see the license plate on the rear of that vehicle (B365-66). At 1:13 a.m., the dispatcher sent a "1017" message to Dunphy, indicating that neither of the rear two automobiles had been reported stolen (B370). Nevertheless, before returning to their patrol duties, the officers agreed that they would keep an eye on the parked vehicles (B94, 370).

 Ten or fifteen minutes later, as the Sector A patrol car was travelling along Southern Boulevard, Von Werne saw three men walking in the direction of the parked automobiles (B95). The Sector A car circled around to a location "one short block from where the cars were located," and from that position Von Werne was able to see that the first of the Mercedes Benzes had started to move (B96). As it left the curb, the Sector A patrol car followed (B97). The Mercedes stopped at an intersection for a red light and remained there even after the signal had turned green (B97). As the traffic signal was again turning red, the Mercedes moved into the intersection, pausing for a moment before making a right turn onto Southern Boulevard. After travelling for about one car length, the Mercedes made a U-turn and proceeded in the opposite direction on Southern Boulevard (B97-98). This illegal maneuver caused it to cross a double yellow line (B99). *fn5"

 Since oncoming traffic blocked the path of the Sector A patrol car, Von Werne and Duffy did not catch up to the Mercedes until the intersection of Southern Boulevard and East Tremont Avenue, where the Mercedes turned left with the Sector A patrol car following immediately behind (B99). Dunphy, who happened to be standing near that intersection (B99-100, 313-14, 395), returned to the Sector B patrol car (B397), made a U-turn on East Tremont Avenue and joined the procession (B314). In the meantime, when the Mercedes stopped for a red light at the intersection of Marmion and East Tremont Avenues, the Sector A patrol car pulled alongside it and Von Werne told the driver to pull his car over to the curb after the light turned green (B101). Von Werne noticed at that time that the car had three male occupants -- the driver and two passengers -- and that all of them were Black. (B101-02, 217). When the light turned green, the driver did not move his car; indeed, a second instruction was required before the driver complied (B102).

 Von Werne and Duffy stopped directly behind the Mercedes and got out of their car. By this time, the driver of the Mercedes had already left his own vehicle, and he met the officers midway (B103, 219). Von Werne asked the driver for his license and registration, and the driver -- later identified as the defendant Leroy Barnes -- produced a New York driver's license and a Pennsylvania registration, explaining that the Mercedes was registered in Pennsylvania because it was leased (B103). At approximately this time, Dunphy and Ohrnberger arrived on the scene (B104-05, 314-15, 403).

 Von Werne took Barnes' license and registration and returned to the Sector A patrol car. At 1:28 a.m., he radioed a "1015 on the plate and a . . . check of Barnes' driver's license to see if there were any suspensions" (B105, 162, 239). At 1:30 a.m., the 7th Division dispatcher sent Von Werne a "1017 Sprint awaiting N.C.I.C." message (B240-41). This indicated that the Mercedes had not been reported stolen in New York City, but did not establish that it had not been stolen elsewhere (B373-74). Von Werne therefore remained in his patrol car to await the dispatcher's final clearance of the driver's license and vehicle registration (B241). Duffy was also in the patrol car; Barnes and Dunphy were standing nearby (B105, 246, 403-04). While Von Werne was awaiting a further dispatch, Dunphy walked around the Mercedes. He paused near the rear of the Mercedes and saw that the two passengers still seated in it were male Blacks. Although that was about all he could see inside the car (B412-416), he did notice that Barnes seemed to be "a little nervous" at that time (B444-45).

 At 1:31 a.m., a message came over the police radio. Both Von Werne and Dunphy heard part of this "radio run" which concerned a robbery at 725 Garden Street, some eight blocks from the scene (B106, 428). The part of the message that they heard was as follows:

 
Okay all units in the 44; the 46 sarge is looking -- the 46 sarge is looking for, from 725 Garden Street, they want three male blacks. They robbed a police officer. One is wearing a green Army jacket, armed with police ...

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