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June 13, 1984

JAMES R. MILLIO, Defendant.

The opinion of the court was delivered by: CURTIN

The defendant in this case is charged with unlawful possession of a firearm in violation of 18 U.S.C. App. ยง 1202 (a) (1). He now moves to suppress the Browning 9 mm. automatic pistol which was seized from a car he was driving on February 2, 1984. A suppression hearing has been held, and the court heard final arguments of counsel on May 9, 1984. The following are the court's findings of fact and conclusions of law.

There is one aspect to this motion which makes this case an unusual one. The government and the defendant have entered into a stipulation concerning the circumstances surrounding the seizure of the weapon.

 [The government and the defendant] stipulate and agree that the search that is the subject of this hearing was a pretext search. That is to say, the police officers lacked probable cause to search, either with a warrant or without a warrant. Thus surveillances were instituted to determine if the Defendant could objectively be stopped for a traffic violation.

 [Stipulation dated March2, 1984.] This stipulation, together with the hearing testimony, clearly indicates that the government's aim was to develop information which would provide a sufficient basis for stopping the defendant's car and then recovering a weapon which was suspected to have been in his possession.

 At approximately 11:45 a.m. on February 2, 1984, F.B.I. Special Agent Glen C. Reukauf went into the Royal Pheasant Restaurant in Buffalo, New York, accompanied by Special Agent Mary Lord. The two agents were conducting a surveillance of James Millio, because they suspected that he was in possession of a weapon. Millio was seen at the bar area of the restaurant about 25 feet from the table where Agents Reukauf and Lord took their places. Reukauf saw Millio standing at the bar with one other person. On the bar in front of Millio was partially filled glass which contained a colorless beverage which Reukauf believed was either gin or vodka. Approximately ten minutes after Reukauf arrived, Millio left the bar for about ten minutes. Reukauf did not recall whether he saw Millio actually consume any of the liquid that was in his glass before leaving the bar on this occasion. [Tr. at 75-80.]

 Agent Reukauf was not able to observe Millio during his short absence. Instead, Reukauf called the State Police and said that he spotted Millio in a bar and that he was drinking. He also informed the police that Millio's car was parked outside. Reukauf had seen the car before entering the Royal Pheasant. [Tr. at 83.]

 Agent Reukauf returned to his table, and Millio eventually returned to his place at the bar. Reukauf at one point observed a person working behind the bar pour a drink for Millio from what appeared to be a bottle containing gin or vodka. [Tr. at 80.] Millio was in Agent Reukauf's view almost continuously until Millio left at approximately 12:15 p.m. During this time, Reukauf saw Millio actually drinking and saw one round of drinks being ordered. [Tr. at 79.]

 Agent Reukauf called the State Police for a second time as Millio left the restaurant. Reukauf then reported that Millio had been in the restaurant for two hours, that he had been drinking, and that he was now leaving. [Tr. at 85.]

 At about 12 p.m., Trooper Thomas Paluch of the State Police was patrolling in the Boston, New York area, several miles from Buffalo, when he received a radio message ordering him to call the Boston station. When he called, he was ordered to meet with Investigators Furman and Bigelow at the State Police Barracks in Cheektowaga, New York. By the time Paluch arrived, Furman and Bigelow had left. Trooper Paul Hennessey was there to inform Paluch that he and Paluch were to drive into Buffalo to meet Furman and Bigelow. He also told Paluch that their assignment was to stop a certain vehicle whose driver was possibly armed and had possibly been drinking. The troopers drove into Buffalo and parked about a half-mile from the Royal Pheasant [Tr. at 7-8.]

 Troopers Paluch and Hennessey were soon notified by Furman and Bigelow that Millio had entered his small red automobile. The two troopers spotted the car and followed it. They lost contact with the car for ten minutes before relocating it and then pursued it down Richmond Avenue. There were four cars between their marked State Police vehicle and Millio's car.Paluch estimated that Millio was driving at a speed of 20 miles per hour. Paluch also noted that Millio made "three sharp turning motions within his lane of traffic." [Tr. at 14.] The low speed at which Millio was operating his vehicle and the weaving, together with the information that he had been drinking, led Troopers Paluch and Hennessey to suspect that Millio might be intoxicated. The troopers caught up to Millio's car and turned on the roof lights of their police cruiser. At that point, they noticed that there was a crack in the windshield of Millio's car [Tr. at 14, 52.] They signaled Millio to pull over. Millio complied.

 Trooper Paluch approached the driver's side of Millio's car and asked Millio for his driver's license and registration. Millio could not find either of these two items, but he did produce the record of convictions stub which is normally attached to a New York State driver's license.

 Paluch asked Millio to get out of his car. He noted that Millio's eyes were bloodshot and that his breath smelled of alcohol. Millio, Paluch, and Hennessey then walked to a point behind Millio's car, where Millio was given a sobriety test. Approximately 15 minutes elapsed from the time Millio was stopped until the time he completed the tests. The test was favorable to Millio. The officers concluded that the result did not require any action on their part. [Tr. at 17, 34, 57.]

 At some point, Trooper Hennessey opened the passenger-side door to Millio's car in order to search the glove box for Millio's registration.Trooper Hennessey testified that he was looking only for the registration and not for a gun. However, he admitted that he had been told Millio might be carrying a gun. [Tr. at 58-59.]

 After passing the sobriety test, Millio still could not produce a registration or driver's license. Trooper Hennessey then went to the police cruiser and radioed for a data check on Millio's vehicle and license. Millio was found to have a valid license, but there was a "scofflaw" against the car registration. *fn1" A scofflaw ...

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