The opinion of the court was delivered by: Kram, District Judge.
MEMORANDUM OPINION AND ORDER
In this criminal action, defendants James Culmer and Frank
Jackson have been charged with possession of cocaine and
cocaine base with intent to distribute in violation of
21 U.S.C. § 841(a)(1). Defendant Culmer is additionally charged
with possession of heroin with intent to distribute.
21 U.S.C. § 841(a)(1). In an opinion dated October 30, 1989, this Court
denied certain defense motions and ordered a hearing on whether
the stop and subsequent arrest complied with the Fourth
Amendment and whether post-arrest statements must be
suppressed. This Court held a hearing over three days, December
29, 1989, January 10, 1990 and January 12, 1990, and permitted
the parties to submit post-hearing memoranda.*fn1
The Court heard testimony concerning the arrest and
processing from William O'Flaherty, a New York City Police
Officer, and Ernest West, a construction worker and the
part-time cab driver who drove these defendants and was
initially arrested himself. The Court also heard testimony from
Ms. Jean Culmer, the mother of defendant James Culmer, who
testified that her other son, Michael Singleton, was
incarcerated from February through May 30, 1989, the date at
which O'Flaherty and the other officers arrested Culmer and
Jackson while allegedly looking for Michael Singleton.*fn2 In
their subsequent briefs, defendants attack the credibility of
William O'Flaherty and bolster that of Ernest West by arguing
that O'Flaherty had a greater incentive to lie. Defendants
further contend that West's testimony should not be credited
because he testified to additional details at the hearing that
were not included in earlier written documents, including the
complaint. Defendants also argue that West's testimony is more
logical than that given by O'Flaherty. The Court first
considers
the evidence surrounding the stop and arrest, and then
considers the circumstances of the post-arrest statements.
The Court first considers whether there was a reasonable
suspicion at the time the defendants entered the Lincoln, and
whether the officers could have stopped them at that time for
questioning. The Court then considers whether the officers
could have had a reasonable suspicion of criminal conduct at
the time they stopped defendants. Finally, the Court considers
the circumstances of the arrest, and whether probable cause was
present at the time defendants were arrested. A brief stop is
permissible, even absent probable cause, "when an officer has
reasonable, articulable suspicion that the person has been, is,
or is about to be engaged in criminal activity." United States
v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 680, 83 L.Ed.2d
604 (1985). In its previous opinion, this Court ordered that
the hearing encompass the factual issues surrounding reasonable
suspicion for the stop and probable cause for the arrest. These
issues included whether the officers had some reasonable
suspicion of criminal activity at the time of the stop in light
of the fact that they did not stop the defendants after
observing Culmer run across the street cradling a package and
while the defendants sat in the car waiting for West. The Court
also ordered that the parties put on testimony to determine if
the arrest actually preceded the discovery of the drugs, or
whether as the government contended, the defendants were not
handcuffed and arrested until after the drugs were found
pursuant to a legal frisk of the brown paper bag. Regarding the
stop, defendants contend that the requisite reasonable
suspicion was absent even if the Court credits the testimony of
Detective O'Flaherty.
The Court observed the witnesses presented in the hearing and
found, contrary to defendants' contention regarding motive to
falsify, that officer William O'Flaherty was an excellent
witness who testified knowledgeably and credibly. O'Flaherty
testified that on May 30 he and other officers were looking in
the vicinity of West 145th Street and Broadway for two
fugitives from a prior case, one of whom was thought to be
James Culmer's brother, Michael Singleton. O'Flaherty, an
experienced narcotics officer, testified that he had conducted
ten to twelve narcotics investigations in this area. Transcript
of January 10, 1990, at 28. As the officers searched this area,
Detective Joseph recognized James Culmer who was running up the
east side of Broadway in the direction of West 145th Street.
Culmer ran with a package that was cradled under his arm and
covered by his jacket.
The officers apparently knew Culmer. Detective Joseph
immediately identified him as the brother of Michael Singleton,
one of the fugitives sought at that time by the team of
officers. According to O'Flaherty, Culmer also was recognized
by Joseph because Culmer had been a defendant in that prior
case involving his brother in which drugs and two handguns were
recovered. In that prior case, Detective Joseph was sent into
an apartment to make a "pre-warrant buy" where he met Michael
Singleton and James Culmer. Culmer "roughed up" Joseph during
the course of making the buy. As Joseph left the building
accompanied by Singleton, Joseph first noticed that Singleton
had a gun. Joseph then attempted to apprehend Singleton, but
was only able to recover the gun from Singleton as he fled. The
officers then executed their search warrant in the prior case
and arrested Culmer, while a third individual known only as
"BJ" jumped from the apartment window and escaped. Thus,
O'Flaherty explained that he and the four other officers were
looking for "BJ" and Michael Singleton at the time they first
observed Culmer's suspicious conduct.
The following circumstances might reasonably suggest to a
seasoned narcotics officer some criminal activity at the point
defendants entered the Lincoln: (1) the officers' knowledge
that the area had a relatively high amount of drug trafficking;
(2) the officers' reasonable belief that they might find
Singleton in this neighborhood because they believed that he
resided with his mother who lived there; (3) knowledge of
Culmer's relationship to and prior involvement with a suspected
fugitive in a prior case involving drugs and two handguns; (4)
the observation of Culmer dashing toward a parked Lincoln while
apparently concealing a package cradled under his arm and
underneath his jacket, (5) the apparent involvement and
concerted activity of another individual, later identified as
Jackson, in Culmer's endeavors, (6) and their entering the back
seat of a Lincoln with out-of-state plates. The totality of
these circumstances could reasonably suggest that an individual
— who they reasonably thought had been involved in prior drug
trafficking in which an officer was assaulted and drugs and
firearms were recovered — was now actively engaged in
suspicious, concerted activity with two others. Even though the
defendants were not stopped at this time, additional
observations by officer O'Flaherty further support a finding of
reasonable suspicion at the time Culmer and Jackson were
stopped.
The officers followed the car west and then north to
Riverside Drive. O'Flaherty testified that the Lincoln had made
an illegal right turn through a red light and was travelling at
an excessive rate of speed. O'Flaherty further stated that as
he followed them he saw both defendants in the back seat of the
car, and that both heads turned to look out the back window at
him. O'Flaherty could specifically make out Culmer's face as
Culmer looked to see who might be following the Lincoln. Upon
noticing that Culmer and Jackson apparently had taken an
interest in whether they were being followed, O'Flaherty
identified himself as a police officer over his loudspeaker and
ordered the Lincoln to pull over.
The Supreme Court has stated that the reasonableness of stops
or seizures that are less intrusive than a traditional arrest,
as in the case of the initial stop here, depends "on a balance
between the public interest and the individual's right to
personal security free from arbitrary interference by law
officers." Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637,
2640, 61 L.Ed.2d 357 (1979) (quoting Pennsylvania v. Mimms,
434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977)).
Balancing these policies, the Court has upheld limited stops of
cars for the purpose of questioning, even absent probable
cause, where the police at least have an
articulable and reasonable suspicion that a
motorist is unlicensed or that an automobile is
not registered, or that either the vehicle or an
occupant is otherwise subject to seizure for
violation of law. . . .
Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59
L.Ed.2d 660 (1979). In Brown, the Court held that the officers
lacked a reasonable, articulable suspicion of criminal activity
where the defendant was unknown to the officers, who merely saw
him walk away from another individual in a public alley in a
narcotics-ridden area. The officers in that case could not
identify any suspicious activity that might suggest that Brown
was involved in criminal activity. Brown was searched and
nothing incriminating was found, but he was arrested,
prosecuted and convicted under a statute that made it an
offense to refuse to answer an officer's questions after a
legal stop. The Court held that the stop was not legal, as the
officers lacked a reasonable and articulable basis for their
suspicion. In contrast, O'Flaherty has articulated a basis for
the officers' reasonable suspicion that Culmer and Jackson may
have violated the law. O'Flaherty's
observation of Culmer and ...