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March 21, 1990


The opinion of the court was delivered by: Kram, District Judge.


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.

Stop and Arrest

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.

O'Flaherty further testified that Culmer was observed running until he met Jackson in the street, that they spoke briefly, and that they both then got into the back seat of a Lincoln Continental Town Car with out-of-state license plates. The officers did not stop defendants at this time, but waited as Jackson called out the window to someone. Shortly thereafter, Ernest West entered the driver's side and began driving the car toward Riverside Drive, then north on Riverside. The parties disagree as to the time that expired between when the defendants entered the car and when West appeared and began driving. O'Flaherty stated that only a couple of minutes passed, not the ten to fifteen minutes claimed by defendants.

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 ...

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