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UNITED STATES v. SCOPO

February 19, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
RALPH SCOPO, JR., Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Defendant Ralph Scopo was indicted by a Grand Jury in the Eastern District of New York for a violation of 18 U.S.C. § 922(k) which makes it a crime to "knowingly and willfully possess a handgun, which has had the manufacturer's serial number removed, obliterated and altered and has, at some time, been shipped and transported in interstate commerce." Now before this court is defendant's motion to suppress physical and statement evidence obtained from him on the night of January 17, 1992. More specifically, defendant contends that the New York City Police detectives who stopped and searched his car -- purportedly because he committed a minor traffic infraction -- violated his fourth amendment right to be free from unreasonable searches and seizures. Defendant therefore claims that the handgun the detectives discovered in "plain view" was the fruit of an illegal, pretextual search and must be suppressed. *fn1"

 On July 2, 1992, this court conducted a suppression hearing on defendant's motion. At the hearing, the government presented the testimony of three witnesses: FBI Special Agent R. Lindley DeVecchio, who was not present on the evening of January 17, 1992 and testified only as a specialist on activities of the Colombo Organized Crime Family; and New York City Police Detectives Matthew Higgins and Benjamin Gozun, both of whom were directly involved in defendant's arrest. The facts recounted below rely on the testimony elicited from these witnesses. Following the hearing, defendant and the government submitted briefs addressing the appropriate test for this court to apply in evaluating a "pretextual" search. While both parties agree that an "objective" test is appropriate, they disagree on the precise contours of that test. For the reasons provided below, this court adopts the standard announced and applied by the Sixth, Tenth and Eleventh Circuits and accordingly grants defendant's motion to suppress.

 FACTS

 Before detailing the specific events of January 17, 1992, it is helpful to examine the context in which this weapon seizure took place. In November of 1991, a "shooting war" broke out between feuding factions of the Colombo Organized Crime Family; on that date, loyalists to Victor Orena, acting boss of the Colombo Family, attempted to murder Greg Scarpa, a loyalist to incarcerated boss Carmine Persico. Tr. at 6-7. *fn2" Prior to the date of Scopo's arrest, six known murders and at least a dozen attempted murders took place in connection with this shooting war. Tr. at 7. "Hit teams" made up of "shooters" would travel "caravan" style to carry out these violent acts. Tr. at 6. The Federal Bureau of Investigation and the New York City Police Department together formed a Colombo Strike Force to respond to this "war," and more specifically, to determine "who the shooters were, discover the safe houses, to try to get the guns off the street, to deter them as best we can." Tr. at 8. In the words of Detective Higgins, the Strike Force was "doing active, aggressive law enforcement as well as surveillance." Tr. at 27, 43-44, 57.

 On January 17, 1992, several New York City police detectives assigned to the Strike Force, including Detectives Higgins and Gozun, were conducting covert surveillance of the Mill Basin Social Club. Tr. at 27, 45, 69-70. That club, located at 6334 Avenue N, in Brooklyn, New York, is a known meeting place for members of the Orena faction of the Colombo Family. Tr. at 10. *fn3" At approximately 8:30 p.m., Detective Higgins observed two unoccupied cars, a 1992 Cadillac and a 1987 Chevrolet Blazer, parked in front of the club. Tr. at 28-29. Shortly thereafter, the detectives saw four men exit the club, two of whom were identified as Joseph Scopo, defendant's brother and the underboss of the Colombo family, and Salvatore Micciotta, a "capo" in the family. Tr. at 28. The men entered four cars, including the above-mentioned Cadillac and Blazer, and drove away in what appeared to the Detectives to be "caravan" style. Tr. at 28-29.

 Detective Higgins and his team followed the cars to 1378 East 72nd Street in Brooklyn, the residence of Joseph Scopo. Tr. at 29, 55. After temporarily losing sight of all four cars, the detectives then located the 1992 Cadillac and 1987 Blazer double parked on the wrong side of the street in front of the residence of Salvatore Micciotta. Tr. at 30, 56-57. Neither of the vehicles received a traffic summons at this time, although the detectives had summonses in their cars and the vehicles were parked in violation of New York City traffic regulations. Tr. at 30, 44-45, 58-59. The detectives saw two men enter and soon exit the Micciotta residence; one of these men was observed carrying a rifle case, and the officer who made this observation relayed the information to the entire team. Tr. at 30-31. The man carrying the rifle, later identified as Anthony Mesi, entered the 1987 Blazer, and the second man, defendant Scopo, entered the 1992 Cadillac. Tr. at 31-32.

 Driving away again in what the detectives identified as "caravan" style, the two cars proceeded to Flatlands Avenue in Brooklyn. Tr. at 33, 94. Detective Higgins's team of four or five unmarked automobiles, containing nine detectives, followed. Tr. at 31-32, 45-46. At approximately 9:00 p.m. the detectives allegedly observed the drivers of both cars fail to signal when changing lanes on two occasions. Tr. at 32-33, 63-64. There were no other vehicles on the street, and the two cars were driving within the speed limit. Tr. at 64, 69. When the vehicles eventually stopped at a red light at the corner of Fountain Avenue and Stanley Street, the officers "boxed" the cars in by positioning the police cars "in front, to the side and the rear." Tr. at 34, 73.

 Detectives Higgins and Maggiore exited their vehicle and approached Scopo's Cadillac on the driver's side; Detective Gozun approached the vehicle from the passenger's side. Tr. at 34, 75, 77. Detectives Higgins and Gozun had their guns in their hands; Detective Maggiore also may have had his gun drawn. Tr. 77-78, 97, 105, 112. As Higgins approached defendant's car, he observed Scopo throw an object -- later identified as a cellular phone -- into the back seat of the car. Tr. at 35, 38, 80-82. Detective Maggiore removed Scopo from the driver's seat, and Detective Higgins conducted a frisk for weapons. Tr. at 35. In the meantime, Detective Gozun looked in the car and observed in "plain view" the butt of a handgun protruding from an opaque pouch behind the passenger seat. Tr. at 82-83, 98. Upon recovering the gun, Detective Gozun yelled to the other detectives "I got one . . . I got a gun." Tr. at 36, 98, 105-06. Noting that the gun was a fully loaded .38 caliber pistol with the manufacturer's serial numbers obliterated, Tr. at 98, Detective Gozun handcuffed Scopo and formally placed him under arrest. This stop occurred at a distance of approximately two miles from the location where the drivers failed to signal. Tr. at 114. *fn4"

 The police officers transported Scopo to the 75th precinct where he was issued a traffic summons by Detective Higgins for violating New York Vehicle and Traffic Law § 1163(d). Tr. at 32-33, 37, 88-89, 91, & Exh. 2. After being read his Miranda rights, Scopo allegedly said "Fuck those A-B-C men, they promised my father ten and they gave him one hundred and fifteen." Tr. at 37, 88. Like Scopo, Mesi also was taken to the precinct and issued a traffic ticket. Tr. at 95. The Kings County District Attorney's office later discovered that the hunting rifle was legitimately in Mesi's possession and declined to prosecute him on gun charges. Tr. at 86. Scopo, however, still faces gun possession charges in this court.

 DISCUSSION

 Defendant Scopo moves to suppress both the gun and the statement he uttered at the 75th precinct. Arguing that the New York City detectives issued the traffic summons as a pretext to enable them to search his car for weapons, Scopo urges this court to suppress the "fruits" of this unreasonable and therefore unconstitutional arrest. See Wong Sun v. United States, 371 U.S. 471, 485-87, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). *fn5" In response, the government contends that the detectives had probable cause to arrest Scopo for violating the traffic law; alternatively, the government argues that the detectives' reasonable suspicion that criminal activity was afoot justified their "investigative stop." See Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). This court will address the reasonable suspicion argument first before discussing the heart of the matter at issue: the appropriate test for pretextual searches in this circuit. *fn6"

 As an initial matter, Terry authorizes police officers to make an investigative stop of an individual when the officers are aware of "specific and articulable facts" giving rise to a reasonable suspicion that the person is or has been engaged in illegal activity. Terry, 392 U.S. at 21. The government argues that detectives in this case observed members of the Orena faction of the Colombo Family leave a known Colombo hangout, proceed in "caravan" style to homes of the members, and put a rifle in one of the cars. According to the government, these observations, coupled with the detectives' knowledge of the ongoing war between the Orena and Persico factions of the Colombo Family, gave them "reasonable suspicion which warranted the investigative stop" of Scopo's automobile. (Government's Post-Hearing Memorandum of Law at 8) However, according to Detective Higgins's suppression hearing testimony, neither he nor his colleagues, at the time of the "stop," had information that defendant Scopo was committing a crime. Tr. at 50, 60. In fact, "outside of the traffic infraction," the officers had no "evidence of criminality concerning the Scopo vehicle." Tr. at 75. In light of this testimony, it appears that the officers who "stopped" Scopo's car were not aware of "specific and articulable facts" giving rise to a "reasonable suspicion" that Scopo was or had been engaged in illegal activity.

 Furthermore, even if this court were to conclude that the officers possessed a sufficient factual basis for an investigative stop, "'if an investigative stop based on reasonable suspicion continues too long or becomes unreasonably intrusive, it . . . ripens into a de facto arrest that must be based on probable cause.'" United States v. Babwah, 972 F.2d 30, 33 (2d Cir. 1992) (quoting United States v. Glover, 957 F.2d 1004, 1011 (2d Cir. 1992)) (emphasis added); see also United States v. Streifel, 665 F.2d 414, 422 (2d Cir. 1981) (holding that stop must be reasonable both in its intrusiveness and duration). Review of the testimony from the suppression hearing compels this court to characterize the detectives' behavior on the evening of January 17, 1992 as an arrest and not merely as an investigative stop.

 The Supreme Court has acknowledged that a "traffic stop" of a vehicle by a policeman is a "seizure" within the meaning of the Fourth Amendment. Berkemer v. McCarty, 468 U.S. 420, 436-37, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984); see also Delaware v. Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979) ("stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of [the Fourth] Amendment, even though the purpose of the stop is limited and the resulting detention quite brief."). Berkemer posed the question of whether police officers who detained and interrogated at roadside a motorist who had committed a minor traffic violation were obliged to give Miranda warnings. Id. at 435. Holding that this type of detention did not constitute "custodial interrogation," the Court provided an explanation that both contextualizes Terry stops and sheds light on the nature of Scopo's detention:

 
Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced to "speak where he would not otherwise do so freely," Miranda v. Arizona, 384 U.S. 436, 467, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. . . . Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. . . . In both of these respects, the usual traffic stop is more analogous to a so-called "Terry stop," see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), than to a formal arrest. Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose "observations lead him reasonably to suspect" that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to "investigate the circumstances that provoke suspicion." United States v. Brignoni-Ponce, 422 U.S. 873, 881, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975). "The stop and inquiry must be 'reasonably related in scope to the justification for their initiation.'" Ibid. (quoting Terry v. Ohio, supra, at 29.) Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestions in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not "in custody" for the purposes of Miranda.

 Id. at 437-40 (footnotes omitted). This quotation is instinct with the language of reasonableness. In contrast, as Scopo argues, the "stop" to which he was subjected was anything but "ordinary," "usual," or "noncoercive": nine police detectives used their four or five cars to surround and box in his automobile on all sides; at least three detectives converged upon defendant with their guns drawn; Detective Maggiore "hollered" at Scopo and removed him from his Cadillac at gunpoint; Detective Higgins frisked him. Clearly, Scopo could not reasonably have believed that he was free to leave. On these facts, this court finds that the detectives clearly subjected Scopo to a full-blown arrest.

 Second Circuit precedent supports this finding. For example, in United States v. Marin, 669 F.2d 73 (2d Cir. 1982), the court of appeals faced the question of whether it should suppress narcotics as the fruit of an illegal search. Judge Kearse, writing for the Marin court, noted that "probable cause is necessary when police restrain an individual in a manner that, though not technically an arrest, is nonetheless so intrusive as to be 'tantamount' to an arrest. . . . The reasonableness of a particular stop depends in turn on the extent of the intrusion on the rights of the individual, and the reason for the restraint." Id. at 81. Based on the following facts, the Marin court found that the officers' actions constituted an arrest:

 
In cases involving stops of cars, we have considered the number of police officers and cars used to effect the stop; whether the police blocked the car in motion or otherwise completely impeded its movement, or whether they merely pulled up near it; and whether the police officers had their guns drawn and in view. See United States v. Ceballos, 654 F.2d 177, 183 n.9 (2d Cir. 1981); United States v. Jackson, 652 F.2d 244, 249-50 (2d Cir. 1981); United States v. Vasquez, 638 F.2d 507, 521 (2d Cir. 1980). . . . Romero's car was stopped by DEA agents, after one of Romero's U-turns on a dead-end street, by means of three or four DEA cars blocking its forward progress, and one DEA car directly behind. There was evidence that the agents rapidly surrounded the Cadillac with their guns drawn, and at least two of the occupants of the car were physically removed from the car by the agents. Marin, as he was being frisked, tried to walk away and was physically restrained by Agent Papantoniou. Romero would have been no freer to leave; Agent Hanna testified that he would physically have prevented any similar attempt by Romero. Thus, while the defendants were not formally placed under arrest until after the cocaine was found in the trunk, we conclude that the initial stop of the car was sufficiently forceful and intrusive that it was tantamount to an arrest.

 Id. at 81. The Marin court went on to hold that the officers in that case did, in fact, have probable cause to effect the arrest in question. The facts recounted in Marin are sufficiently similar to the events that occurred on January 17, 1992 to lead this court to conclude that Scopo was the subject of a full-blown arrest for which probable cause was required. See also United States v. Sanchez, 719 F. Supp. 128, 132-33 (E.D.N.Y. 1989), aff'd without opinion, 902 F.2d 1556 (2d Cir. 1990). *fn7"

 The government responds to this conclusion by arguing that the detectives' precautions on the evening in question did not convert the investigative stop into an arrest because the detectives merely conducted themselves in a manner warranted by the possibility of danger. For support, the government cites several cases that describe specific precautions deemed reasonable in light of the circumstances faced by the officers; rather than standing for the narrow exceptions for which they are cited, however, these cases also reiterate the general proposition that a court must evaluate the reasonableness of the officers' behavior, taken as a whole, to decide whether an intrusion was justified. See United States v. Nargi, 732 F.2d 1102, 1106 (2d Cir. 1984) ("A display of guns by the police . . . does not automatically convert a stop into an arrest.") (emphasis added); United States v. Pelusio, 725 F.2d 161, 166 (2d Cir. 1983) ("Given the importance of the law enforcement interest in locating the persons suspected of committing serious crimes that day and in preventing further violence, the police intrusion [including blocking of defendant's car during investigative stop] was reasonable."); United States v. Harley, 682 F.2d 398, 402 (2d Cir. 1982) ("The nature of the crime under investigation, the location of the stop, the time of day, the reaction of the suspect to the approach of police are all ...


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