Yet, approximately twenty minutes before that time, the radio message was transmitted. Indeed, the transmission occurred before Mr. Chin is said to have committed the traffic infraction which lead to him being stopped on Livonia Avenue.
Officer Bill had no recollection of the stipulated radio transmission being made. Neither did Officer Hare or Officer Kalt who could hear, over their car radio, any transmissions from the Bill-Killagrew vehicle. This collective failure to remember, coupled with the times involved, raise a series of questions. Was Mr. Chin pulled over because he drove over a double line, or because of certain information that Officer Bill had as reflected in the radio call? If he did commit the traffic infraction, was that a pretext for the stop, the true concern of Officer Bill being rooted in some information he had about Mr. Chin and a gun?
Or perhaps, the radio transmission did not pertain to Mr. Chin, but to another individual. That possibility may not be discounted, given the nature of the area that was being patrolled, where guns are commonplace. The fact that almost five years passed from time of the arrest until the officers testified at the suppression hearing could explain their failure to remember the radio call, particularly if it had nothing at all to do with Mr. Chin and was, accordingly, irrelevant to this case. Be that as it may, however, the inconsistency between the stipulation and the officers' testimony regarding when they learned that Mr. Chin might be in possession of a firearm, raises suspicions regarding Officer Bill's claimed reason for stopping the Prelude on Livonia Avenue. Under the circumstances, that testimony is not convincing.
Notwithstanding the muddled character of this first phase of the government's proof, I found each officer's testimony credible as to the events which transpired following the initial stop of the Chin vehicle. From that point forward, it is clear to me that what the officers said happened did, in fact, happen.
CONCLUSIONS OF LAW
The ultimate burden of proof as to the legitimacy of the seizure in this case rests with the government. United States v. Sacco, 563 F.2d 552, 558 (2d Cir. 1977), cert. denied, 434 U.S. 1039, 98 S. Ct. 779, 54 L. Ed. 2d 789 (1978); United States v. Levasseur, 620 F. Supp. 624, 628 (E.D.N.Y. 1985); 4 LaFave, Search and Seizure, § 11.2(b) at p. 218 (2d ed. 1987) ("With respect to the issue which is usually central in a motion to suppress hearing -- the reasonableness of the challenged search or seizure -- most states follow the rule which is utilized in the federal courts: if the search and seizure was pursuant to a warrant, the defendant has the burden of proof; but if the police acted without a warrant the burden of proof is on the prosecution.").
By way of format, the Court will initially focus on the stop of the Chin vehicle on Livonia Avenue, to be followed by an analysis regarding the events which occurred thereafter.
A. Stop on Livonia Avenue
As indicated in the Findings of Fact section of this decision, supra, the government has not met its burden of proof to the extent it seeks to justify the challenged search on the basis of the initial stop. Of course, if Officer Bill observed the Prelude cross a double line, his stopping of the vehicle would have been authorized even if motivated by information he had concerning a possible weapon in the vehicle, rather than by the traffic infraction itself. As explained by Judge Altimari in United States v. Thompson, Docket # 93-1602 (2d Cir. July 6, 1994) ("The question of whether the stop was pretextual or not . . . is irrelevant to determining the arrest's validity. So long as the stop was lawful, the resulting arrest will not violate the Fourth Amendment," citing United States v. Scopo, 19 F.3d 777, 784 [2d Cir. 1994]). The holdings in Thompson and Scopo are unavailing to the government, however, because the inconsistencies in the proof has caused me to reject, in toto, Officer Bill's explanation as to why the Chin vehicle was initially stopped. Absent that testimony, it necessarily follows that the stop on Livonia was violative of the Fourth Amendment, as not being supported by a "reasonable suspicion that illegal activity was afoot." United States v. Morrison, 546 F.2d 319 (9th Cir. 1976).
The question now arises whether the government's alternative argument of attenuation is sufficient to validate the search.
B. Events After Livonia Avenue Stop
If Mr. Chin had submitted to the unlawful stop on Livonia Avenue and the weapon and clip had then been discovered in a concomitant frisk or search at that location, the items clearly would be suppressed as the fruit of the unlawful stop. 4 LaFave, Search and Seizure § 11.4(d) at p. 408 (2d ed., 1987).
Instead of permitting the officers to conduct the stop, however, defendant fled. In the course of fleeing, he passed through a red light, drove the wrong way on a number of one way streets at a high rate of speed, in one instance forcing a motorist off the road, and committed other traffic offenses.
Although the traffic offenses presumably would not have occurred "but for" the unlawful stop, that fact alone does not prelude admissibility. Dunaway v. New York, 442 U.S. 200, 217, 99 S. Ct. 2248, 2259, 60 L. Ed. 2d 824 (1979). "The relevant inquiry examines the extent of the casual connection between the lawless police conduct and the evidence in question; i.e., 'whether, granting the establishment of the primary illegality, the evidence to which instant objection is made has been made at the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint,'" quoting from Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441 (1963). United States v. Bailey, 691 F.2d 1009, 1053 (11th Cir. 1982), cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983).
A juxtapositioning of the facts in this case with the Wong Sun standard indicates -- notwithstanding the temporal proximity between the initial stop and subsequent arrest -- that the items seized are admissible. The defendant's flight, and subsequent violations of the law were not foreseeable, and constituted intervening acts free of the initial taint associated with the stopping of his vehicle on Livonia Street. See United States v. Bailey, supra, 691 F.2d at pp. 1013-17; United States v. Garcia, 516 F.2d 318 (9th Cir), cert. denied, 423 U.S. 934, 96 S. Ct. 290 (1975) (defendant directed to pull over and stop at a highway checkpoint; he did so momentarily and then fled, leading the police on a high speed chase he sought to suppress marijuana recovered from his vehicle when he was finally apprehended shortly thereafter, claiming that the evidence was tainted by the illegal checkpoint stop; the Ninth Circuit Court of Appeals (1) mentioned the Wong Sun balancing test previously discussed in the present decision, (2) assumed, arguendo, the illegality of the checkpoint stop and (3) held that the motion to suppress was properly denied because, inter alia, "the Border Patrol officers did not exploit the illegal stop in any way. The flight was the voluntary conduct of [the defendant].").
In the present case, discovery of the weapon in the alleyway by 407 Bristol Street, and the contemporaneous search of the Prelude which produced the ammunition clip ( United States v. Abel, 707 F.2d 1013, 1015, n.1 [9th Cir. 1983], rev'd on other grounds, 469 U.S. 45, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984)), did not, therefore, offend the Fourth Amendment.
A finding of admissibility in the case at bar is consistent with the policies underlying the exclusionary rule and the doctrine of attenuation. Evidence is suppressed to discourage the police from violating citizens' rights, but only at the expense of excluding otherwise competent evidence. Thus, in determining whether evidence should be excluded, a court should weigh the cost to society of excluding the evidence against the additional incentive exclusion would provide to police not to violate persons' constitutional rights. See United States v. Ceccolini, 435 U.S. 268, 279, 98 S. Ct. 1054, 1061, 55 L. Ed. 2d 268 (1978).
Here, the costs to society of exclusion are significant. In an ordinary case, the exclusionary rule may cause relevant evidence not to be placed before the trier of fact. But in the case of unprovoked flight following an unlawful stop, the cost to society of exclusion following a second stop and arrest is compounded for it would invite individuals to flee from officers endeavoring to effect an arrest. If the would-be arrestee escapes, he has evaded the law; if he does not, he has lost nothing vis a vis the evidence sought to be suppressed because the seizure of those items could not be validated as incidental to the second stop and lawful arrest. Such a result would be inconsistent with legitimate law enforcement concerns.
At the same time, permitting the use of the evidence in the present case is unlikely to weaken the deterrent effect of the exclusionary rule, as "flight in this setting is not a foreseeable consequence of the police activity in question . . . and could not be counted on by the [police] to salvage an illegal search," United States v. Sheppard, 901 F.2d 1230, 1236 (5th Cir. 1990). It should also be noted that, in the present case, only Officer Bill was involved in the initial stop. The arresting officer joined the chase after Mr. Chin had fled from Livonia Avenue. That officer, who incidentally also recovered the weapon, knew nothing of what had earlier occurred. Deterrent considerations are therefore irrelevant in evaluating his conduct.
The weapon discarded by defendant in the course of his flight on foot was lawfully obtained by the police, as was the ammunition clip found as the result of the contemporaneous search of the Prelude on Bristol Street. Accordingly, the defendant's motion to suppress these items of physical evidence is denied.
Dated: Hauppauge, New York
July 25, 1994
DENIS R. HURLEY, U.S.D.J.