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UNITED STATES v. GONZALEZ

October 12, 1994

UNITED STATES OF AMERICA
v.
ESTEBAN GONZALEZ and ALFREDO COLON, Defendants.



The opinion of the court was delivered by: PETER K. LEISURE

 LEISURE, District Judge:

 On March 16, 1994, a grand jury sitting in the Southern District of New York charged defendants Esteban Gonzalez ("Gonzalez") and Alfredo Colon ("Colon") (collectively "defendants") each with violating 18 U.S.C. § 922(g)(1). This statute, in substance, makes it a federal crime for a convicted felon to possess a firearm that has travelled in interstate commerce. On April 8, 1994, the Government filed a prior felony information notifying Gonzalez that the sentencing enhancement under 18 U.S.C. § 924(e) may be applicable in his case.

 Defendants filed an array of pretrial motions. Colon's motions sought: (1) a severance of his trial from that of his co-defendant; (2) suppression of his statements to law enforcement officials because he did not receive Miranda warnings or because his statements were coerced; (3) suppression of certain evidence against him because he was arrested without probable cause; (4) additional discovery, including Brady material; and (5) permission to join in motions of his co-defendant that are not inconsistent with the relief that he sought.

 Gonzalez's motions sought: (1) a severance of his trial from that of his co-defendant; (2) an order (a) bifurcating his trial, or (b) requiring the Government to stipulate to satisfaction of the "prior felony conviction" element of § 922(g)(1), or (c) requiring the Government to stipulate the fact of his prior felony conviction; (3) an order barring the Government from presenting evidence at trial of his prior similar acts; (4) suppression of his statements to law enforcement officials because the statements were made prior to Miranda warnings or were involuntary; (5) suppression of identification against him because the police used an impermissibly suggestive show-up procedure; (6) suppression of evidence against him because he was arrested without probable cause; (7) permission to join in motions of his co-defendant that are not inconsistent with the relief that he sought; and (8) permission to bring additional motions.

 On September 20 and 21, 1994, the Court heard evidence on five issues: (1) whether Colon was arrested without probable cause; (2) whether Colon's statements to law enforcement officials are admissible; (3) whether Gonzalez was arrested without probable cause; (4) whether a show-up identification of Gonzalez was impermissibly suggestive; and (5) whether Gonzalez's statements to law enforcement officials are admissible. Two witnesses testified at the hearing: Officer Thomas Crowe ("Officer Crowe") of the New York City Police Department ("N.Y.P.D."), and Officer Ralph Argiento ("Officer Argiento"), also of the N.Y.P.D. At the close of the hearing, the Court reserved judgment on the five issues as to which evidence was presented, and ruled from the bench on defendants' other motions. See Suppression Hearing Transcript ("Transcript") at 193-210. *fn1"

 DISCUSSION

 The Court has considered defendants' remaining motions in light of the record developed to date. For the reasons stated below, Colon's motion to suppress evidence on the ground that he was arrested without probable cause is denied. Colon's motion to suppress his statements to law enforcement officials is denied in part and granted in part. Gonzalez's motion to suppress evidence on the ground that he was arrested without probable cause is denied. Gonzalez's motion to suppress identification evidence against him is denied. Gonzalez's motion to suppress his statements to law enforcement officials is denied in part and granted in part.

 I. PROBABLE CAUSE TO ARREST COLON

 Colon argues that he was arrested without probable cause. In support of his contention, he has submitted an affidavit in which he generally denies Officer Crowe's allegations against him and specifically denies Officer Crowe's allegation that Officer Crowe saw him and Gonzalez each in possession of a firearm on the night in question. The Government responds that Officer Crowe's testimony against Colon at the suppression hearing was credible and is sufficient to establish probable cause.

 "'To establish probable cause, it is not necessary to make a prima facie showing of criminal activity or to demonstrate that it is more probable than not that a crime has been or is being committed.'" United States v. Jimenez, 824 F. Supp. 351, 371 (S.D.N.Y. 1993) (quoting United States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987) (citation omitted), cert. denied, 484 U.S. 1077, 98 L. Ed. 2d 1018, 108 S. Ct. 1056 (1988)). Instead, "probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested." United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990). Put simply, "'probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.'" Jimenez, 824 F. Supp. at 369-70 (quoting Illinois v. Gates, 462 U.S. 213, 244 n.13, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983)).

 The Court finds that these standards are amply satisfied here. At the suppression hearing, Officer Crowe credibly testified to the following: As he returned home from McDonald's on the evening in question, Officer Crowe saw Colon walking up the walkway in front of Officer Crowe's home. See Transcript at 13. When Officer Crowe entered his driveway and Colon saw him, Colon "raised his hands in the air in kind of a gesture like . . . oh, wrong house." Id. Colon then left Officer Crowe's walkway and proceeded away from Officer Crowe's home. See id. at 14. However, Colon did not approach either of the neighboring homes; instead, he walked up and down the street. See id. This behavior aroused Officer Crowe's suspicions. See id.

 After entering his home, Officer Crowe observed two vehicles approach, each operating without headlights. Id. at 14-16. One was "a white Chevy Corsica," the other, "a red Chevy Beretta, two tone, blue -- maroon and silver." Id. at 16. Each driver exited the vehicle that he was driving, and Colon and the two drivers talked with one another. See id. at 16-18. The driver of the red and silver Beretta was defendant Esteban Gonzalez. See id. at 18-19. After a brief conversation, Gonzalez and the driver of the Corsica entered their vehicles and drove away, each vehicle again operating without headlights. See id. at 19. Colon, however, "remained in the area . . . still pacing up and down the block." Id. at 21.

 Officer Crowe then "observed . . . Gonzalez enter the block . . . [and] walk up . . . along the sidewalk in the general direction of . . . Colon." Id. Gonzalez and Colon engaged in another brief conversation, then "began to walk up the block along [a] fence line . . . and . . . crouch down. . . ." Id. at 22. Officer Crowe called 911. See id. Officer Crowe then "noticed that [Colon and Gonzalez] hastily ran out from the sidewalk . . . and began to hide behind a parked car." Id. at 23. At this point, Officer Crowe decided to "come outside and take some kind of police action." Id. at 24.

 From the walkway in front of his house, Officer Crowe observed each defendant "brandish a single firearm . . . hold [it] down to [his] side and . . . crouch down behind the parked vehicles." Id. at 24. "Both males [then] turned and started to run in [Officer Crowe's] direction looking [back] over their shoulders. . . ." Id. at 24-25. Officer Crowe "yelled out, 'Police, don't move.'" Id. at 26. Gonzalez then "raised his firearm . . . across his body" and "fired one shot in [Officer Crowe's] direction." Id. at 26-27. Officer Crowe responded with two shots. See id. at 27. Gonzalez and Colon then ran into a driveway area, where each discarded a weapon. See id. at 27-28. The two then exited the driveway and fled the scene on foot. See id. at 28.

 Officer Crowe gave "chase . . . yelling that [he] was a police officer, to stop." Id. As Gonzalez and Colon were fleeing, Officer Crowe "observed . . . that . . . Gonzalez now had in his hand a second firearm. . . ." Id. at 29. Officer Crowe caught Colon, but Gonzalez escaped on foot. See id.

 In light of the Court's finding that Officer Crowe's testimony to the foregoing was credible, the conclusion that there was probable cause to arrest Colon is inescapable. See Sibron v. New York, 392 U.S. 40, 66-67, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968) ("It is difficult to conceive of stronger grounds for an arrest, short of actual eyewitness observation of criminal activity," than where an off-duty police officer in his apartment "heard strange noises at his door which apparently led him to believe that someone sought to force entry. When he investigated these noises he saw two men, whom he had never seen before in his 12 years in the building, tiptoeing furtively about the hallway. . . . And when [the officer] entered the hallway, the men fled down the stairs.").

 At the suppression hearing, Colon asserted, through counsel, that Officer Crowe's testimony against Colon was not credible because it was materially inconsistent with statements that Officer Crowe had given on other occasions. See. e.g., Transcript at 81, 210-20 (arguing that Officer Crowe's testimony was made from "whole cloth"). Colon's counsel relied, in particular, on differences between Officer Crowe's testimony at the suppression hearing and the account that Officer Crowe gave relating to at least some aspects of this incident at a police inquiry into the circumstances surrounding his discharge of his weapon. See, e.g., id. at 48-51 (concerning whether Officer Crowe saw two or three individuals in a White Corsica earlier in evening); id. at 67-72 (concerning whether Officer Crowe was at his front window or in front of his house when he first observed Gonzalez and Colon draw guns); id. at 83-87 (concerning whether Gonzalez and Colon were on sidewalk or in street when Gonzalez fired at Officer Crowe). Colon's counsel relied to a lesser extent on differences between Officer Crowe's testimony at the suppression hearing and his testimony before the grand jury in this matter. See, e.g., id. at 60-64 (concerning whether or not Officer Crowe had retrieved his revolver yet, when he observed Colon talking with the drivers of the Corsica and Beretta that approached and left with their headlights off). *fn2"

 However, since observing Officer Crowe testify at the suppression hearing, the Court has thoroughly reviewed the record in this case, including the suppression hearing transcript, photographs introduced at the suppression hearing, the minutes of the police inquiry, Officer Crowe's grand jury testimony, and the affidavits of Gonzalez and Colon. On the present record, the Court finds that Colon's broadside attack on Officer Crowe's credibility is without merit, at least for purposes of the probable cause inquiry. The points that counsel raised were either wholly collateral to the probable cause determination, see id. at 48-51, 60-64, 101-03, 132-33, or did not undermine Officer Crowe's credibility significantly for probable cause purposes, see id. at 67-72; 83-87; 96-98. *fn3"

 II. THE ADMISSIBILITY OF COLON'S STATEMENTS TO OFFICER CROWE.

 Colon also argues that the Court should suppress his statements to Officer Crowe because they were made prior to Miranda warnings. At the suppression hearing, Colon, through counsel, also moved to suppress Colon's first statement to Officer Crowe because it was coerced. See Transcript at 91-92. The Government does not dispute that Colon's statements were made prior to Miranda warnings, but argues that they are admissible nevertheless.

 If a defendant's statements to law enforcement officials are involuntary, they are inadmissible against him for any purpose. See Mincey v. Arizona, 437 U.S. 385, 398, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978). A defendant's statements are deemed "involuntary" where "the totality of the circumstances" "caused the [defendant's] will to be overborne at the time he confessed." Green v. Scully, 850 F.2d 894, 900-02 (2d Cir.), cert. denied, 488 U.S. 945, 102 L. Ed. 2d 363, 109 S. Ct. 374 (1988).

 Moreover, the general rule is that a defendant's statements made during "custodial interrogation" are not admissible against him for use in the Government's case-in-chief, unless the Government "demonstrates that, prior to any questioning, the defendant was "'warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed."'" United States v. Mitchell, 966 F.2d 92, 97-98 (2d Cir. 1992) (quoting Berkemer v. McCarty, 468 U.S. 420, 428-29, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984) (quoting Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966))). A detention becomes "custodial" for Miranda purposes when "'a reasonable person in the defendant's position would have understood himself to be "subjected to restraints comparable to those associated with a formal arrest."'" United States v. Mussaleen, 35 F.3d 692, 1994 WL 498467, at *4 (2d Cir. Sept. 13, 1994) (quoting Mitchell, 966 F.2d at 98 (quoting Berkemer, 468 U.S. at 441)). Police conduct toward a defendant constitutes "'interrogation'" for Miranda purposes where it involves "'words or actions . . . that the police should know are reasonably likely to elicit an incriminating response from a subject.'" United States v. Colon, 835 F.2d 27, 30 (2d Cir. 1987) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980)), cert. denied, 485 U.S. 980, 108 S. Ct. 1279, 99 L. Ed. 2d 490 (1988).

 However, the general rule notwithstanding, "there are limited circumstances where the judicially imposed strictures of Miranda are inapplicable." New York v. Quarles, 467 U.S. 649, 653 n.3, 81 L. Ed. 2d 550, 104 S. Ct. 2626 (1984). In particular, a defendant's custodial statements are admissible against him where they are made in response to "questions reasonably prompted by a concern for the public safety." Id. at 656. *fn4" The reason is that "the need for answers to questions in a situation posing a threat to ...


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