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UNITED STATES v. BAYLESS

January 22, 1996

UNITED STATES OF AMERICA -
v.
- CAROL BAYLESS, Defendant.



The opinion of the court was delivered by: BAER

 Harold Baer, Jr., District Judge *fn1"

 Defendant Carol Bayless was charged in connection with an alleged cocaine and heroin distribution conspiracy. Defendant now moves to suppress (1) physical evidence seized from the car she was driving at the time of her arrest, and (2) her post arrest statements. The Government consented to a hearing on defendant's motion. On January 3 and 4, 1996 I heard testimony from three New York City Police Officers, *fn2" viewed the defendant's video-taped statement and heard argument from the Government and defense counsel.

 For the reasons which follow, I find that the stop was in violation of the defendant's Fourth Amendment rights and, therefore, defendant's motion to suppress is GRANTED.

 I. Background

 
The great enemy of truth is very often not the lie -- deliberate, contrived, and dishonest -- but the myth -- persistent, pervasive and realistic. *fn3"

 Defendant Carol Bayless, a middle-aged black woman was arrested at approximately 5:00 a.m. on April 21, 1995 at the corner of 176th Street and Amsterdam Avenue in the Washington Heights section of New York City. At the time of her arrest, defendant was driving an Alamo Rental Car with Michigan license plates. When police officers opened the trunk of the car, a 1995 Red Chevrolet Caprice, they found two duffle bags containing approximately 34 kilograms of cocaine and 2 kilograms of heroin.

 The prosecution's version of the events leading up to the defendant's arrest differs dramatically from that of the defendant in her videotaped statement. Accordingly, I have divided the background section into two parts so as to more clearly spell out these discrepancies. Let me say at the outset, that based on the defendant's videotaped admissions about the events leading up to the stop, the search and her arrest, including statements which unequivocally implicate her own son, I find her statement to be credible and reject the testimony proffered by Officer Carroll.

 a. Testimony of the Arresting Officer

 Police Officer Richard Carroll testified that on April 21, 1995 he and his partner, Sergeant Bentley, both 10 year veterans of the police force, were assigned to a plain clothes anti-crime patrol unit. On this night, they were to patrol the northern end of Manhattan, the province of the 32nd, 33rd and 34th Police Precincts. *fn4" Tr. at 25. Officer Carroll defined the area of patrol to be "from 155th Street up to the tip of Manhattan, everything north of 155th." Tr. at 4. Officer Carroll characterized this entire area as "an area known for its high drugs . . . a hub for the drug trade." Tr. at 5.

 At approximately 5:00 a.m. on April 21st the officers, who were in an unmarked patrol car, turned onto 176th Street and observed the defendant's car shortly thereafter. Tr. at 4-5. Officer Carroll testified that when he first saw defendant's car, it was moving slowly along 176th Street. Before reaching the intersection of 176th Street and St. Nicholas Avenue the defendant pulled over to the north side of the street and double parked the car. Tr. at 5. *fn5" The officers did not observe any one in addition to the driver in the car. Id.

 Officer Carroll testified that as soon as the car stopped, four unidentified males emerged from between parked cars on the south side of the street. Tr. at 6. The males crossed the street walking single file, the defendant leaned over to the passenger side of the car and pushed the button for the trunk release. Id. The first male then lifted the trunk open, the second and third males each placed a large black duffel bag into the trunk and the fourth male closed the trunk. Id. Officer Carroll testified as follows:

 
As soon as the auto stopped, I observed four males come from the south sidewalk between parked autos. They entered the street in a single file-like walk to the rear of the auto. I saw just before they reached it the driver of the auto lean over into the passenger side of the car. The trunk opened a few inches. The first male opened the trunk. The next male came and through [sic] a duffle bag, a large black duffle bag into the back. Another large male was also carrying a black duffle bag, and he threw that into the back. The fourth male came and closed the trunk.

 Tr. at 6. Officer Carroll testified that he did not observe any conversation between the males and the driver of the car and the entire transaction occurred within seconds. Id.

 The driver of the auto then proceeded to the corner of 176th Street and St. Nicholas Avenue where she waited for the light to turn from red to green. Tr. at 6. The officers pulled up behind the Chevrolet Caprice and also waited for the light to change. Tr. at 6. According to Officer Carroll he did not signal the driver to pull the car over nor did he encourage the driver to proceed through the intersection. Tr. at 6-7.

 At this time the four males were standing on the sidewalk on the north side of the street and when the officers' car came to a stop, the officers were staring at the males. Tr. at 7. According to Officer Carroll, two of the males noticed the police officers, spoke briefly to each other and:

 
at that point the four males moved in different directions at a rapid gait. The individual that . . . [Officer Carroll] watched went to the corner of 176th and St. Nicholas, and as he reached the corner began to run northbound on St. Nicholas.

 Tr. at 7. *fn6"

 According to Officer Carroll, the light changed to green shortly thereafter and the defendant proceeded at a normal rate of speed through the intersection and continued along 176th Street. Tr. at 7. The officers followed behind and asked officers in another car if they would, via computer, run a check on the Michigan license plate. Tr. at 7. Two blocks later, the officers turned on the red "fire-ball" light on their dashboard and pulled the defendant over. Tr. at 8.

 When asked by the Court what prompted the officers to pull the defendant over, Officer Carroll replied: "Sergeant Bentley wanted to stop the auto before it got onto a major roadway, and the highway was just ahead." Tr. at 8. At this time the officers had not received a response from the computer check on the license plate and did not know that the defendant was operating a rental car. Tr. at 8. After further inquiry, Officer Carroll testified that he was prompted to pull the defendant over based on the following observations: the car had an out-of-state license plate; the actions of the four males, particularly the way they crossed the street in single file and did not ...


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