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April 1, 1996

- CAROL BAYLESS, Defendant.

The opinion of the court was delivered by: BAER

 Harold Baer, Jr., District Judge

 Defendant Carol Bayless was charged in connection with an alleged cocaine and heroin distribution conspiracy. Defendant moved to suppress physical evidence seized from the car she was driving at the time of her arrest and her post-arrest statements. On January 3 and 4, 1996 I heard testimony and arguments from the Government and defense counsel and on January 22, 1996 I granted defendant's motion to suppress.

 The Government submitted a Motion for Reconsideration and Reargument on February 6, 1996 and in a brief decision on March 5, 1996, that motion was granted. On March 15, 1996 the original hearing was reopened so that the Government and the defendant, if she so chose, could provide this Court with additional testimony. For the reasons which follow, my original decision is vacated and the motion to suppress is denied.

 I. Background

 Familiarity with the facts of this case as detailed in my January 22nd opinion is assumed. See United States v. Bayless, 913 F. Supp. 232, 234-37 (S.D.N.Y. 1996). For that reason, this Decision and Order does not contain a statement of the background facts. Portions of the background section from the January Decision and Order appear throughout this Decision and Order as do facts which emerged at the March rehearing.

 a. The Burden of Proof and the Burden of Persuasion.

 In every legal proceeding one side bears the burden of proof. The general rule in suppression hearings is that the defendant who moves for suppression bears the initial burden. United States v. Arboleda, 633 F.2d 985, 989 (2d Cir. 1980) (citations omitted); United States v. Levasseur, 618 F. Supp. 1390, 1392 (E.D.N.Y. 1985); United States v. Collins, 863 F. Supp. 165, 169 (S.D.N.Y. 1994); United States v. Chavis, 48 F.3d 871, 872 (5th Cir. 1995). The defendant must present a prima facie case showing a Fourth Amendment violation, i.e., that a government official, acting without a warrant, subjected her to either an arrest or a search and seizure. *fn1" Arboleda 633 F.2d at 989; Levasseur, 618 F. Supp. at 1392; Chavis, 48 F.3d at 872. Once the defendant has met this burden, however, the burden shifts and the law requires the Government to justify its intrusion on the defendant's Constitutional rights. Arboleda, 633 F.2d at 989. Thus, "when it has acted without a warrant, the ultimate burden of persuasion is then upon the government to show that its evidence is not tainted." United States v. Bonilla Romero, 836 F.2d 39, 45 (1st Cir. 1987) (citing Alderman v. United States, 394 U.S. 165, 183, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969)).

 Unlike in other criminal proceedings, the standard of proof in suppression hearings is not proof beyond a reasonable doubt but is the standard used in most civil cases, a preponderance of the credible evidence. United States v. Matlock, 415 U.S. 164, 177, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974); Levasseur, 618 F. Supp. at 1392; Collins, 863 F. Supp. at 169 n.2. This standard requires the Government to demonstrate that it is more likely than not that Sergeant Bentley and Officer Carroll had a reasonable and articulable suspicion that the defendant was engaged in criminal activity when they stopped her vehicle. As I regularly instruct juries in civil litigation, if the credible evidence on an issue is evenly divided between the parties and it is equally probable that one side is as right as the other, the issue must be decided against the party bearing the burden of proof, generally the plaintiff. However, so long as the scales tip, however slightly, in favor of the plaintiff, the plaintiff has shouldered its burden of proof and you must find accordingly.

 In my initial opinion, I determined that the Government failed to carry its burden both in the sufficiency of the proof provided to the Court and its persuasiveness. Bayless, 913 F. Supp. at 234, 239-40. Specifically, the Government failed to carry its burden on two fronts used by Courts to determine whether it has passed the requisite test for a valid "Terry" stop. First, it did not present an adequate and persuasive picture of the narcotics trafficking activity where the events of April 21, 1995 occurred, and second, and more importantly, it failed to provide persuasive and corroborated testimony about one or more of the events leading up to the arrest of the defendant. Added to this were significant factual contradictions between Officer Carroll's testimony and Ms. Bayless' videotaped confession.

 b. Credibility.

 As is apparent from my earlier opinion and the recent rehearing, this case turns, as many do, on the issue of credibility. It is always the factfinder's role to assess and evaluate the credibility, or lack thereof, of each witness presented. If this had been a jury trial, credibility would have been a major factor in any juror's decision. Since reasonable men and women may differ as to the credibility of a witness, jury deliberations frequently go on for long hours and sometimes even for days or weeks. However, because suppression hearings thrust the Court into the role of both factfinder and law giver, credibility in this case is an issue which remains with the Court.

 When I instruct jurors in how to assess credibility, I tell them to decide where the truth lies, to make judgments on the basis of all of the testimony of each witness, the circumstances under which each witness testified, and any other matter in evidence which may help them decide which witnesses are credible and which witnesses are not. As factfinder I apply this same ...

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