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April 1, 1996

- CAROL BAYLESS, Defendant.

The opinion of the court was delivered by: BAER

Decision and Order

 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.

  II. Discussion

 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 analysis to the witnesses before me. *fn2"

 For those who may take the time to read this decision, a word about the law and how it regards the issue of credibility may be helpful. Determinations of credibility are reviewed only for an abuse of discretion; "where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 574, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985), (citing, e.g., United States v. Yellow Cab Co., 338 U.S. 338, 342, 94 L. Ed. 150, 70 S. Ct. 177 (1949)). A factfinder's credibility determination is given considerable weight, and his decision "to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence . . . can virtually never be clear error." Anderson, 470 U.S. at 575 (citations omitted). Thus it becomes vital that judges take credibility into serious consideration, as I did and as every judge charges their juries to do when they are the factfinders.

 At the initial hearing, there was basically a single witness to the occurrence, Officer Carroll, along with the videotaped confession introduced by the Government. Since the Government proffered the tape and because application of the Federal Rules of Evidence is relaxed during suppression hearings, the Court utilized the videotape in making its decision. See Fed. R. Evid. 104(a), 1101(d)(1); see also United States v. Matlock, 415 U.S. 164, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974).

 Let us look for a moment at those two witnesses. Each painted a different picture and their testimony went into the balancing process used to determine credibility. First, Officer Carroll testified that he observed the defendant driving eastbound on West 176th Street, Jan. Tr. at 5; Bayless, 913 F. Supp. at 239. The defendant, however, maintained that she did not drive to New York City from Detroit and that she did not begin to drive the Red Caprice until after the narcotics were placed in the trunk. Videotaped Statement; Bayless, 913 F. Supp. at 239. Second, according to the defendant's videotaped statement, she waited for a ten minute period double parked outside of an apartment building on West 176th Street while the dealers took the money out of the trunk and went inside to complete the transaction. Videotaped Statement; Bayless, 913 F. Supp. at 236-37. Officer Carroll testified that he observed the defendant as she drove along West 176th Street and then pulled over, stopped the car and double parked on the north side of the street. Jan. Tr. at 5. Noticeably absent from Officer Carroll's testimony was the ten minute period after the car stopped and during which time the men took the money out of the trunk and into the building.

 Third, Officer Carroll testified that he observed at least one of the males running from the scene. Jan. Tr. at 7-10; Bayless, 913 F. Supp. at 241. In marked contrast, the defendant stated in her videotaped statement that as she proceeded to drive to the corner of 176th Street and St. Nicholas Avenue, she saw the males walk, not run, in the same direction as she was driving. Videotaped Statement; Bayless, 913 F. Supp. at 241-42. Fourth, Officer Carroll testified that he did not observe any conversation or contact between the defendant and the males at or about the time the bags were placed in the trunk. Jan. Tr. at 6; Bayless, 913 F. Supp. at 235. The defendant stated that after the males placed the duffle bags in the trunk, they handed her the keys to the car so that she could begin her trip home. Videotaped Statement; Bayless, 913 F. Supp. at 237.

 The law for a Terry-type investigative stop requires only a specific and articulable suspicion, a significantly lesser standard than the probable cause requirement. Accordingly, any inquiry into the reasonableness of an officer's suspicion is totally dependent on the factfinder crediting the testimony of the witnesses. Because of the disparate stories presented and as well the lack of cogent evidence with respect to the character of the neighborhood, *fn3" I concluded that the Government had failed to carry its burden. Thus, the defendant's motion was granted.

 At the second hearing, the Government produced not only the other officer who observed the events at issue here, but also the report he prepared hours after the arrest for the Chief of Patrol's review and which detailed the events leading to the arrest. See Affirm. of Sgt. Walter E. Bentley, Ex. 3504-A. The Government additionally provided two affirmations which described the drug trafficking activity in Washington Heights. *fn4" Furthermore, the defendant chose to take the stand. This provided the finder of fact with an opportunity to observe her demeanor generally and on cross examination in particular. As a consequence, the Court gained a more complete and more accurate picture of the events.

 The rehearing provided the Court with unanimity on a number of integral issues. Sergeant Bentley's testimony corroborated several significant portions of Officer Carroll's story and presented a more credible chronology of the events of April 21st. *fn5" For example, Sergeant Bentley and Officer Carroll corroborated one another to the effect that they both first observed the defendant driving eastbound on West 176th Street and then watched as she pulled to the north side of the street, just shy of the corner of St. Nicholas Avenue, where she double parked. Compare March Tr. at 13-14; Jan. Tr. at 5. Both officers observed four males loading two large duffle bags into the trunk of the car and although the officers differ as to the precision with which the trunk was loaded, there is unanimity as to the abbreviated time period in which the events unfolded, and the lack of conversation or an exchange of keys between the males and the defendant. Compare March Tr. at 14 *fn6" ; Jan. Tr. at 6. *fn7" Finally, both officers observed at least one male, if not more, running from the scene once the duffle bags were placed in the trunk and the males had noticed the officers. Compare March Tr. at 15-16, *fn8" ; Jan. Tr. at 7. *fn9"

 The Court found Sergeant Bentley to be a credible witness which bolstered the credibility of his partner. *fn10" In contrast, as a consequence of the defendant's testimony and that of the Sergeant, her story is now less convincing. *fn11" Although I previously accepted the defendant's version based on the videotaped confession, the additional evidence has necessarily changed my view. In short, the Government and the defendant both provided this Court with more evidence and upon review, the Government's version is more credible.

  c. The Investigative Stop is Valid.

 The standards for a Terry-type investigative stop and what qualifies as a reasonable search and seizure under the Fourth Amendment were spelled out in detail in the January 22, 1996 Decision and Order of this Court, Bayless, 913 F. Supp. at 238-39, and also appear in the progeny of caselaw on this issue.

 Looking at the totality of the circumstances, as I must, the facts now established satisfy the test commonly applied by the Courts: "a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot.'" United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)). Officer Carroll and Sergeant Bentley together have articulated sufficient facts to create a reasonable suspicion that the defendant was involved in criminal activity when they made the decision to stop her car. Therefore, the investigative stop of the defendant in this case was valid.

 Let me emphasize that I limited my inquiry to the investigative stop. Bayless, 913 F. Supp. at 238. In my view, once the officers established that the defendant violated New York's Vehicle and Traffic Law, they were entitled to arrest her, impound her vehicle, and consistent with department procedures, conduct an inventory search of the car. See Jan. Tr. at 15; N.Y. Vehicle and Traffic Law ยง 165.05 (McKinney 1995).

 d. Additional Thoughts.

 A legal opinion stands for a proposition of law, a holding. Additional material which is included in most opinions but which does not relate directly to the holding is known as dicta. Although dicta may color the holding of an opinion, it by no means constitutes a legal or factual conclusion. On that score, unfortunately the hyperbole (dicta) in my initial decision not only obscured the true focus of my analysis, but regretfully may have demeaned the law-abiding men and women who make Washington Heights their home and the vast majority of the dedicated men and women in blue who patrol the streets of our great City.

 In this Decision and Order the Court has stated its basis for vacating its prior ruling and, although the Court has now determined that the Government shouldered its burden, the Government's success did not come easily. The facts of this case have consistently danced the fine line between a valid search and seizure so essential to the Government's criminal justice initiative and a trespass on citizens' rights. While it is clear that the Fourth Amendment operates to protect all members of our society from unreasonable searches and seizures, it is equally as unclear whether this protection exists to its fullest extent for people of color generally, and in inner-city neighborhoods in particular.

 This Court and others will continue fearlessly to draw the line that separates "investigatory stops supported by 'specific, objective facts' from those stops occurring essentially at the 'unfettered discretion of officers in the field.'" Buenaventura-Ariza, 615 F.2d 29, 31 (quoting Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979)). For as Justice Marshall warned:


Because the strongest advocates of Fourth Amendment rights are frequently criminals, it is easy to forget that our interpretations of such rights apply to the innocent and the guilty alike. *fn12"

 III. Conclusion

 For the foregoing reasons, the January 22, 1996 Decision and Order of this Court is VACATED. The defendant's motion to suppress both the physical evidence seized from the vehicle she was driving at the time of her arrest and her post arrest statements is DENIED. The parties are to contact my Courtroom Deputy within 72 hours of receipt of this decision to set a date for the next step in this litigation.


 New York, New York

 April 1, 1996

 Harold Baer, Jr.


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