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UNITED STATES v. FERNANDEZ

August 23, 1996

UNITED STATES OF AMERICA against ANTONIO FERNANDEZ, a/k/a "King Tone," Defendant.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Defendant Antonio Fernandez is charged with knowingly possessing a firearm in violation of 18 U.S.C. § 922(g)(1), which prohibits firearm possession by convicted felons. Defendant moves to suppress physical evidence seized from him during a police search conducted on May 12, 1995, as well as a statement he allegedly made at that time.

 I. Factual Background

 On May 12, 1995, Sergeant Keith Loughran and Officer James Murphy of the 48th Precinct were on duty on routine patrol. Shortly after 7:00 p.m., they received a radio run directing them to investigate a 911 call reporting a meeting of the Latin Kings at a park on Fairmont Place and Clinton Avenue. Tr. 18. *fn1" An anonymous caller had reported that at least one of the gang members was armed with a gun. He was described as a male Hispanic wearing a white jacket with black stripes. No further description was given. *fn2" See Def. Ex. A.

 When they arrived at the park, Sergeant Loughran and Officer Murphy were joined by Officers Pardo, Parco and Wood, all of the 48th Precinct. Sergeant Loughran and Officer Murphy observed a group of 50 or 60 young men meeting in a circle, and a smaller group of three or four men standing off to the side. One of the men in the smaller group was defendant Fernandez. Each officer glanced at both groups, but Sergeant Loughran ended up focusing on the larger group and Officer Murphy on the smaller group. Tr. 21-22, 45-46, 93-94.

 Meanwhile, Officers Murphy, Parco and Pardo had begun following the smaller group of men standing off to the side. This group had started walking away shortly after the police arrived at the park. Tr. 23. Officer Murphy testified that he wanted to follow them because Defendant was "wearing a jacket similar to the one described in the radio run." Tr. 21. The jacket Defendant wore was black and bright yellow, with a single horizontal white stripe in the middle. Def. Ex. B. Black and yellow are the colors worn by the Latin Kings gang. Tr. 77.

 As the three police officers followed Defendant and his companions, Officer Murphy saw Detective Thomas Murray patrolling in an unmarked car. Using hand signals, Officer Murphy directed Detective Murray to stop Defendant and the others. Tr. 23. Detective Murray drove his car onto the sidewalk, blocking the group from passing, and ordered them to put their hands against the car. Tr. 24. Officers Murphy, Pardo and Parco then arrived and began frisking Defendant and his companions. Tr. 105, 109.

 Officer Murphy testified that as he approached Defendant, he smelled marijuana. Tr. 25. He frisked Defendant along his waistband, the outside of his jacket, and down his pants leg. As he went down the pants leg, he "tapped" on Defendant's pocket and heard a "plasticky" crinkling sound. Tr. 26. Officer Murphy testified that he asked Defendant what was in his pocket and that Defendant replied, "weed." Tr. 26. Officer Murphy then reached inside Defendant's pocket and recovered a small package containing a tiny amount of marijuana. Defendant was then placed under arrest and handcuffed. Tr. 26-27.

 Sergeant Loughran and Officer Murphy transported Defendant to the 48th Precinct station house. At the station house, Officer Murphy frisked Defendant again. Tr. 32. Officer Murphy testified that this time he found a large, fully loaded .38 caliber revolver in the crotch area of Defendant's pants. Tr. 33. Sergeant James Roy, who was standing nearby, testified that he saw Officer Murphy recover the gun. Tr. 82. Although he stated that he was alarmed to see a loaded gun found on a prisoner, Officer Roy made no record of the event and did not report it to any supervisor. Tr. 84. *fn3"

 II. Discussion

 A. The Terry Stop

 Defendant contends that the police did not have reasonable suspicion to stop him and that all of the evidence obtained pursuant to this ...


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