matching the description given by the confidential informant could be located. At the Meyers Street address, Rinaldo observed a late 1980's model Buick parked in the driveway. The confidential informant identified the Buick as the car used by Campbell to travel between New York City and Buffalo. Rinaldo transmitted the license plate number to Special Agent William Cookfair of the Immigration and Naturalization Service ("INS") to run a registration check. Agent Cookfair informed Rinaldo over the radio that the car was registered to David Campbell at a Miller Street residence. Cookfair also stated that he recognized Campbell's name from a 1987 narcotics investigation, and that Dr. Bird's Store on East Delevan Street had been the site of several narcotics raids. Rinaldo further testified that he received information over the radio from other officers who were conducting surveillance at the Meyers Street location that they had also had previous contact with a Jamaican man with dreadlocks named David Campbell, involving narcotics and firearms (Tr. 58-62). Rinaldo was unable to provide a time frame for this reported prior contact (Tr. 61-62).
The confidential informant also provided the officers with a detailed description of locations inside the Meyers Street residence where drugs and weapons were kept (Tr. 62-63). She provided Agent Nanna with a telephone number for the residence. Nanna dialed the number on a cellular telephone and handed the phone to the confidential informant. She had a conversation with an individual in the residence. When the conversation ended she told the officers that it was "Dave." He was home, and he was "busy" (Tr. 63-65).
Rinaldo then took the confidential informant to a schoolyard at Fillmore Avenue and Best Street where she got into a car occupied by other officers (Tr. 91). Rinaldo testified that he instructed the other officers to maintain surveillance of the Meyers Street address while he and Nanna made arrangements with the U.S. Attorney's office to obtain search warrants (Tr. 65-66).
At approximately 4:42 p.m., Rinaldo received a radio call from one of the officers on surveillance advising that an individual had been observed leaving the Meyers Street residence and entering the Buick that was parked in the driveway. The Buick backed out of the driveway and proceeded southbound on Meyers Street. Rinaldo instructed the surveilling officers to follow the vehicle closely until a location could be found where the vehicle could be pulled over safely and detained. He and Nanna left the schoolyard and joined a "caravan" of other officers in pursuit of the vehicle (Tr. 66-67).
Rinaldo testified that he received a radio call from Task Force Agent Thomas Gerace advising that he had pulled alongside the vehicle and observed that it was being driven by an individual who met the description provided by the confidential informant. Rinaldo observed Gerace pull his vehicle in front of the Buick. The Buick then pulled over to the curb at 792 Genesee Street. Gerace's vehicle was in front of the Buick, and a vehicle driven by Investigator Johnson stopped alongside the Buick. Rinaldo observed the officers leave their vehicles and approach the Buick (Tr. 67-69)
2. The Testimony of Investigator Johnson.
Investigator Johnson testified that on March 20, 1996, he was maintaining surveillance of the Meyers Street area from his vehicle positioned on Best Street. At approximately 4:40 p.m., Johnson observed the Buick pull out of the driveway onto Meyers Street and proceed south toward Genesee Street. Johnson followed the vehicle as it proceeded down Meyers Street and turned right onto Genesee. As he was following the Buick, Johnson received the information transmitted by Agent Gerace that the driver matched the description received from the confidential informant. Johnson observed the Buick pull over to the curb in front of a fish market at 792 Genesee Street. Johnson pulled his vehicle alongside the Buick. He observed defendant in the driver's seat, and a woman in the passenger's seat (Tr. 8-11).
Johnson testified that he exited his vehicle with his weapon drawn and approached the Buick. He yelled to defendant to raise his hands and exit the vehicle. Defendant raised his left hand, but did not raise his right hand. He turned his back toward Johnson and slumped down. Johnson opened the car door, grabbed defendant's left arm and attempted to pull him out of the vehicle, but defendant resisted him. He told defendant to raise his right arm, but again defendant did not comply. Johnson holstered his weapon and with both hands pulled defendant out of the Buick "facedown onto the roadway" (Tr. 10-15).
Johnson testified that once defendant was placed on the ground, Agent Gerace grabbed defendant's right arm and pulled it out from under his stomach. Gerace then yelled "gun" several times loudly. The officers handcuffed defendant behind his back, and Gerace removed a loaded Taurus nine-millimeter semiautomatic pistol from the front of defendant's pants. Johnson then stood defendant up against the back of the Buick and frisked him. Johnson found four clear plastic bags containing what he identified as crack cocaine in defendant's left breast shirt pocket. Defendant was then placed under arrest (Tr. 15-19).
On March 20, 1996, following defendant's arrest, a search warrant was obtained for the Buick and the Meyers Street residence. Upon execution of the warrants, agents found a black knapsack in the rear seat of the Buick containing quantities of a white substance that field-tested positive for cocaine. Also found inside the knapsack were a small quantity of marijuana and an electronic digital scale (see Item 1). The search of the Meyers Street residence revealed a quantity of rubber gloves, two 9-millimeter bullets, a box of plastic sandwich bags, a sifter and miscellaneous paper work (see Item 14).
On March 22, 1996, an additional search warrant was obtained for a safe recovered from the residence of an associate of defendant. Inside the safe was found a 9-millimeter pistol, a 25-caliber pistol, boxes of ammunition, and $ 25,026 in U.S. currency (see Item 14).
Defendant moves to suppress all of this evidence. Both parties agree that once the gun was found, defendant was properly arrested and the discovery of the crack cocaine in defendant's pocket was valid as a search incident to the arrest. The suppression motion turns, therefore, on whether the encounter on Genesee Street was an "investigatory stop" requiring reasonable suspicion, or an "arrest" requiring probable cause, to justify the warrantless search and seizure.
According to defendant, he was under arrest as soon as the agents approached him on Genesee Street, and the agents lacked probable cause for the arrest. Defendant therefore argues that all of the evidence obtained as a result of the arrest and the search warrants should be suppressed as "fruits" of the unjustified seizure and search of his person.
The government argues that the initial stop of the defendant and the frisk conducted by Johnson and Gerace were part of an investigatory stop based on reasonable suspicion of criminal activity. In the alternative, the government argues that the agents had probable cause to stop and seize the defendant.
1. Investigatory Stop vs. De Facto Arrest
The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . .." Generally, an individual is considered to have been "seized" within the meaning of the Fourth Amendment "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). As the Supreme Court stated in Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991):
We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, the court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.
501 U.S. at 439.
As the Second Circuit has recognized, there are two categories of "seizures" of the person implicating the protection of the Fourth Amendment. Posr v. Doherty, 944 F.2d 91, 98 (2d Cir. 1991); United States v. Hooper, 935 F.2d 484, 490 (2d Cir.), cert. denied, 502 U.S. 1015, 116 L. Ed. 2d 754, 112 S. Ct. 663 (1991). The first category, an "investigative detention" or "Terry stop," see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), employs "the least intrusive means available to verify or dispel the officer's suspicion in a short period of time." Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983). A Terry investigative stop must be based on "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, 392 U.S. at 30); quoted in United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992).
The second category of "seizure" is an arrest, which must be supported by probable cause that a crime has been or is being committed. United States v. Hooper, supra, 935 F.2d at 490. Probable cause to arrest 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 arrested. Brinegar v. United States, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949); United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990). Once a lawful arrest is made, the arresting officer does not need a warrant in order to search the person arrested for weapons or for evidence of the suspected crime. United States v. Robinson, 414 U.S. 218, 225-26, 38 L. Ed. 2d 427, 94 S. Ct. 467 (1973); Chimel v. California, 395 U.S. 752, 762-63, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969).
There are no "bright line" rules for determining whether an encounter with police officers is an arrest requiring probable cause, or an investigatory detention supportable by less than probable cause. Posr v. Doherty, supra, 944 F.2d at 98; see also United States v. Alexander, 907 F.2d 269, 272 (2d Cir. 1990), cert. denied, 498 U.S. 1095, 112 L. Ed. 2d 1067, 111 S. Ct. 983 (1991). Thus, "an encounter that began as a permissible Terry stop may have ripened into an arrest, which must be supported by probable cause, if, for example, the officers unreasonably used means of detention that were more intrusive than necessary." United States v. Perea, 986 F.2d 633, 644 (2d Cir. 1993). "If the totality of the circumstances indicates that an encounter has become too intrusive to be classified as an investigative detention, the encounter is a full-scale arrest, and the government must establish that the arrest is supported by probable cause." United States v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir. 1989), quoted in Posr v. Doherty, supra, 944 F.2d at 98. Stated another way, there are . . . occasions when law enforcement officers do exceed the bounds of permissible safeguards and thereby convert an otherwise legitimate investigative stop into a de facto arrest requiring probable cause." United States v. Alexander, supra; see also United States v. Ceballos, 654 F.2d 177, 182 (2d Cir. 1981)(seizure may be so intrusive as to be tantamount to an arrest).
In assessing whether the encounter with police was a Terry stop supported by reasonable suspicion, or a de facto arrest supported by probable cause, the court should consider the totality of the circumstances, including the following factors:
The amount of force used by police, the need for such force, and the extent to which the individual's freedom of movement was restrained, and in particular such factors as the number of agents involved, whether the target of the stop was suspected of being armed, and the physical treatment of the suspect, including whether or not handcuffs were used . . . .