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UNITED STATES v. LITTLE

November 1, 1996

UNITED STATES OF AMERICA, against WILLIAM LITTLE, a/k/a "Melvin Gibson," Defendant.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Defendant, William Little, a/k/a Melvin Gibson, is charged in a one count indictment with possession of a firearm by a prior felon in violation of 18 U.S.C. § 922(g). Defendant moves to suppress evidence seized from him and from the car he was driving on the night of his arrest and to suppress his post-arrest statement made later that night. A suppression hearing was held on October 8 and 9, 1996. Based on the evidence presented at the hearing, defendant's motion to suppress is denied.

 I. Facts

 A. The Government's Version

 The Government presented the testimony of three New York City police officers who were on patrol on the night of July 17, 1996. Each of the officers was assigned to the Anti-Crime Unit of the 44th Precinct in the Bronx. Two of the officers testified that they saw a red Neon run a red light at Jerome Avenue and 172nd Street. As a result, the officers pulled the car over. The defendant was the driver of the vehicle, which also had two passengers. Officer Louis Cruz testified that he approached the driver's side of the car. Because the window was open he noticed "[a] strong smell of marijuana from the car." Hearing Transcript ("Tr.") of 10/8 at 11. Officer Kevin Maas approached the passenger side of the car, whose window was also open. Officer Maas testified that he also smelled marijuana. Tr. of 10/9 at 32. Maas further testified that the men in the car seemed nervous and agitated. Id.

 Officer Cruz testified that the defendant admitted that they had been smoking marijuana in the car. Tr. of 10/8 at 54-56. Officer Cruz then asked defendant for his driver's license and was handed a learner's permit for a C.S. Garrett. Id. at 12-13 and Gov't Ex. 1. The picture on the permit was not that of the defendant. The defendant explained that the permit belonged to the person who had rented the car and that he (the defendant) did not have a driver's license. Id. at 13, 48-50. Cruz then asked the men to step out of the car. Id.

 The third officer, Sergeant Kevin Leddy then frisked the defendant. Leddy testified that he was looking for a weapon because he had smelled the marijuana and because defendant had presented false identification. Id. at 68-69. During the frisk, Sergeant Leddy felt bullets in the defendant's right front shorts pocket. Id. at 70-71. He then removed a plastic bag with bullets from defendant's pocket. Cruz then asked the defendant if there was a gun in the car. The defendant said he "didn't know." Id. at 17. Cruz then searched the car. He eventually found a .38 caliber gun located in a brown paper bag hidden below the spare tire compartment in the trunk of the car. Id. at 18-19. Officer Maas found a rental agreement that showed that the car was rented by "Garret Christopher" (id. at 34-35) and that the agreement provided that "No Other Driver [Was] Permitted." GX 5.

 The three men were then arrested and taken to the precinct where Officer Cruz advised the defendant of his Miranda rights. Id. at 20-21. The defendant, using the initials "MG," initialed the advice-of-rights form. GX 3. He then wrote a statement that said that his two passengers did not know that the gun was in the car and that he bought the gun for $ 200. He signed the statement "Melvin Gibson." GX 4.

 B. The Defendant's Version

 The defendant submitted a sworn affirmation and testified at the suppression hearing. He denied that he ran a red light (or committed any other traffic violation), stating that because he knew he had a gun in the car and had spotted the police, he drove very carefully. Tr. of 10/9 at 58-59. He admitted that after the stop he gave Officer Cruz Christopher Garret's learner's permit and the car rental contract. He further admitted that he did not have a valid driver's license. Finally, he also admitted that one of the passengers told the police that they had been smoking marijuana in the car. Id. at 64-66.

 At this point, defendant's testimony conflicts sharply with that of the police officers. Little testified that there were two pat downs. During the first, defendant was asked if he had anything in his pocket. He admitted that he had a beeper, but nothing more. The officers then searched the car. On the second pat down, the officer reached into his pocket, removed the beeper, and found bullets clipped on the back of the beeper. Defendant testified that the officer could not have felt the bullets in his pocket as they were flush with the back of the beeper.

 After the seizure of the bullets, the defendant's testimony again converges with that of the officers. He admits that a gun was found in the trunk of the car. Id. at 75-76. He admits that he was read his rights at the precinct, albeit two to three hours after his arrest (id. at 77-78), but did not testify that anyone questioned him prior to advising him of his rights. Little admits that he initialed the advice of rights form and gave a statement which he signed with the name "Melvin Gibson." Finally, Little states that he never gave the officers permission to ...


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