The opinion of the court was delivered by: LEISURE
LEISURE, District Judge :
Julio Matias and Pedro Narvaez are charged in connection with an alleged narcotics trafficking organization. They are each charged with participating in a criminal enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(a); with conspiring to participate in a criminal enterprise in violation of RICO, 18 U.S.C. § 1962(d); with committing violent crimes in aid of racketeering in violation of 18 U.S.C. § 1959(a); with conspiring to violate the narcotics laws of the United States in violation of 21 U.S.C. § 846; and with using and carrying firearms in violation of 18 U.S.C. § 924(c).
Julio Matias moves to suppress all evidence derived from a June 3, 1992 automobile search. Pedro Narvaez moves to suppress all evidence obtained during a different automobile search that occurred on June 3, 1992 and all evidence derived from a March 31, 1994 automobile search. The Court conducted a suppression hearing on November 1, 1996. Each of the parties filed post-hearing briefs. For the reasons set forth below, the motions are denied.
I. THE JUNE 3, 1992 AUTOMOBILE STOP INVOLVING JULIO MATIAS
At the suppression hearing, Officer Richard Capria testified on behalf of the Government regarding the events surrounding the June 3, 1992 automobile stop that is the subject of Matias's motion. The Court makes the following findings of fact.
On June 3, 1992, Officer Richard Capria and Sergeant Glavey
were parked in a marked police cruiser near 896 Melrose Avenue between East 161st Street and East 163rd Street in the Bronx, New York. Tr. at 60-61.
At about 12:40 a.m., Officer Capria observed a car making a right hand turn from 163rd Street onto Melrose Avenue heading south. Id. The car was moving too quickly as it rounded the corner, and the driver lost control. Id. at 61. As a result, one of the hubcaps flew off the car; the tires made a loud screech; and the car came to a halt positioned diagonally across both lanes, with the front of the car blocking the oncoming traffic lane. Id.
Officer Capria responded by pulling the police cruiser in front of the car to block its path. Id. He then exited the cruiser with his gun drawn and approached the driver's side of the car, while Sergeant Glavey approached the passenger side of the car. Id. at 62. As Officer Capria approached the car, he observed Juan Machin seated in the driver's seat, Julio Rivera seated in the passenger seat, and the defendant, Julio Matias, seated in the rear of the car. Id. When Officer Capria asked the three occupants what they were doing, they failed to reply. Id. at 63. He then asked them whose car it was. Id. Machin responded that they had just found the car. Id. at 63-64. Officer Capria called for police backup and instructed the occupants to keep their hands in view. Id. at 64. When additional police officers arrived at the scene, the occupants were taken out of the car and handcuffed. Id. Officer Capria proceeded to search the occupants and found several live rounds of 9-millimeter ammunition in Machin's pocket. Id. at 65. After searching the individuals, he proceeded to search the car and seized additional rounds of ammunition from a case that was on the front seat. Id. The police officers then searched the trunk of the car and seized additional ammunition, a loaded 9-millimeter handgun and a loaded MAC-11 gun. Id.
Julio Matias filed the instant motion on September 20, 1996. The Government argued that Matias was not entitled to an evidentiary hearing on the motion. The Government opposed the motion on the ground that as a mere passenger, Matias lacks standing to challenge the search of the automobile. At oral argument on October 18, 1996, the Court held that Matias was entitled to an evidentiary hearing because, although he may lack standing to challenge the search, he has standing to challenge the stop of the car. Matias argues that the stop was unlawful because it was not supported by reasonable suspicion that criminal activity was afoot.
The threshold issue on a Fourth Amendment claim is whether the defendant has standing to seek the suppression of the seized evidence.
The resolution of this issue depends upon whether the defendant had a reasonable expectation of privacy in the area searched. See Rakas, 439 U.S. 128, 148-49, 58 L. Ed. 2d 387, 99 S. Ct. 421; United States v. Perea, 986 F.2d 633, 639 (2d Cir. 1993) ("In support of a motion to suppress evidence found in a warrantless search, the defendant must show that he had a reasonable expectation of privacy in the place or object searched."). In most cases, a mere passenger in a car lacks standing to challenge a search of the vehicle because he does not have a reasonable expectation of privacy in the automobile. See, e.g., Rakas, 439 U.S. at 148-49; United States v. Paulino, 850 F.2d 93, 97 (2d Cir. 1988), cert. denied, 490 U.S. 1052, 104 L. Ed. 2d 435, 109 S. Ct. 1967 (1989).
The question of standing to challenge a stop of a car presents different issues from that of standing to challenge a subsequent search. United States v. McKneely, 6 F.3d 1447, 1450 (10th Cir. 1993); cf. Rakas, 439 U.S. at 150-51 (Powell, J., concurring) (noting that the Court's decision was limited to the issue of whether the passengers had a legitimate expectation of privacy invaded by the search of the vehicle, not the stop thereof). Even if a passenger lacks standing to challenge a search, he may have standing to challenge a seizure of an automobile. See McKneely, 6 F.3d at 1450; United States v. Roberson, 6 F.3d 1088, 1091 (5th Cir. 1993), cert. denied, 510 U.S. 1204, 127 L. Ed. 2d 671, 114 S. Ct. 1322 (1994); United States v. Clark, 822 F. Supp. 990, 1004 (W.D.N.Y. 1993); see also United States v. Rusher, 966 F.2d 868, 874 n.4 (4th Cir.) (passengers lack standing to challenge search of vehicle but can challenge seizure of their own persons), cert. denied, 506 U.S. 926, 121 L. Ed. 2d 266, 113 S. Ct. 351 (1992); United States v. Portwood, 857 F.2d 1221, 1222 (8th Cir. 1988) (passenger who was searched had standing to challenge legality of stop and search), cert. denied, 490 U.S. 1069, 104 L. Ed. 2d 638, 109 S. Ct. 2073 (1989).
An automobile stop results in a seizure of the car and the passengers alike. Kimball, 25 F.3d at 5; Roberson, 6 F.3d at 1091; see United States v. Hensley, 469 U.S. 221, 226, 83 L. Ed. 2d 604, 105 S. Ct. 675 (1985) (noting that stopping car and detaining its occupants constitutes seizure under the Fourth Amendment); Berkemer v. McCarty, 468 U.S. 420, 436, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984) (noting that "a traffic stop significantly curtails the 'freedom of action' of the driver and the passengers, if any, of the detained vehicle"); Colorado v. Bannister, 449 U.S. 1, 4 n.3, 66 L. Ed. 2d 1, 101 S. Ct. 42 (1980) (per curiam) ("There can be no question that the stopping of a vehicle and the detention of its occupants constitute a 'seizure' within the meaning of the Fourth Amendment."); Delaware v. Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979) ("Stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of [the Fourth and Fourteenth Amendments], even though the purpose of the stop is limited and the resulting detention quite brief."). Therefore, a passenger has standing to challenge an automobile stop as unconstitutional. See United States v. Eylicio-Montoya, 70 F.3d 1158, 1164 (10th Cir. 1995); Kimball, 25 F.3d at 5; McKneely, 6 F.3d at 1450; Roberson, 6 F.3d at 1091; Clark, 822 F. Supp. at 1005; see also United States v. Powell, 929 F.2d 1190, 1195 (7th Cir.) (noting that several courts have concluded that passengers have standing to challenge vehicle stops), cert. denied, 502 U.S. 981, 116 L. Ed. 2d 609, 112 S. Ct. 584 (1991); United States v. Brewer, 947 F.2d 404, 411 (9th Cir. 1991) (remanding to district court to determine whether passenger has standing to challenge stop). If an initial stop of an automobile was illegal, evidence seized in a subsequent search may well be excludable as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 484-85, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); Kimball, 25 F.3d at 5-6; McKneely, 6 F.3d at 1450. Accordingly, Matias has standing, as a passenger, to challenge the stop of the automobile. Because Matias only has standing to challenge the stop of the automobile, his motion must be denied if the stop was lawful.
A traffic stop is a limited seizure within the meaning of the Fourth and Fourteenth Amendments. See Whren v. United States, 135 L. Ed. 2d 89, 116 S. Ct. 1769, 1772 (1996); United States v. Scopo, 19 F.3d 777, 781 (2d Cir.), cert. denied, 130 L. Ed. 2d 136, 115 S. Ct. 207 (1994). Therefore, a traffic stop must be reasonable. See Whren, 116 S. Ct. at 1772. In other words, it must be justified by either probable cause or reasonable suspicion, based on specific and articulable facts, that the individual was engaged in unlawful activity. See Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); Scopo, 19 F.3d at 781. "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren, 116 S. Ct. at 1772 (citing Prouse, 440 U.S. at 659; Pennsylvania v. Mimms, 434 U.S. 106, 109, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977) (per curiam)); see Scopo, 19 F.3d at 782 ("When an officer observes a traffic offense -- however minor -- he has probable cause to stop the driver of the vehicle." (quoting United States v. Cummins, 920 F.2d 498, 500 (8th Cir. 1990), cert. denied, 502 U.S. 962, 116 L. Ed. 2d 448, 112 S. Ct. 428 (1991) (internal quotation marks omitted))).
In the present case, Officer Capria observed Machin commit a traffic violation by driving recklessly.
See N.Y. Veh. & Traf. Law § 1212 (McKinney Supp. 1996). This observation gave Officer Capria probable cause to stop Machin. See Whren, 116 S. Ct. at 1772; Scopo, 19 F.3d at 782. Therefore, the automobile stop was lawful.
Because Matias only ...