OPINION AND ORDER
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.
A. 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.
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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.
C. The Stop
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 has standing to challenge the stop, his motion is denied.
II. THE JUNE 3, 1992 AUTOMOBILE SEARCH INVOLVING PEDRO NARVAEZ
At the suppression hearing, Officer Jean-Michael Akey testified for the Government regarding the events surrounding the June 3, 1992 automobile search that is the subject of Narvaez's motion. The Court makes the following findings of fact.
A. Findings of Fact
On June 3, 1992, Officer Jean-Michael Akey was on patrol with his partner, Officer Thomas Kelly. Tr. at 5. At 2:09 a.m., they received a radio alert regarding three Hispanic males with guns in the vicinity of East 194th Street and Decatur Avenue in the Bronx, New York. Id. The officers responded to that location within minutes and obtained a similar report from a witness named Jose Rivera, who stated that three Hispanic males driving a burgundy minivan had pointed a gun at him. Id. at 5-6, 12, 16-17. The officers then departed in search of the suspects. Id. at 6. Shortly thereafter, they received a radio report from another police unit advising them that a burgundy minivan had been spotted parked on or about the next block, at Marion Avenue and East 195th Street. Id. at 6, 41. They responded to that location and observed a minivan parked in front of 2665 Marion Avenue with the engine running. Id. at 6. There were two people in the van, Pedro Narvaez, an Hispanic male, and Marilyn Torres, an Hispanic female. Id. at 7, 19. Narvaez, the driver, was in lawful possession of the van. Narvaez Aff. P 9.
Officer Akey parked his police cruiser in the street ahead of the minivan in a position which prevented it from pulling around his vehicle. Tr. at 20-21. Two or more additional police units arrived at or about the same time as officers Akey and Kelly. Id. at 22. Officer Akey and his partner approached the van with their guns drawn. Id. at 6-7, 21. As Officer Akey approached Narvaez, another officer called out that there was a gun in the back of the van. Id. at 7-8.
Officer Akey ordered Narvaez out of the vehicle, frisked him and proceeded to handcuff him. Id. at 8. Officer Akey then walked around to the back of the van and saw a gun sitting on top of a large speaker in the rear of the van. Id. at 8-9. He entered the van through the sliding side door of the van and recovered a 9-millimeter handgun. Id. at 9, 34-35. No other officer entered the van before Officer Akey. Id. at 41. After returning to the station, the officers searched Narvaez and recovered a 9-millimeter round of ammunition from his pants' pocket. Id. at 10.
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Narvaez argues that the officers' initial approach of his van was illegal because it was not based on reasonable suspicion that criminal activity was afoot. He also argues that the ensuing warrantless search was illegal because the Government has failed to establish that the search was within one of the exceptions to the Fourth Amendment's warrant requirement.
B. The Initial Approach
The Court's analysis begins with the preliminary issue of whether the police officers' initial approach of the parked van constituted a seizure within the meaning of the Fourth Amendment. A seizure has occurred when, under the circumstances surrounding the police-citizen encounter, a reasonable person would have believed that he was not free to terminate the encounter. See Florida v. Bostick, 501 U.S. 429, 439, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991); United States v. Peterson, 100 F.3d 7, 1996 U.S. App. LEXIS 29160, 1996 WL 635168, at *3 (2d Cir. 1996) (quoting Gardiner v. Incorporated Village of Endicott, 50 F.3d 151, 155 (2d Cir. 1995)); United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992); United States v. Springer, 946 F.2d 1012, 1016 (2d Cir. 1991). In determining whether a seizure has occurred, a court should consider all of the circumstances surrounding the encounter, including the threatening presence of several police officers and the display of a weapon. See Glover, 957 F.2d at 1008 (quoting United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990)).
In the present case, the circumstances surrounding the initial police approach of the van would communicate to a reasonable person that he was not free to terminate the encounter. Officer Akey parked his police cruiser in front of Narvaez's van in a manner that prevented him from driving away from the area. Several police officers were present at the scene. Furthermore, Officers Akey and Kelly approached the van with their guns drawn. Based on these circumstances, the Court concludes that Narvaez was seized within the meaning of the Fourth Amendment.
Having concluded that the initial approach constituted a seizure, the Court must now decide whether the seizure was reasonable. To justify an investigative stop, an officer must point to specific articulable facts which gave rise to reasonable suspicion that the individual was engaged in criminal activity. See Terry, 392 U.S. at 21; Peterson, 100 F.3d 7, 1996 U.S. App. LEXIS 29160, 1996 WL 635168, at *3; 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). Reasonable suspicion depends upon the content of the information possessed by the officer and its degree of reliability. United States v. Bold, 19 F.3d 99, 102 (2d Cir. 1994); United States v. Walker, 7 F.3d 26, 29 (2d Cir. 1993), cert. denied, 510 U.S. 1169, 127 L. Ed. 2d 549, 114 S. Ct. 1201 (1994). In determining whether information possessed by an officer provided a sufficient basis for an investigatory stop, a court should consider the totality of the circumstances. United States v. Salazar, 945 F.2d 47, 50 (2d Cir. 1991) (citing Alabama v. White, 496 U.S. 325, 328, 110 L. Ed. 2d 301, 110 S. Ct. 2412 (1990); United States v. Sokolow, 490 U.S. 1, 7-8, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989); United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981)), cert. denied, 504 U.S. 923 (1992).
The case of United States v. Bold, is instructive. In Bold, the police responded to a radio call based on an anonymous tip that three black males, one armed with a gun, were in a four-door gray Cadillac parked in the parking lot of a White Castle restaurant at the corner of Pennsylvania and Wortman Avenues in Brooklyn, New York. The officers proceeded to the scene and observed a gray Cadillac parked in the back of the lot. One officer approached the car and his suspicion was aroused by the car's darkly tinted windows. He opened the door and observed two black men in the front seat. He then directed the occupants to step out of the car. As the passenger exited the car, money fell out from under his shirt. The officer then patted down the suspect. Another officer patted down the driver. The officers then searched the car. Inside the car, they recovered more money and a toy gun. One of the officers remembered hearing about a bank robbery earlier in the day. They radioed for a description of the bank robber. The passenger matched the description of the bank robber. Additionally, the officers learned that the robber had worn a tweed coat and carried a briefcase, two items that the officers had located during their search of the car. The defendants were subsequently indicted for bank robbery.
The district court suppressed the evidence found in the car, holding that the anonymous tip did not support a finding of reasonable suspicion. The Court of Appeals for the Second Circuit reversed, holding that, based on the tip that the suspect was armed, the officers' independent corroboration of the tipster's information, the unusual location of the car, and the inability of the officers to see into the darkly tinted car windows, the police officers had reasonable suspicion to stop the car, open the car door and order the occupants to exit the car for questioning. The Second Circuit emphasized the importance of the fact that the tip related to a man with a gun.
Where the tip concerns an individual with a gun, the totality-of-the-circumstances test for determining reasonable suspicion should include the possibility of the possession of a gun, and the government's need for a prompt investigation. "The unique dangers presented to law enforcement officers and law-abiding citizens by firearms are well chronicled." An officer who is able to corroborate other information in an anonymous tip that another person is in actual possession of a gun is faced with an "unappealing choice." He must either stop and search the individual, or wait until the individual brandishes or uses the gun.