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UNITED STATES v. SANTIAGO

December 31, 1996

UNITED STATES OF AMERICA
v.
JEFFREY SANTIAGO, Defendant.



The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Defendant Jeffrey Santiago ("Santiago" or "defendant") is charged with possession of a firearm and ammunition by a convicted felon and possession of a firearm with an adulterated serial number, in violation of Title 18 U.S.C. §§ 922(g) and 922(k). Defendant now moves to suppress the firearm and ammunition seized at the time of his arrest. A hearing was held on November 22, 1996. Post-hearing letter briefs were received on December 9, 1996.

 I. FACTUAL BACKGROUND

 A. Testimony at the Suppression Hearing

 Defendant was a passenger in the rear passenger-side seat of a livery cab. At approximately 10:40 p.m. on the evening of July 2, 1996, three officers of the New York City Police Department ("NYPD") stopped the livery cab in the vicinity of 159 Soundview Avenue in the Bronx in furtherance of a program known as the Mobile Taxi/Livery Robbery Task Force for the purpose of conducting a routine safety check. Two of the officers testified at the suppression hearing. The officers described both the safety program generally and the stop resulting in defendant's arrest. The defense did not offer any testimony.

 Officer James O'Connor testified that he is currently assigned to the street crime unit. He then described the taxi livery task force which was created in 1993. R-12. *fn1" The task force was created to "educate taxicab drivers on safety and decrease the robberies and homicides against taxicabs." Id. In order to achieve this goal the police perform "safety vehicle stops." R-13. Officer O'Connor then described a safety vehicle stop.

 
We usually pull our unmarked police car behind the taxicab, turn on the flashing turret light which is the red light in place on the dashboard and we have flashing headlights. Pull behind the taxicab, flash the headlights, the car usually pulls over to the right, you pull over behind the car, me and my partner exit the car, the driver walks up to the driver and passenger walked up to the passenger side, have a brief discussion with the driver, give him a safety pamphlet and tell him of some taxi--some safety tips.

 R-13-14. Later in the hearing, the same witness again described what usually occurs during the stop.

 
My partner or whoever is driving will approach the driver and the passenger approaches the passenger. The driver usually has a conversation with the cab driver, how are you doing, sir, everything okay, tonight, we are doing a safety check for your safety, issue a pamphlet and usually the [officer who is the] passenger will inspect the back seat of the cab, make sure everything is okay in the back, the passenger is okay.

 R-31 (emphasis added). Officer O'Connor testified that generally he pulled over "every occupied cab we can pull over." R-16. If more than one occupied cab drove by at once, he pulled over the nearest cab. R-17; R-43. *fn2" He also testified that earlier in the life of the program the street crime unit pulled over one in five cabs. Id. Officer O'Connor stated that the program was governed by unwritten rules. "It has been passed on. It is an unwritten rule of thumb more or less." R-18. See also R-48. He never received any written manuals or special training in taxi stops. R-45. There were no regulations governing the police in performing the stops. R-48.

 On the night of July 2, 1996, Officer O'Connor was riding in an unmarked vehicle, in plainclothes, together with Officers Miller and Morley. He was in the front passenger seat. R-28. He was unsure whether they had agreed to stop every occupied cab or one in five. See, e.g., R-28; R-43; R-51-53; R-83. The livery car in which Santiago was riding was stopped solely because it was an occupied livery cab. R-36. The officers used their turret light and rotating headlights to pull over the car. R-32. When the cab pulled over, Officer O'Connor observed "the occupant in the back seat of the car looking over his left shoulder like this several times." R-37. The officer then left his vehicle. "As I was approaching the taxicab on the passenger side, I observed the occupant reach down with his right shoulder dipping. We call it a dip. He appeared to be placing something on the floor." Id. After seeing the passenger "dip", the officer turned on his flashlight to see inside the cab. The officer was not entirely sure when he began using his flashlight. On direct examination, he testified that he used the flashlight when he was at the rear passenger window just behind the passenger. R-38. He later testified that he used the flashlight as he approached the cab, shining the light first through the rear window and then through the right rear window. R-68; R-74. In any event, he testified that he believed that the rear passenger window was down. R-41; R-73. As he looked in the cab, he "observed what appeared to be the handle of a weapon underneath between his legs, it was taken out (sic) from the seat." R-38. *fn3" He later explained that the handle was visible underneath the front passenger seat. R-77. At that point the officer asked the passenger to leave the cab. R-39. The other officer then came around from the driver's side and retrieved a gun from the floor. Defendant denied ownership of the gun and was placed under arrest. Id.

 Officer Jeff Miller also testified at the hearing. Like Officer O'Connor, Officer Miller has been a police officer five years and is currently assigned to the street crime unit. R-85. He too described a typical taxi stop safety check. "We stop the cab using the red flashing light on the dashboard or alternating headlights. We go over to the cab, we speak to the cab driver. We speak to the passenger. . . .we tell them why the cab was stopped, you know." R-86. Officer Miller testified that he stopped every occupied cab. If several go by at once, he stops the first one. R-88. Officer Miller testified that he was not given any specific guidelines to follow in terms of how many cars to stop or the pattern to use on a given night. R-99.

 On July 2, 1996, Officer Miller was originally assigned to Brooklyn. His assignment was switched to the 43rd Precinct, located in the Bronx, "because there was a taxi robbery pattern in the Soundview/Castle Hill sections of the Bronx." R-89. Officer Miller worked that night with Officers O'Connor and Morley and believed that they were stopping every occupied cab. R-90. At approximately 10:40 p.m. in a desolate area, Miller testified that he observed an occupied cab. R-91. He pulled the cab over using the rotating red light on the dashboard and the alternating head lamps. R-92. As he pulled his car over, he noticed "the passenger in the back spinning around looking, kind of nervous at me." R-93. He was able to see into the cab because his "high beams were shining into the back of the car." R-107. He then left his car, walked toward the livery cab, shining his light through the back window. It was then that he saw the passenger dip down. Id. He then walked to the driver's side door in the rear and looked in the car using his flashlight. R-94. He saw the handle of a gun at the back of the front seat on the passenger side of the vehicle. Id. He was not sure if he looked through an open window or if he opened the door in order to look inside. R-95; R-101; R-103. At that point he drew his weapon for his own protection. Id. His partner then removed the passenger and he retrieved the gun. R-95-96.

 The government introduced an English and Spanish version of "Safety Tips for the Tax Driver" the safety manual that is given to drivers. Exhs. 1A and 1B. It also introduced a police document, prepared on September 25, 1996, which is an unofficial statistical compilation of crimes against taxi drivers. Exh. 2. The chart shows that during the period 1993 through September, 1996, robberies have decreased from 3,675 (in 1993) to 1,089 (1996) and homicides have decreased from 45 to 13. Finally, the defense offered ...


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