looking in the direction of the Red Nissan, which was surrounded by orange crime scene tape, Abdala and Gonzalez quickly exited the lot (without retrieving their car), and entered a nearby deli. Tr. at 155-57.
After Abdala and Gonzalez exited the deli carrying sodas, they got back into the Brown Mazda, turned on the lights, and started the engine. Tr. at 158. At that point, Agents Cronin and Kelly approached the car, and asked Abdala and Gonzalez to exit the vehicle. Tr. 158-59. After the men got out of the car, Agent Cronin asked Abdala if he had any identification, and he produced two Florida drivers licenses. Tr. at 160. Cronin next placed Abdala's hands on the hood of the car and frisked him. Tr. at 161. Neither Abdala nor Gonzalez were handcuffed. Tr. at 161-62. Agent Erwin then questioned both men in Spanish. Tr. at 162. Erwin asked if they had a parking ticket, and they responded no. Tr. at 163, 166, 187. He asked them if they had been to the adjacent lot earlier that evening; they answered that they had not. Tr. at 166, 187. Erwin asked what they were doing in the area. Id. They responded that they had dropped off a girlfriend and were going to a club on the Avenue of the Americas. Id. Erwin then asked where this club was; they did not know the club's name or location. Id. Erwin asked if they had been inside the deli, and they answered that they had not been. Tr. at 167, 188. But when Erwin questioned the men about where they had obtained their sodas, they admitted that they had, in fact, been inside the deli, where they purchased the sodas. Tr. at 167-68, 188. Neither Abdala nor Gonzalez were provided Miranda warnings before or during this pre-arrest questioning.
While Erwin questioned Abdala and Gonzalez, Detective Cronin entered the deli and found several ripped up pieces of a parking ticket on the floor. Tr. at 168-69. The ticket pieces appeared to match the ticket taken from the windshield of the Red Nissan. Tr. at 169-70. Agent Cronin then returned with Detective Cronin to search the deli and found more pieces of a ripped-up parking ticket behind a soda case. Tr. at 170-71. When assembled, the pieces formed a complete ticket, except for one missing piece. Tr. at 171. The numbers on the assembled ticket matched the numbers of the ticket from the window of the Red Nissan. Tr. at 171-72. The ticket reflected that the car had been parked at 5:55 p.m. on August 6, 1997, approximately five minutes after the shooting occurred. Tr. at 172. After assembling the ticket, Agents Cronin and Kelly arrested Abdala and Gonzalez. Tr. at 173.
2. Conclusions of Law
Based on all of these circumstances--the observations of the Red Nissan and its passengers, the Defendants' behavior in seeking to retrieve the car from the lot, and their subsequent false statements to the agents--the agents undoubtedly had probable cause for Abdala's arrest. Accordingly, Abdala's motion to suppress physical evidence recovered incident to his arrest is denied.
II. Abdala's Motion to Suppress Statements Made Before His Arrest
Abdala moves to suppress the statements made prior to his arrest, alleging that the arresting agents improperly failed to advise him of his Miranda warnings before interrogating him. The questioning at issue is that of Agents Cronin, Kelly, and Erwin, asking (1) Abdala and Gonzalez for identification, (2) whether they had a parking ticket, (3) whether they had been in the parking lot, (4) whether they had been inside the deli, (5) where they had come from, and (6) where they were going. This questioning occurred before the agents had found all of the pieces of the ripped up parking ticket.
The agents' well-founded belief that the Red Nissan had been involved in the shooting at McDonald's, along with Cronin's observation of Abdala and Gonzalez's entry into the 33rd Street parking lot with a parking ticket in hand, and their rapid departure from the lot, were sufficient to make the agents reasonably suspicious that Abdala was connected with the assault at the McDonald's parking lot.
In light of the seriousness of the suspected criminal activity, the public location of the questioning, and the otherwise imminent departure of Abdala and Gonzalez, the agents' limited investigatory questioning of the suspects concerning their identities and itineraries fell clearly within the parameters of a valid Terry stop. See Terry v. Ohio, 392 U.S. 1, 27, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968) (brief questioning during investigatory stop permitted to establish identity and dispel reasonable suspicion of imminent criminal activity); United States v. Dawdy, 46 F.3d 1427, 1429-30 (8th Cir. 1995) (stop reasonable when officer requested identification and explanation for driver's presence in otherwise deserted parking lot; continued detention reasonable to run warrant check when driver's answers conflicting); United States v. Abokhai, 829 F.2d 666, 670 (8th Cir. 1987) (brief questioning during investigatory detention permissible when police requested identification and explanation of defendants' presence); United States v. Pelusio, 725 F.2d 161, 165 (2d Cir. 1983) (in determining permissible scope of Terry stop, court may consider, inter alia, nature of crime under investigation and location of stop); United States v. Ramirez-Cifuentes, 682 F.2d 337, 343 (2d Cir. 1982) (in determining permissible scope of Terry stop, court may consider seriousness of crime, imminence of suspect's departure, and location of stop).
Moreover, the brief detention of Abdala while agents searched the deli was not excessive, as the agents were diligently pursuing a means of investigation that was likely to confirm or dispel their suspicions quickly. See United States v. Sharpe, 470 U.S. 675, 686-87, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985) (Terry stop reasonable were police detained defendant for 30 to 40 minutes while officer pursued van that had appeared to travel in tandem with defendant's vehicle). Accordingly, the agents' limited questioning and detention of Abdala was justified as part of a valid Terry stop. Abdala's motion to suppress his pre-arrest statements is denied.
IV. Bernal-Diaz's Challenge to the Probable Cause for His Arrest
Prior to the arrest of Bernal-Diaz, Agent Polos had observed Bernal-Diaz meet with other Hispanic males, including Gomez, outside of the McDonald's parking lot, and observed this group (including Bernal-Diaz) converge on the undercover officers, as Gomez brandished a firearm. Tr. at 70-73, 77. After shots were fired, Detective Perez observed Bernal-Diaz chasing the Black Nissan, which had been identified as associated with persons believed to be involved with the assault. Tr. at 122-23, 125. After catching sight of Detective Perez, who had his detective's shield displayed over his bulletproof vest, Bernal-Diaz changed directions and began running away from Perez. Tr. at 123-25. Bernal-Diaz continued to flee even after Perez identified himself as a policeman and directed him to stop. Tr. at 124-25. Taken together, these observations give rise to probable cause for Bernal-Diaz's arrest. Therefore, Bernal-Diaz's motion to suppress the evidence recovered from him incident to his arrest is denied.
For the aforementioned reasons, Abdala's and Bernal-Diaz's motions to suppress evidence recovered incident to their arrest and Abdala's motion to suppress his pre-arrest statements are denied.
Shira A. Scheindlin
Dated: New York, New York
January 15, 1998
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