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November 5, 1999


The opinion of the court was delivered by: Scheindlin, District Judge.


Defendant Sean Stone ("Stone" or "Defendant") is charged with knowingly possessing a firearm in violation of 18 U.S.C. § 922(g)(1), which prohibits the possession of firearms by convicted felons. Defendant moves to suppress physical evidence seized from him during a search performed by New York City police officers on June 10, 1998. Defendant asserts that he was stopped and searched without either probable cause or reasonable suspicion. A suppression hearing was held, at which two officers and the defendant testified. For the reasons set forth below, the defendant's motion is denied.

I. Findings of Fact

On the evening of June 9, 1998, and into the morning of June 10, 1998, Police Officer Paul Denver, Sergeant Brendan Keane, and Detective — then Officer — Robert Martin were patrolling the area of the intersection of East 233rd Street and Paulding Avenue, the Bronx, in an unmarked police car pursuant to their responsibilities as members of the New York City Police Department's ("NYPD") Street Crime Unit. See Transcript of Suppression Hearing held on August 27, 1999, September 16, 1999, and September 23, 1999 ("Tr."), at 3-4. Officer Denver has been a member of the NYPD for six years; Detective Martin has been with the NYPD for nine years. Id. at 3, 48.*fn1 All three officers are white. Id. at 25.

At approximately 12:25 a.m. on the morning of June 10, 1998, the officers were traveling west along 233rd Street in their unmarked car. Id. at 28-29. Officer Denver noticed the defendant, a black male, walking east along the sidewalk of East 233rd Street, towards their unmarked car. Id. at 7, 33. The defendant was approximately four car-lengths away at this point, and was visible because the sidewalk was illuminated by overhead streetlights. Id. at 7, 64. Officer Denver could see that the defendant was carrying a large paper bag in his left hand.*fn2 Id. at 9. He also testified that he noticed an object in the defendant's right, front pants pocket which was swinging back and forth as the defendant walked. Id. at 8-9. The object had room to swing in the defendant's pocket because he was wearing loose-fitting pants. Id. at 41. Officer Denver also testified that defendant touched his right pocket, apparently to adjust this object, several times as he walked down the street. Id. at 8-9.

After concluding that there was something heavy in the defendant's pocket, Officer Denver asked his partners to observe him as he walked closer to their car. Id. at 9. Detective Martin testified that when he first noticed the defendant, he was about fifty feet away from the car and did not appear to be touching his pocket or behaving suspiciously in any way. Id. at 51-52, 69. As Stone approached to within twenty-five feet of the car, however, Detective Martin testified that he too noticed a heavy object in defendant's pocket which he repeatedly adjusted with his right hand. Id. at 51-53, 70. Both Detective Martin and Officer Denver thought this noteworthy because, in their experience, people often make similar adjustments — consciously and unconsciously — when carrying weapons. Id. at 15, 79.

After driving past the defendant the officers decided to turn their car around to take another look at him. Id. at 10. As they were turning around, Stone crossed from the sidewalk into a near-by parking lot, and the officers pulled their car into the lot after him. Id. at 10-12. Officer Denver and Detective Martin testified that when the car pulled within five to seven feet of the defendant, Officer Denver said through his open window,*fn3 "How are you doing? Police," to which Stone replied, "I am just going home."*fn4 Id. at 13, 57. Then, before Officer Denver could respond, Stone ran away from the car while clutching his right, front pocket. Id. at 13, 57-58.*fn5 The officers then left their car and chased him. Id. at 75. The defendant, with the officers close behind, ran down Paulding Avenue and turned east on East 232nd Street. Id. at 16. Throughout this chase, Officer Denver claims he yelled for Stone to stop and repeatedly identified himself as a police officer. Id. at 18, 61.

Stone soon found his path blocked by a barbed-wire fence. Id. at 19. As he tried to climb over it, Officer Denver grabbed him around the waist and pulled him to the ground. Id. at 20. As he did so, Officer Denver felt a gun inside Stone's right, front pocket and yelled, "hot lunch" — a code phrase indicating to Detective Martin that Stone had a gun. Id. at 20. Officer Denver then took the weapon — a Colt .380 semi-automatic handgun — from Stone's pocket, and handed it to Detective Martin. Id. at 21. After handcuffing defendant, Officer Denver discovered, among other things, a magazine full of bullets in the defendant's left, front pants pocket. Id. at 22.

The defendant's description of these events is somewhat different. First, Stone denies reaching to adjust the contents of his pockets at any time. Id. at 105, 107. Indeed, he claims that he could not have done so because he was carrying a sandwich in his right hand and a bag in his left at the time Officer Denver and Detective Martin contend they saw him reaching for his right pocket. Id. at 122-23. And even if he had reached for his pocket, the defendant insists that neither Detective Martin nor Officer Denver could have drawn any conclusions about its contents since he was wearing a long, untucked shirt at the time of his arrest which fell below his pockets, concealing them from view. Id. at 86.*fn6 Second, Stone insists that the men in the unmarked car never identified themselves as police officers at any time during the initial verbal exchange or during the ensuing chase.*fn7 Finally, Stone claims that he started to run only after one of the men got out of the unmarked car and tried to grab him by the shoulder because he was afraid the man was trying to rob him. Id. at 83-85.*fn8 Stone agrees, however, that once he started to run, Officer Denver and Detective Martin pursued him on foot. Id. at 75.

Having reviewed the testimony and the physical evidence submitted at the hearing, I find the testimony of Officer Denver and Detective Martin to be the more credible account of the events that transpired on June 10, 1998. Stone's testimony notwithstanding, I find that the defendant knew the men in the unmarked car were police officers,*fn9 that Officer Denver identified himself as an officer when he first questioned the defendant and when he and Detective Martin pursued Stone to the fence, and that Stone fled because he knew that, as a convicted felon, he faced a substantial prison term for possession of a weapon.

Stone's credibility suffers from his status as a repeat offender. His record reveals three felony and three misdemeanor convictions. See Government's Memorandum of Law, dated October 5, 1999 ("Govt.Mem.") Ex. 12. While Stone's criminal history does not in itself preclude the possibility that he is telling the truth, it is a relevant consideration when evaluating conflicting testimony. Further, Stone admitted that on June 10, 1998, he knew that, as a convicted felon, he would be sent back to prison if he were caught carrying a handgun. See Tr. at 108. I conclude it was this knowledge, rather than the fear of being robbed, that motivated Stone to flee when Officer Denver first addressed him.

Finally, some aspects of Stone's testimony simply strain credulity. Specifically, Stone testified that he never, ever adjusted his pocket as he walked, id. at 105, 107; that he did not hear the officers get out of the car, even after testifying the car was within five feet of him when the officers stepped out from it into the lot, id. at 115; and that he first realized that Officer Denver and Detective Martin were police officers when they subdued him at the fence. Id. at 85. None of these assertions have the ring of truth.*fn10


The defendant seeks to suppress the seized handgun, claiming that the stop violated the Fourth Amendment to the United States Constitution. The Government contends that Officer Denver and Detective Martin conducted a lawful investigative stop when they seized the defendant at the fence and that this stop ...

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