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U.S. v. COLON

September 6, 2000

UNITED STATES OF AMERICA
V.
WILLIAM COLON DEFENDANT.



The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.

MEMORANDUM OPINION

The Court previously denied defendant's motion to suppress physical evidence and a custodial statement made following his arrest. It now issues this opinion, as the motion raises two significant issues.

Facts

Defendant was arrested in an after-hours club in the Bronx, as a result of an "anonymous" tip to a 911 operator. On February 6, 2000, shortly after six a.m., a woman called 911 and told the operator that she was in her car outside an after-hours club and that there was a man inside the club who had hit her in the head with a gun. She described him as a white Hispanic wearing a red baseball cap and a red leather jacket who answered to the nickname "White Boy."*fn1 When asked if she wished to leave her name and number, the caller responded as follows:

"I don't care because he already hit me one time and Officer Alejandro has my report on him. You know? And, but I just don't want him to know that I was the one that called."*fn2

Later, when asked whether she would be there when the police arrived, the caller responded that she was not going to be there because she didn't want White Boy to see her. She said he was a drug dealer and she didn't want to "get killed."*fn3 The caller repeated that White Boy had hit her in the face approximately three weeks earlier, causing her to need 15 stitches, and that the cops knew about the incident so "I don't have to give you my name. They know who I would be. You understand?"*fn4 She went on to say:

If I leave you my name, and they start saying my name over there. I don't wanna' be, you know, I don't want no problems because I have three children and I don't want to take no kind of risk."*fn5

She continued,

"You understand? It could be like they were just busting the place and he just happen to have a gun and they're busting him for that. You understand?"*fn6

The call ended moments later.

At that point, the operator made an entry in the computer system to transmit the relevant information to a New York Police Department ("NYPD") dispatcher, describing the incident as a code "10-10," which indicates a crime in progress.*fn7 The operator conveyed the physical description and location of the subject, indicated that he possessed a firearm, and included a Sprint Spectrum cell phone number that the 911 system identified as the number from which the caller placed the call.*fn8

The dispatcher then went on the air and called for a patrol car to respond to the after-hours club. The radio transmission from the dispatcher to the patrol unit indicated that it was a "man with a gun case," gave the suspect's description and location, and told the patrol that it was an anonymous tip with no "call-back" at that time.*fn9 Moments later, the dispatcher reported that the call-back was a cell phone.*fn10 In due course, the police entered the after-hours club, identified the defendant, patted him down, and discovered a Bryco 9-millimeter semi-automatic pistol at the small of his back, inside his waistband.Defendant was arrested and later gave a videotaped confession in which he admitted that he had possessed the 9-millimeter semi-automatic pistol.

Discussion

Reasonable ...


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