The opinion of the court was delivered by: Gershon, District Judge.
Defendant's motion to suppress evidence was referred to the
Honorable Robert M. Levy, Magistrate Judge, who, in a Report and
Recommendation dated January 17, 2001, found that the motion
should be granted. Following the government's objection to the
Report, I have reviewed the motion de novo, and heard oral
argument. I now adopt Judge Levy's Report in its entirety.
Judge Levy thoroughly analyzes the facts, which are not
disputed, and the applicable law, and he comprehensively
addresses the subtle factual issues that can make the difference
between reasonable suspicion and its absence.
I write only to emphasize the absence in this case of the
corroboration of illegality required of anonymous tips by the
Supreme Court's recent, unanimous decision in Florida v. J.L.,
529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). It is
true, as the government argues, that, in this case, unlike in
J.L., the anonymous caller indicated the basis for her
knowledge, namely, her own observations of someone in possession
of a weapon in a restaurant, and that the call was traced to a
payphone diagonally opposite the restaurant where the caller
said the weapon was being possessed, which provided some
corroboration of her ability to observe what she reported.
However, this does not take the case out of the strictures of
J.L., which held that "a tip [must] be reliable in its
assertion of illegality, not just in its tendency to identify a
determinate person." Id. at 272, 120 S.Ct. 1375. The location
of the payphone provides insufficient corroboration that the
assertion of illegality was reliable. As Judge Levy sets out,
and as is undisputed, the police did not corroborate that the
defendant was engaged in illegal conduct before they stopped him
and asked him to stand and raise his arms. They saw no
suspicious conduct of any kind or degree. Indeed, what they
observed was that he was engaged in the wholly innocuous conduct
of eating a hamburger at a counter. As the Supreme Court in
J.L. emphasized, an anonymous tip does not become reliable
just because it accurately describes the defendant and the
defendant's current location. The assertion that the defendant
is engaged in criminal activity must also be reliable. That was
I agree with the government's observation, in its most recent
submission to the court, that "Public safety necessitates that
the police immediately investigate allegations of gun possession
and take reasonable steps to protect themselves and the public."
Nonetheless, J.L. requires suppression of a gun where the
police stop a defendant based on the call of an unknown
informant, who will not be accountable for her call, and whose
assertion of illegality is not corroborated.
The motion to suppress the gun seized from the defendant and
his post-arrest statements is granted.
REPORT AND RECOMMENDATION
By order dated August 1, 2000, the Honorable Nina Gershon,
United States District Judge, referred this matter to me for a
report and recommendation on defendant's motion to suppress. For
the reasons stated below, I respectfully recommend that
defendant's motion be granted and that the handgun and
defendant's subsequent statements to law officers be suppressed.
Defendant Tarrick Person ("Person" or "defendant") brought
this motion on August 1, 2000 pursuant to Rules 12(b)(3) and 41
of the Federal Rules of Criminal Procedure, alleging that the
stop and search of his person were unreasonable and violated his
Fourth Amendment rights. Defendant seeks to suppress the seized
handgun found in his possession by officers of the New York City
Police Department ("NYPD") and any post arrest statements
pursuant to the "fruit of the poisonous tree" doctrine.
Defendant was arrested on May 19, 2000 by NYPD officers and
charged by the Kings County District Attorney with Criminal
Possession of a Weapon in the Third Degree, in violation of New
York State Penal Law § 265.02(4). (Defendant Tarrick Person's
Memorandum of Law in Support of His Pre-Trial Motions ("Dft's
Mem.") at 2). On June 12, 2000 Person was arrested pursuant to
18 U.S.C. § 922(g)(1), and charged with being a felon in
possession of a firearm that had been shipped and transported in
interstate or foreign commerce. On July 11, 2000 Person was
indicted by a Grand Jury in the Eastern District of New York for
this same charge. At a status conference held on August 1, 2000,
Judge Gershon ordered that defense motions be filed by September
29, 2000, and directed me to set any further schedule.
I held a suppression hearing on November 8, 2000, and
following the hearing I directed the parties to submit
supplemental briefs by November 15, 2000. The government
requested an extension of time and submitted its Memorandum of
Law in Opposition to Defendant Person's Motion to Suppress
("Govt's Mem.") on November 20, 2000. Defendant submitted his
reply letter on November 29, 2000.
Defendant was arrested in Billy's Restaurant on Lewis Avenue
in Brooklyn, as a result of an anonymous tip to a 911 operator.
On May 19, 2000, at approximately 2:00 p.m., a woman called 911
and told the operator that a man with a gun was in the vicinity
of Halsey Street and Lewis Avenue. She described him as a tall,
light-skinned black male, heavyset, wearing a black leather
jacket. (Transcript of Criminal Cause for Suppression Hearing,
November 8, 2000 ("Tr.") at 9.) She stated, "it's a guy in a
restaurant and he has a gun, like he's here to stick up the
restaurant." (Transcript of Criminal Cause for Telephonic
Recording Before Robert M. Levy, United States Magistrate Judge,
New York City Police Department Communications Division, Tape
Unit Job # 24070, Government's Ex. 4 ...