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U.S. v. PERSON

March 7, 2001

UNITED STATES OF AMERICA, PLAINTIFF,
V.
TARRICK PERSON, DEFENDANT.



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

ORDER

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 missing here.

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.

SO ORDERED.

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.

BACKGROUND AND FACTS

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 ...


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