The opinion of the court was delivered by: John F. Keenan, United States District Judge
Defendant Mohammad Shadid Ullah moves to suppress (1) physical evidence seized from his mailbag; and (2) statements made by Ullah to New Jersey postal inspectors in New Jersey. He is charged with a violation of 18 U.S.C. § 1341, mail fraud, in connection with an alleged scheme to defraud the Department of State Visa Program.
The following facts were established at the hearing held on November 18, 2002 and February 4, 2003:
On October 24, 2001, Rafael Guzman ("Guzman"), a civilian who lived in the neighborhood, saw a man wearing a postal uniform in the vicinity of the Port Authority Bus Terminal at 178-179 Streets in Manhattan. (Tr. 137-140).*fn1 When Guzman first saw the man, there were "a lot of people behind him," and the women were shouting "grab him, grab him" and "he keeps throwing something into all of the mailboxes." (Tr. 141, 148). Guzman joined the people who were following the man and saw the man throw something into a mailbox on 178th Street, "right in front of St. Bucca restaurant." (Tr. 142). This man, the defendant, was "like frightened" and "in a hurry." (Tr. 149).
Guzman followed the defendant and saw a police officer nearby. He told the officer to "come on." (Tr. 142).
Officer Michael Rosen ("Rosen") of the Port Authority Police was working inside the police station located in the Port Authority Bus Terminal at Fort Washington Avenue and 178th Street on October 24, 2001 at approximately 11:30 A.M., when he heard several people yelling and all talking at once. (Tr. 8-9). One of them came forward and stated that they had been riding on a bus with a man dressed as a mail carrier and had seen the man acting strangely by hiding his face and avoiding eye contact with other passengers. (Tr. 9-10). The man was identified by Rosen as Mohammad Shadid Ullah, the defendant. (Tr. 8).
Rosen learned that the passengers followed the defendant when he got off the bus and they watched him as he walked along the sidewalk. (Tr. 10). The people followed Ullah as he went to at least two different mailboxes, removed letters from his mailbag and "dump[ed]" them into different mailboxes. (Tr. 10-11). When defendant saw that he was being followed, he began to walk faster, kept looking over his shoulder, and seemed nervous. (Tr. 10).
Officer Rosen was aware of several anthrax-related incidents involving the U.S. Mail in the period before October 24, 2001. (Tr. 7). On September 18, 2001, anthrax-tainted letters, post marked in Trenton, New Jersey, were sent to Tom Brokaw at NBC News and to New York Post offices in New York, and these incidents were widely reported in the media. (Tr. 3-4). On October 9, 2001, letters with anthrax were sent to U.S. Senators. These letters were also post marked in Trenton, New Jersey. (Tr. 5). In the weeks before Rosen's encounter with Ullah, four postal workers at the Brentwood postal facilities by Washington, D.C., had been hospitalized with inhalation anthrax, and two of them died as a result of the exposure. (Tr. 5). Officer Rosen had discussions concerning the anthrax scare at roll call. (Tr. 7).
Rosen followed the civilians as they went through the Fort Washington Avenue exit doors to where Ullah was standing. (Tr. 11). As he left the building, Officer Rosen saw Ullah standing in front of the mailbox located by the Fort Washington doors of the bus terminal. (Tr. 11; GX 1). Ullah, with his back to Rosen as Rosen approached, was dropping something into the mailbox. (Tr. 11, 17-18).
Officer Rosen, in uniform, approached the mailbox. When the defendant looked over his shoulder and saw Rosen coming, he began to back up and "back-pedal away." According to Rosen, the defendant looked as if he were trying to "find an escape route," and appeared afraid and shocked, with a "deer-in-a-headlight" look in his eyes. (Tr. 18, 19).
Officer Rosen asked the defendant what he was doing. The defendant did not answer, and instead, "his eyes looked everywhere but at [Rosen]." (Tr. 19, 20). A witness called by Ullah, Juan Sanchez, corroborated the Rosen testimony and saw the defendant "trying to back away from [the officer]." (Tr. 160).
Rafael Guzman also saw Rosen approach the defendant and saw defendant "right there putting letters into a mailbox." (Tr. 142). According to Guzman, when the police officer approached him, the mailman began to wave both hands in the air in front of his face. (Tr. 147).
Although the defendant was dressed as a mail carrier, his appearance was disheveled; his shirt was pulled out, dirty, and ragged. Defendant's mailbag was dirty and torn. (Tr. 19).
After Rosen asked Ullah what he was doing, Ullah turned his back and started to walk away and the officer grabbed him by the arm. Ullah was uncooperative and struggled to get out of Rosen's grasp. Officer Rosen then placed the defendant up against the wall of the Port Authority Bus Station and handcuffed him. (Tr. 20, 21). There is no suggestion in Rosen's testimony that defendant gave Rosen his identification at this point as defendant claims. (Tr. 174). Rosen was not asked questions about this on cross-examination. I conclude this did not happen. Approximately "five seconds" passed from the moment Rosen first saw the defendant to the point at which he was handcuffed. (Tr. 21).
Rosen went into the Port Authority Police Station with defendant. Rosen held Ullah's arm in one hand and the mailbag in the other. (Tr. 22). Rosen believed that Ullah's mailbag contained anthrax, and that he and others had been exposed. (Tr. 22-24, 56, 59). ...