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May 29, 2003


The opinion of the court was delivered by: Laura Taylor Swain, District Judge.


Defendant Charles Washington ("Defendant") is charged by a federal grand jury with two drug-related offenses. Count One if the Indictment charges that the Defendant conspired to distribute and possess with intent to distribute more than 50 grams of crack cocaine in violation of 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(A). Count Two charges the Defendant with committing the substantive narcotics defense. Defendant has filed a motion to suppress any physical evidence seized from Defendant and from a vehicle on October 1, 2002. The Court held an evidentiary hearing in this matter on April 7, 2003. At the hearing, the Government called two witnesses from the Bronx Narcotics Unit of the New York City Police Department ("NYPD"): Detective Anthony Leone ("Leone") and Detective John Kirby ("Kirby"). No other witnesses were called at the hearing. Defendant did not testify. Following the evidentiary hearing, the Court ordered the parties to submit post-hearing briefs. Upon consideration of the submissions of the parties, the evidence presented at the hearing and for the reasons set forth below, the motion to suppress is denied.


Credible, uncontradicted testimony presented at the hearing was sufficient to establish the following facts. On October 1, 2002, Detectives Leone and Michael Rosario ("Rosario") were assigned with an undercover officer to conduct "short-term buy-and-bust operations." The officers were working from 6:45 a.m. to 3:00 p.m. in the vicinity of Randall Avenue and the neighboring Soundview Projects. (Tr. 9-11). Leone testified that based on his background experience and communications with other officers, he knew the area to be drug-prone with a high level of street transactions. (Tr. 11-12; 40). Shortly before 11:50 a.m., Rosario was on foot, "ghosting" the undercover officer on the street, while Leone was "ghosting" the undercover officer from his unmarked car parked on Randall Avenue between St. Lawrence and Commonwealth. (Tr. 12). Leone spotted a Hispanic male ("Nelson Crespo"), wearing a green shirt and dark-colored pants, standing on the sidewalk in front of the grocery store on 1776 Randall Avenue. Crespo was approximately 25 feet away from where Leone was parked. (Tr. 12-13, 35). Leone saw Crespo standing in the middle of the sidewalk with "some money rolled up in his right hand." (Tr. 12). Leone had held money in his hand in a similar fashion when conducting undercover narcotics purchases. (Tr. 49). Crespo was approached by the Defendant, who Leone believed had come from the direction of St. Lawrence Avenue, and Leone witnessed a "brief conversation" between the two men. (Tr. 14-15; 39). Leone observed Defendant hand an item to Crespo in exchange for money. (Tr. 14). From where Leone was positioned, he could not see what the object was that the Defendant handed to the buyer, but noticed that the object was "smaller than a tea bag." (Tr. 15, 42). After that, Leone saw Crespo and Defendant walk off separately. (Tr. 16). Leone kept surveillance of Defendant and saw Defendant enter the passenger side of a car parked on St. Lawrence Avenue — a black Mercury Mountaineer — and then exit a short time later to return to the same location on Randall Avenue. (Tr. 17-18; 21). At that point, Leone was standing about 50 feet away from Defendant's car. (Tr. 18).

Leone advised the other officers of the suspected drug transaction and gave them a description and location for both Crespo and the Defendant. (Tr. 16-17; 57-58; 65). A little more than a block away other officers then stopped Crespo and found narcotics on his person (Tr. 58). This then led to Defendant's arrest. The police arrested Defendant and found a "large sum of money," totaling $1,191.00 in cash, on his person and automobile keys in his pants pocket. (Tr. 19-20; 58-61; 65). No drugs were found on Defendant's person. (Tr. 66). Leone concluded that, based on his observations, including the direction from which Defendant came before meeting Crespo, the transaction, Defendant's trip to the vehicle and brief entry of the vehicle, and his subsequent return to the transaction location, and based on Leone's prior experience and knowledge that vehicles can serve to store drugs, the car was likely being used as stash location. (Tr. 7; 21-22; 63). Leone directed Kirby to search the vehicle. At Leone's direction, Kirby then went on to search Defendant's vehicle — the black Mercury Mountaineer Leone had seen Defendant enter and exit. (Tr. 62-63). Kirby entered the car, using Defendant's keys, through the door on the driver's side. (Tr. 21-22; 62-63). Kirby opened the console of the automobile and found "bags of marijuana and bags of crack." (Tr. 62-63).

As previously noted, Defendant proffered no testimony at the hearing. In an affidavit filed with his initial motion papers, Defendant asserts that he was "merely engaged in an innocent conversation with another person and then returned an item to him." (Aff. of Washington, dated February 5, 2003, at para. 5.) The affidavit does not contradict any of the visual observations or other circumstances testified to by Leone and Kirby.


Probable Cause to Arrest the Defendant

Defendant argues that the Court should find the Government's evidence insufficient to support probable cause because, inter alia, no drugs were found on Defendant's person. Defendant further argues that the Court should reject the detectives' account of their observations as incredible. Having observed the witnesses and weighed carefully their testimony, the Court finds that the credible testimony established the relevant facts as outlined above. The Court therefore turns to the question of whether the facts and circumstances, as described by the Government's witnesses, are sufficient to support the conclusion that the NYPD had probable cause to arrest Defendant on October 1, 2002. "If `the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed,' probable cause to arrest exists." See United States v. McFadden, 238 F.3d 198, 204 (2d Cir. 2001), quoting United States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987). The Government bears the burden of establishing probable cause. See United States v. Elgisser, 334 F.2d 103, 110 (2d Cir. 1964). "The process does not deal with hard certainties, but with probabilities," and the evidence "must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." Texas v. Brown, 460 U.S. 730, 742 (1983) (internal quotations omitted). As a result, "it is clear that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." Illinois v. Gates, 462 U.S. 213, 235 (1983) (internal quotations omitted). The Court must look at the totality of the circumstances surrounding the arrest. See United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990). In matters involving narcotics sales, the exchange of currency is a factor in supporting probable cause. People v. Schlaich, 640 N.Y.S.2d 885, 887 (1st Dep't 1996); People v. Jones, 643 N.Y.S.2d 987, 989 (1st Dep't 1996).

Here, the Court finds that the totality of the circumstances, including Leone's training and experience, the drug prone character of the area, the observed transaction between Defendant and Crespo, and the subsequent arrest of Crespo with narcotics on his person, provides ample support for the conclusion that Defendant had likely engaged in criminal activity and, accordingly, probable cause existed to arrest the Defendant. Defendant's motion thus denied insofar as it seeks the suppression of items seized from his person in the search incident to this arrest. Search of Defendant's Vehicle Defendant argues that the NYPD had no justifiable reason to conclude that the Defendant's vehicle contained contraband. Defendant asserts that, even if the NYPD had witnessed the Defendant enter and exit his vehicle after giving an object to another person in exchange for money, the behavior did not provide probable cause to believe that the vehicle contained contraband. Where the police have a probable cause to believe that a vehicle contains contraband, they may search the vehicle without a warrant. United States v. Ross, 456 U.S. 798, 808-09 (1982). "A warrantless search of a movable vehicle is permissible when the police have probable cause to believe that the vehicle contains contraband. . . . If the probable cause extends to the entire vehicle, the agent may conduct a warrantless search `of every part of the vehicle and its contents [including all containers and packages] that may conceal the objects of the search.'" United States v. Harwood, 998 F.2d 91, 96 (2d Cir. 1993) (citations omitted).

Here, the evidence is sufficient to establish that the NYPD had probable cause, under the totality of the circumstances, to believe that Defendant's vehicle contained narcotics. See Illinois v. Gates, 462 U.S. at 230-31. Leone testified that based in his experience, vehicles could serve to store drugs and that Defendant's observed behavior — including going into the car after a financial transaction in a drug-prone area and returning to the location of the transaction — led him to conclude, based on that experience, that the Mountaineer was likely Defendant's stash location. Moreover, Crespo's arrest with narcotics on his person and Defendant's subsequent arrest which found him with a large amount of cash on his person further provided the NYPD with reason to believe that the vehicle contained contraband. Under the circumstances, the officers reasonably concluded that there was a fair probability that narcotics would be found in Defendant's vehicle and the warrantless search was justified. See Harwood, 998 F.2d at 96. Accordingly, Defendant's suppression motion is denied to the extent it seeks exclusion of items found in the vehicle.


For the foregoing reasons, the Defendant's motion to suppress evidence is ...

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