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United States District Court, E.D. New York

February 24, 2004.

UNITED STATES OF AMERICA, Plaintiff; -against- EARL McPHATTER, Defendant

The opinion of the court was delivered by: FREDERIC BLOCK, District Judge


Earl McPhatter ("McPhatter") is charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). A hearing on the defense's motion to suppress the gun seized*fn1 from McPhatter was held on January 6, 2004. The following constitutes the Court's findings of fact and conclusions of law.


  1. The only witness to testify at the suppression hearing was Officer Kenneth Anderson ("Officer Anderson") of the New York City Police Department. The Court credits his testimony.

  2. Officer Anderson, who is assigned to the 75th Precinct in Brooklyn, works in plainclothes as a member of the anti — crime unit. Part of the anti — crime unit's responsibilities is to make arrests for so — called "quality of life" offenses. Trial Transcript ("Tr.")at25.

  3. Officer Anderson and his partner, Officer Bier, were on routine patrol at around 1 a.m. on May 31, 2003, in the vicinity of Pitkin Avenue and Milford Street in Brooklyn, a "high crime" area. Tr. at 32.

  4. Officer Anderson observed McPhatter walking on the sidewalk holding a paper bag from which the top of a green glass bottle was visible. Tr. at 12. Although he could not see the label or the contents of the bottle, based on the color of the glass Officer Anderson believed that the bottle was a Heineken beer bottle. Id. Officer Anderson was highly familiar with the appearance of various brands of beer, having previously worked stocking shelves in a supermarket. Id.

  5. Because possession of an open container of alcohol in public is a violation of New York City Administrative Code § 10-125(b), Officer Anderson pulled his vehicle alongside McPhatter in order to ascertain whether the bottle was open or closed; and, if open, whether it contained alcohol. Tr. at 15.

  6. Officer Bier identified himself as a police officer and asked McPhatter to come over to the car and show identification. Tr. at 15. McPhatter continued walking Page 3 without responding to the request. Tr. at 16.

  7. Officer Anderson then exited the vehicle and approached McPhatter. Tr. at 17. As he came closer, Officer Anderson observed that the bottle McPhatter was holding was open. Tr. at 17. He again asked McPhatter for identification and also asked if he was drinking beer. Tr. at 17.

  8. Rather than respond, McPhatter dropped the bottle and reached to the hip area of his waistband, at which point Officer Anderson saw an object at McPhatter's waist which appeared to be the handle of a gun. Tr. at 17-18. After a struggle, McPhatter was subdued and arrested, and a gun was taken from his person. Tr. at 19-20.


  Once a defendant has established & prima facie case of a Fourth Amendment violation, i.e., that he was subjected to a warrantless arrest or seizure, the burden shifts to the Government to justify the arrest or seizure by a preponderance of the evidence. See United States v. Matlock, 415 U.S. 164 (1974). The sole issue before the Court is whether the Government has established that the investigatory stop satisfied the standard put forward in Terry v. Ohio, 392 U.S. 1 (1968) and its progeny; that is, whether Officer Anderson's seizure of McPhatter was based on "a reasonable suspicion supported by articulable facts that criminal activity may be afoot." Id, at 30.

  The officer was entitled to approach and question McPhatter regardless of whether reasonable grounds existed for a Terry stop. See United States v. Mendenhall, 446 U.S. 544, 554 (1980) ("As long as the person to whom questions are put [by law enforcement] remains free to disregard the questions and walk away, there has been no Page 4 intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification."). The test for when an encounter with the police becomes a Terry stop is "whether a reasonable person would have felt free to decline the officers' requests or otherwise terminate the encounter." United States v. Thompson, 941 F.2d 66,69 (2d Cir. 1991). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Terry, 329 U.S. at 19. The Court concludes that the police actions here constituted a Terry stop once Officer Anderson had left his vehicle, approached McPhatter, and asked him again for identification, and also whether he was drinking beer.

  The Court must then determine whether Officer Anderson was acting on a reasonable suspicion of criminal activity at the time of the Terry stop. See United States v. Brignoni — Price, 422 U.S. 873, 884 (1975) (defining reasonable suspicion as when law enforcement officers are "aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion").

  Although Officer Anderson could not know with certainty that the bottle contained alcohol, the Court concludes that, in light of all the circumstances, including 1) the time of night, 2) that McPhatter was in a high — crime neighborhood, see Illinois v. Wardlow, 528 U.S. 119,124-26 (law enforcement officers can take into account relevant characteristics of a location, such as whether it is a high crime area, in determining whether a Terry stop is warranted), 3) that the officer believed he recognized the specific brand of beer bottle, and 4) that McPhatter was keeping the label and contents of the open bottle Page 5 covered by a paper bag, the officer had a reasonable suspicion that McPhatter was violating § 10-125(b) of the New York City Administrative Code, and was therefore subject to arrest. See People v. Bothwell, 690 N.Y.S.2d 231, 232 (1st Dep't 1999) (police officer can make an arrest for violation of § 10-125(b)). Given that the Terry stop was justified, the Court concludes that McPhatter's subsequent conduct in reaching for a gun gave the officers ample probable cause for the subsequent arrest.

  The motion to suppress is therefore denied.


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