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
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
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, ...