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U.S. v. CRUZ

April 19, 2004.

JOSE CRUZ, Defendant

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Defendant Jose Cruz ("Cruz") has filed a motion to suppress physical evidence seized from his vehicle by two New York City Police Department officers (the "NYPD Officers") during a traffic stop of Cruz's vehicle on April 24, 2003. According to Cruz, the physical evidence that is the subject of his motion was obtained after an unconstitutional search of his vehicle. The Government opposes Cruz's motion and asserts that the NYPD Officers lawfully seized the evidence. The parties appeared before the Court for a suppression hearing on February 5, 2004 to address the factual disputes raised by Cruz's motion. The Court, after having observed and considered the testimony of the parties' witnesses, having reviewed the record on this matter, including Cruz's and the Government's post-hearing papers submitted in support of and in opposition to this motion, finds the testimony of the Government's witnesses to be credible and persuasive on the factual questions raised, and thus, denies Cruz's motion. I. BACKGROUND*fn1


  On April 24, 2003, while driving in Bronx County, New York, Cruz was stopped by the NYPD Officers for apparent traffic violations. During the stop, the NYPD Officers placed Cruz under arrest after seizing a Panther Model 103 Tazer Stun Gun (the "stun gun") from inside Cruz's vehicle.*fn2 A subsequent inventory search of the vehicle yielded a ski mask, and a loaded 9mm handgun. Cruz was also found to be in possession of a handcuff key. Based on the seizure of the handgun, a federal grand jury indicted Cruz on a single count of possession of a weapon after having been convicted in any court of a crime punishable for a term of at least one year in violation of 18 U.S.C. § 922(g)(1).

  On October 31, 2003, Cruz filed a motion to suppress all the evidence seized during the traffic stop on the basis that the NYPD Officers lacked probable cause to stop his vehicle. In this motion, Cruz contends that he was not driving erratically or otherwise committing a traffic violation at the time he was stopped, and thus, any evidence seized was the result of an unlawful traffic stop.

  By letter brief dated November 14, 2003, the Government responded to Cruz's motion and argued that under well-established law, the NYPD Officers had probable cause to stop Cruz based on the excessively tinted windows of Cruz's vehicle.*fn3 Included in this submission is an affidavit of NYPD Officer Samuel Castro ("Castro"), one of the NYPD Officers involved in the traffic stop of Cruz. Castro attests that he observed Cruz driving erratically moments before stopping him and that the windows of Cruz's vehicle were excessively tinted. (See Castro Aff. at ¶ 3-5.) Thus, the Government's response established that the traffic stop of Cruz was lawful even if there were a dispute as to whether Cruz was in fact driving erratically or had failed to obey a stop sign.

  Apparently unable to overcome this legal obstacle to his motion to suppress, Cruz sought and obtained from this Court leave to supplement his motion. Cruz's supplemental submission consists of a declaration by Cruz that asserts that the stun gun recovered from his vehicle was concealed under the driver's seat out of plain view, and was therefore not lawfully seized. (See Cruz Decl. at ¶¶ 5-9.) Thus, according to Cruz, all the evidence seized must be suppressed because it was obtained from a warrantless search of his vehicle in violation of the Fourth Amendment to the United States Constitution.*fn4

  In response, the Government counters that the stun gun was in fact in plain view when it was seized by the NYPD Officers, and thus, the subsequent search and seizure of Cruz's person and vehicle were lawful. Recognizing, however, that Cruz's declaration raised a factual dispute, the Government did not oppose Cruz's request for a suppression hearing on the pending motion. On February 5, 2004, the Court held a suppression hearing where the parties proffered witnesses and introduced documentary evidence in support of their respective positions.


  At the hearing, the Government called NYPD Officer Nicholas DeLuca ("DeLuca"), who was Castro's partner on the day Cruz was pulled over. DeLuca testified that while on patrol in the Bronx on April 24, 2003, he observed Cruz's vehicle, a blue four-door Mazda MPV minivan with dark tinted windows, speeding and failing to make a complete stop at a stop sign. (See Hearing Tr. at 5:18-24; 15:7-16:15.) According to DeLuca, Cruz was instructed to shut his car off and exit the vehicle, to which he complied, although DeLuca stated that Cruz appeared nervous, exited his car quickly, and looked back toward his vehicle. (See id. at 7:13-20; 19:13-18; 20:8-20.) DeLuca further testified that when Cruz exited his vehicle, his "facial expressions didn't seem consistent with a normal traffic stop." (Id. at 20:19-20.)

  DeLuca testified that he exited his police vehicle, approached Cruz and frisked him, and brought Cruz to the rear of Cruz's vehicle (between Cruz's vehicle and the police vehicle). (See id. at 8:1-17.) According to DeLuca, Cruz was not handcuffed at this point. (See id. at 22:3-9.) DeLuca then proceeded to the driver's side of Cruz's vehicle to determine if there were any passengers. DeLuca testified that to the best of his recollection, the driver's door of Cruz's vehicle was open when he looked inside, although DeLuca recalled that the driver's window was open and the other windows, all heavily tinted, were closed at this time. (See id. at 8:19-23; 27:11-28:12; 34:25-35:13; 37:4-6.) DeLuca was not certain, however, whether the car door was open when he looked inside the vehicle. (See id. at 35:3-6.)

  When asked what he saw when he looked inside Cruz's vehicle, DeLuca responded: "I saw the butt of what could have been a weapon of some sort, a firearm. I wasn't sure what it was." (Id. at 9:2-4.) DeLuca recalled that he observed what turned out to be the butt of the stun gun on the floor of the vehicle protruding from underneath the driver's seat. (See id. at 9:5-6.) On cross-examination, DeLuca testified that he saw about an inch or more of a black rectangular-shaped plastic material, which he believed may have been a weapon. (See id. at 23:1-23.) Upon seeing a portion of what turned out to be the stun gun, DeLuca picked it up, placed it back inside the vehicle, and then informed Castro of what he had found. (See id. at 10:9-13; 11:17-24.) Cruz was then placed under arrest. (See id. 11:25-12:2.)

  DeLuca testified that upon Cruz's arrest, Cruz and his vehicle were taken to the 41st Precinct, where Cruz was processed and where both DeLuca and Castro vouchered and inventoried Cruz's vehicle. (See id. at 12:3-25.) DeLuca testified that the purpose of the inventory search is to preserve any potential evidence and to guard against any possible claims of lost property against the NYPD. (See id. at 12:17-13:18.) The inventory search of Cruz's vehicle yielded a loaded 9mm handgun and a ski mask. DeLuca testified that the vehicle was inventoried as a result of Cruz's arrest stemming from the stun gun found inside the vehicle. (See id. at 29:9-16.) The Government rested after DeLuca completed his testimony.

  As part of his defense case, Cruz first called Melinda Harris ("Harris"), his common-law wife, to rebut some of DeLuca's testimony. Specifically, Harris recounted how she received a call from Cruz on the day of his arrest to ask her to come to the precinct and bring identification. (See id. at 43:7-44:15.) According to Harris, Castro informed her at the precinct that Cruz was arrested because his car had been reported stolen and that a stun gun had been found inside the vehicle. (See id. at 44:19-45:5.)

  Although Harris was not present at the time Cruz was stopped, she testified that she was familiar with Cruz's vehicle and that she was aware that Cruz kept a stun gun underneath the driver's seat. (See id. at 45:6-25.) Harris stated that the stun gun could not have slid forward onto the vehicle's floor board because a heating vent under the seat prevented such forward movement. (See id. at 46:1-24.)

  Harris further testified that based on her knowledge of Cruz's vehicle, the driver's door would not remain open by itself, even when the car was parked on a level surface. (See id. at 47:4-21; 53:9-22.) Harris's testimony on this point was elicited to rebut DeLuca's recollection that the driver's door was open when he observed the butt of the stun gun on the floor of the vehicle.

  On cross-examination, Harris admitted that she never actually removed the stun gun from under the seat, nor had she ever seen anyone else do so. (See id. at 50:2-7; 51:18-25.) The Government also established that because Harris was not present at the time Cruz was stopped, she could not have known exactly where the stun gun was at that time nor what the condition of the floor board was on that day. (See Id. at 49:6-14.) When asked why Cruz possessed a stun gun, ...

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