United States District Court, S.D. New York
July 14, 2004.
UNITED STATES OF AMERICA,
LARRY WILLIAMS, IBN LEE, SHAWN McCOY, KEVIN THOMPSON, MAURICE CLARKE, Defendants.
The opinion of the court was delivered by: BARBARA JONES, District Judge
Defendant Kevin Thompson moves to suppress evidence that was
recovered by New York City police officers on March 7, 2002. A
suppression hearing was held on February 13, 2004. For the
reasons stated below, Mr. Thompson's motion to suppress is
At the February 13 hearing, testimony was taken from New York
City police officer Captain Paul De Entremont and former New York
City police officer Vincent Valentino. Based upon their
testimony, which I credit, I find the following facts:
In January 2002, Captain De Entremont was involved in a
"debriefing" of a recently-arrested individual named Maurice
Clarke, who is one of Mr. Thompson's co-defendants in this case.
Mr. Clarke, who was facing a significant amount of jail time for his arrest, agreed to provide information
to Captain De Entremont. Mr. Clarke provided information
regarding two separate locations that were, according to Mr.
Clarke, being used for narcotics trafficking, and stated that Mr.
Thompson was "connected" to one of the locations. Mr. Clarke also
told Captain De Entremont that Mr. Thompson drove a black, late
model Acura Legend, and had a firearm "secreted in the engine
Based upon the information provided by Mr. Clarke, search
warrants were sought and ultimately executed for the two
locations. A firearm and a large amount of narcotics were
recovered. Captain De Entremont disseminated the information
regarding Mr. Thompson's automobile to other New York City police
officers; that information was ultimately passed on to Officer
Valentino, who was also provided with a photograph of Mr.
Thompson as part of a HIDTA packet.*fn1
In the early hours of March 7, 2002, while in a vehicle
patrolling the area with other New York City police officers,
Officer Valentino heard a radio report indicating that shots had
been fired in the vicinity of Bronxwood and Barnes Avenues in the Bronx. The report stated that the shots
were fired from a Black Acura Legend, which was occupied by two
to four black men. Officer Valentino's vehicle responded to the
call and, approximately one hour after the initial report, the
officers saw a Black Acura Legend in front of a nightclub in the
general vicinity of where the shots were fired. When the officers
pulled up next to the vehicle, Officer Valentino rolled down his
window, looked into the vehicle, and recognized the driver (and
only occupant) of the car as Kevin Thompson. Officer Valentino
directed Mr. Thompson to step out of the vehicle and to step
toward the rear of his car. At that time, the officers began to
search the interior of Mr. Thompson's car and recovered currency,
two-way radios and a cellular phone. Then Officer Valentino
opened the hood of Mr. Thompson's car, at which time Mr. Thompson
fled the scene. The officers were able to catch up to Mr.
Thompson within one or two blocks. They handcuffed Mr. Thompson,
brought him back to where his vehicle had been stopped, and
Officer Valentino proceeded to search under the hood of the car.
A black case containing a 9 mm handgun was recovered from the
engine area of the car. DISCUSSION
During a traffic stop, law enforcement officers may detain an
individual for a brief period of time, order an individual out of
the car, and "when police have a reasonable belief that the
suspect poses a danger," then a "search of the passenger
compartment of an automobile, limited to those areas in which a
weapon may be placed or hidden" is permissible. Michigan v.
Long, 463 U.S. 1032, 1049 (1983). However, in the absence of
probable cause, police may not conduct "a full field-type search"
of an automobile. Knowles v. Iowa, 525 U.S. 113, 117 (1998).
The question presented here is whether the police officers had
probable cause to search under the hood of Mr. Thompson's
car.*fn2 "The probable-cause standard is incapable of
precise definition or quantification into percentages because it
deals with probabilities and depends on the totality of the
circumstances." Maryland v. Pringle, 124 S.Ct. 795, 800
Mr. Thompson argues that the information supplied by Maurice
Clarke regarding the gun in the engine compartment was stale as
of March 7, 2002, and thus could not form the basis of probable
cause. Mr. Thompson also argues that the radio report did not provide sufficient information as to provide
probable cause to search under the hood of Mr. Thompson's car. I
agree that the information from Maurice Clarke was stale as of
March 7, 2002 and that the radio report, taken alone, would not
provide probable cause to conduct a full search of Mr. Thompson's
car. Nonetheless, viewing that information together with other
information within the knowledge of the officers, I find that
there was probable cause to conduct a full search of the vehicle.
"While there is no bright line rule for staleness, the facts in
an affidavit supporting a [search] must be sufficiently close in
time to the [search] conducted so that probable cause can be said
to exist as of the time of the search and not simply as of some
time in the past." United States v. Wagner, 989 F.2d 69, 75 (2d
Cir. 1993). Of course, seemingly stale information can be
revitalized by additional information containing current facts.
United States v. Gigante, 979 F. Supp. 959, 964 (S.D.N.Y. 1997)
Here, the information provided by Maurice Clarke was a minimum
of six weeks old at the time of the search, because Mr. Clarke's
information (which did not specify the timeframe for his
knowledge) was, at best, current as of the date of his arrest in
January 2002. Defendant is correct that information that is at least six weeks old is
generally too stale as to provide probable cause. See Wagner,
989 F.2d at 74 (finding six week delay rendered information
stale); see also 2 Wayne R. LaFave, Search and Seizure §
3.7(a) (1996) ("Absent additional facts tending to show
otherwise, a one-shot type of crime, such as possession or sale
of some form of contraband, will support a finding of probable
cause only for a few days at best."). However, as indicated
above, this information is but one portion of the totality of the
circumstances, and when all of the information known to the
officers at the time of the search is viewed as a whole, probable
cause existed to conduct a full search of Mr. Thompson's car.
Cf. United States v. Patrick, 899 F.2d 169, 171 (2d Cir.
1990) ("Probable cause to arrest a person exists if the law
enforcement official, on the basis of the totality of the
circumstances, has sufficient knowledge or reasonably trustworthy
information to justify a person of reasonable caution in
believing that an offense has been or is being committed by the
person to be arrested.").
The officers were aware from the radio report that shots had
been fired from a black Acura Legend, occupied by two or more
black men only one hour before the officers saw a black male
driving a car of that description in the vicinity of where the shots were fired an area that Officer
Valentino testified is a high crime area. Based upon these
circumstances the officers had articulable suspicion, sufficient
under Terry v. Ohio, 392 U.S. 1 (1968), to ask the driver to
exit the car and to conduct a limited search in furtherance of
their investigation of the recent shooting.*fn3
Once the officers realized that the driver of the vehicle was
Kevin Thompson, they also knew that Mr. Thompson was a known drug
dealer who had carried a gun secreted under the hood of his car
in the past. All of this information, as well as all of the
information regarding the shots that had recently been fired from
a black Acura Legend that is to say, the totality of the
circumstances establishes that the officers had probable cause
to believe that Mr. Thompson had a gun in his vehicle on March 7,
2002. In reaching this conclusion, I find that it is of no
significance that the information from Maurice Clarke was "stale"
at the time of the search or that the more recent information
i.e., the information from the radio report would not, standing alone, establish probable
cause for the search of the automobile. All of the information
known to the police at the time of the search must be viewed as
an integrated whole in assessing whether probable cause existed.
To do otherwise would improperly "focus on isolated issues that
cannot sensibly be divorced from the other facts" known to the
officers at the time. Illinois v. Gates, 462 U.S. 213, 235
Because the officers had probable cause to believe that a gun
would be found in the vehicle of Kevin Thompson on March 7, 2002,
the search of the vehicle was permissible and Mr. Thompson's
motion to suppress is DENIED.