United States District Court, W.D. New York
August 12, 2005.
UNITED STATES OF AMERICA, Plaintiff,
JOSEPH D. GREEN, JR., Defendant.
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
Defendant, Joseph D. Green, Jr. ("Green"), is charged in this
case with certain offenses relating to his alleged unlawful
possession of a firearm and cocaine base on May 7, 2003. This
Court referred all pretrial motions in this case to United States
Magistrate Judge Jonathan W. Feldman pursuant to
28 U.S.C. § 636(b).
Green has moved to suppress physical evidence, a firearm and a
quantity of crack cocaine, as well as statements made to law
enforcement officers on May 7, 2003, when Green and another,
Malcomb Bryant ("Bryant"), were stopped while driving Bryant's
vehicle by officers of the Rochester Police Department.
Magistrate Judge Feldman conducted a suppression hearing, and,
after receiving memoranda on the issues presented, issued a
Report and Recommendation on June 21, 2005 recommending that the
motion to suppress be denied in all respects. Defendant timely
filed objections to the Magistrate Judge's Report and Recommendation, and the Government filed a memorandum in support
of the Magistrate Judge's determinations.
The facts in this case are straightforward and not disputed in
any material way. I reviewed the transcript ("Tr.") of the
suppression hearing held on October 29, 2004, and I believe that
Magistrate Judge Feldman has summarized the pertinent facts
clearly and accurately. Familiarity with his Report and
Recommendation is assumed.
In arguing the suppression motion, the parties focused chiefly
on whether the stopping of Bryant's vehicle on May 7, 2003,
constituted an arrest or a Terry*fn1 stop. Rochester
Police Department Officers Robert Urtis and Myron Moses testified
that they had received information from an informant whom they
knew, Bryant, that a thin, tall, light-skinned black man, wearing
blue jeans and a t-shirt, was carrying a firearm. Shortly after
receiving that information, the officers observed a person
fitting that description, who later turned out to be defendant
Green. The officers then directed Bryant to make contact with
Green where he was then located, at the corner of Masseth and
Immel Streets in Rochester, New York.
Shortly thereafter, Bryant arrived in an automobile, which was
unexpected, since Officer Moses knew that Bryant's license had
been suspended. When Bryant arrived at the designated
intersection, Green jumped into the passenger side of the
vehicle. Before the vehicle could proceed, officers surrounded it
and ordered both Bryant and Green out of the vehicle.
Officer Moses testified that he knew Bryant, and also knew that
his driver's license had been suspended. Magistrate Judge Feldman
credited that testimony and determined that the officers had an objective basis to believe that Bryant was
committing a traffic violation, that is, driving with a suspended
license, regardless of the officers' subjective motivation. I
agree with Magistrate Judge Feldman's analysis of the pertinent
facts and the controlling legal authority concerning such traffic
stops. Based on what the officers knew, it was objectively
reasonable to believe that a violation of the New York Vehicle
and Traffic Law had occurred. I would affirm Magistrate Judge
Feldman's Report and Recommendation to deny the motion to
suppress on this basis alone. Once the stop of the vehicle had
been effected, the officers were justified in removing the
occupants. A weapon was almost immediately observed, in plain
view, where Green had been sitting in the vehicle. Armed with
this information, the subsequent pat-down and search of Green
were also reasonable.
I also believe that the facts here support the Magistrate
Judge's finding that this was a Terry stop rather than an
arrest. Although no bright-line test exists for distinguishing
between the two, see Weaver v. Shadoan, 340 F.3d 398, 408
(6th Cir. 2003); Smith v. Ball State Univ., 295 F.3d 763,
768 (7th Cir. 2002), the Second Circuit has set forth several
factors to be considered, see Oliveira v. Mayer, 23 F.3d 642,
645 (2d Cir. 1994), cert. denied, 513 U.S. 1076 (1995); United
States v. Perea, 986 F.2d 633, 645 (2d Cir. 1993). These
the amount of force used by police, the need for such
force, and the extent to which the individual's
freedom of movement was restrained, . . . and in
particular such factors as the number of agents
involved . . .; whether the target of the stop was
suspected of being armed . . .; the duration of the
stop . . .; and the physical treatment of the suspect
. . ., including whether or not handcuffs were used.
Perea, 986 F.2d at 645 (citations omitted). No one of these
factors is dispositive, and "[i]ndeed, courts have occasionally
concluded that a particular detention was a permissible Terry
stop even though it involved a few of the[se] intrusive elements. . . ."
Oliveira, 23 F.3d at 646 (collecting cases).
In the case at bar, the officers were certainly justified in
stopping Bryant's vehicle (or more accurately, in preventing
Bryant from driving away from the scene), based on their
knowledge that his driver's license had been suspended. Having
done so, they were also justified in ordering the occupants out
of the vehicle. See Maryland v. Wilson, 519 U.S. 408, 415
(1997) ("an officer making a traffic stop may order passengers to
get out of the car pending completion of the stop"); Mollica v.
Walker, 229 F.3d 366, 369 (2d Cir. 2000) ("if a stop is lawful,
passengers and drivers have no Fourth Amendment interest in not
being ordered out of the stopped vehicle").
Defendant makes much of the facts that there were several
officers and police vehicles present, that the officers had their
guns drawn, and that Green was immediately restrained upon
exiting the vehicle. As the Second Circuit has explained,
however, "[w]hether a seizure is an arrest or merely an
investigatory detention, depends on the reasonableness of the
level of intrusion under the totality of the circumstances."
Posr v. Doherty, 944 F.2d 91, 98 (2d Cir. 1991). Here, those
circumstances included the facts that: the officers had been
given a detailed description, by a known informant, of a man
carrying a firearm; Green matched the informant's description of
the gun-wielding man; and the informant confirmed his initial
description by driving to the scene, where the suspect entered
the vehicle. Under those circumstances, it was more than
reasonable for the officers to order the occupants out of the car
and to restrain them, particularly Green, for their own safety
and that of any others in the area. See Oliveira, 23 F.3d at 646 (citing cases in which both the Second Circuit and other
circuits have found an intrusive detention to be only a Terry
stop where "the police . . . had a reasonable basis to believe
the suspect was armed or otherwise dangerous"); United States v.
Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993) (holding that
"the officers were also justified in ordering Mr. Perdue out of
the car and onto the ground as a means of neutralizing the
potential danger," and noting that "[t]his holding is consistent
with the recent trend allowing police to use handcuffs or place
suspects on the ground during a Terry stop") (citing United
States v. Esieke, 940 F.2d 29, 36 (2d Cir.) (handcuffs and leg
irons), cert. denied, 502 U.S. 992 (1991), and cases from eight
Had Green not jumped into the car, the officers would have been
justified in approaching Green, patting him down, and questioning
him based on their information that he was carrying a firearm. In
my view, the fact that Green jumped into the vehicle did not
alter the officer's right to take the action they did. See
United States. v. Martins, 413 F.3d 139, 149 (1st Cir. 2005)
(police officer may pat down an individual for concealed weapons
upon a reasonable suspicion that the individual might be armed,
provided that the officer's belief is grounded in specific and
articulable facts) (citing Maryland v. Buie, 494 U.S. 325, 327
(1990)). Of course, once the officers spied the firearm in plain
view in the vehicle (which occurred within moments after Green
was taken out and handcuffed, see Tr. (Dkt. #28) at 51), the
circumstances changed, justifying further action by the police,
including the arrest of Green.
Defendant also emphasizes that at the suppression hearing,
Officer Urtis referred to Green being "arrested from the
vehicle. . . ." Tr. at 51. An officer's subjective belief about
whether a person is being arrested or merely "stopped," however,
is irrelevant, for the test is an objective one. See United States v. Jackson, 377 F.3d 715, 717 (7th
Cir.) ("It does not matter for current purposes what label the
officer applied at the scene; analysis under the fourth amendment
is objective"), cert. denied, 125 S.Ct. 649 (2004); United
States v. Maguire, 359 F.3d 71, 77 (1st Cir. 2004) (test to
determine whether an otherwise valid Terry stop escalated into
a de facto arrest is "objective only"). If Officer Urtis had
testified that he believed that Green's initial detention was
nothing more than a Terry stop, presumably defendant would be
urging the Court to give that characterization no weight
whatsoever. I find, therefore, that the stop of the vehicle was
justified and find no basis to suppress either the firearm or the
Green also gave oral and written statements to the police at
the Public Safety Building. Magistrate Judge Feldman found that
the officers had properly advised Green of his Miranda rights.
There was no testimony by Green or any other witness to
contradict that factual determination. I agree with Magistrate
Judge Feldman that there is no basis to suppress the inculpatory
statements made by Green after his arrest.
I adopt the Report and Recommendation of United States
Magistrate Judge Jonathan W. Feldman, filed June 21, 2005. I deny
defendant's motion to suppress physical evidence and to suppress
statements, in all respects.
IT IS SO ORDERED.