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United States v. Forte

January 30, 2006

UNITED STATES OF AMERICA,
v.
RALPH FORTE, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Court

DECISION AND ORDER

INTRODUCTION

This matter is before the Court on the defendant's motion to suppress tangible evidence. In that regard, an evidentiary hearing was held, at which one witness, Rochester Police Officer Carlos Santory, testified. Additionally, certain exhibits were received into evidence. The Court has now had a chance to consider both the testimony and exhibits. For the reasons discussed below, defendant's application to suppress is denied.

FINDINGS OF FACT

On February 2, 2005, Officer Carlos Santory was employed by the City of Rochester Police Department as a uniformed road patrol officer and, as of that date, had been so employed for six years. On February 2, 2005, he was in fact working in a uniformed capacity. At approximately 6:30 p.m. on that date, Officer Santory was in his police vehicle in a parking lot at Dewey and Lexington Avenues in the City of Rochester. At that time a male black citizen, who was approximately 35 to 40 years old, walked up to where Officer Santory was parked. The male black was accompanied by his daughter, who appeared to be between four and six years old. Officer Santory did not get the man's name. However, this individual informed Officer Santory that he had been driving and observed a group of male blacks arguing on Lexington Avenue. He also stated to Officer Santory that he had observed a male black who was part of the group waving a shotgun around, and that he was worried that someone was going to get shot or hurt. He further indicated to Officer Santory that he observed one of the males, whom Officer Santory assumed was the male black who had been waving the gun, place the weapon in the trunk of an older model blue Nissan. The man speaking to Officer Santory pointed down Lexington Avenue in an easterly direction where he had made these observations. After speaking with this individual, Officer Santory proceeded east on Lexington Avenue in the direction that the man had pointed. Officer Santory also contacted the police dispatcher on his radio, to report a possible man with a gun in the area of Dewey and Lexington Avenues. Officer Santory drove down Lexington Avenue at approximately 30 to 45 miles per hour, covering a distance of about a quarter mile, to the area of 263 Lexington Avenue. At this time, he observed a large group of blacks, about ten to fifteen people, mostly males, to his right on the south side of Lexington Avenue. As he approached, members of the group started to leave and it appeared to Officer Santory that they were trying to get away. Officer Santory also noticed a vehicle in the driveway at 263 Lexington Avenue that generally fit the description of the vehicle provided by the unidentified male black to whom he had just spoken. However, the vehicle was not an older model blue Nissan, but an older model blue Toyota Camry. Additionally, as he approached 263 Lexington Avenue, Officer Santory observed the defendant, a male black, about 15 feet from the vehicle walking from the front porch area of 263 Lexington Avenue toward the passenger side of the car. Officer Santory then watched as the defendant walked toward the rear of the vehicle. Officer Santory saw that the trunk of the Toyota was open, and he observed the defendant attempt to close it, but the trunk did not latch. Officer Santory continued to watch as the defendant walked around the back of the Toyota to the driver's door, and observed the defendant get into the car and start the engine. About twenty seconds elapsed from the time Officer Santory arrived in the vicinity of 263 Lexington to the time that the defendant got into the Toyota and started it up. Officer Santory stopped his police vehicle and directed the defendant to shut the car off and get out of the car. Officer Santory then got out of his vehicle and approached the defendant. As Officer Santory did so, he had his hand on his service weapon, although he did not have it drawn. The defendant did as directed, turned the car engine off, and got out of the Toyota. Further, upon Officer Santory's request, the defendant identified himself as Ralph Forte. Based upon the information Officer Santory had received concerning a firearm and based upon the fact that Officer Santory knew that the location where the encounter was occurring was a high crime area (about a week earlier Officer Santory himself had arrested somebody about a block away on a gun charge), he patted the defendant down to determine if he was armed with a gun. After determining that the defendant was unarmed, Officer Santory, who was alone at the time, placed him in the rear of his police vehicle. Officer Santory's police vehicle had a cage between the front and the back seats and the rear doors could not be opened from inside the car. Officer Santory can not recall whether he handcuffed the defendant before placing him in the rear of his police vehicle, but he may well have. About the time he placed the defendant in the rear of his vehicle, Officer Santory was joined by two other members of the Rochester Police Department, a lieutenant and an officer. After the defendant was placed in the rear of his police vehicle, Officer Santory went to the rear of the Toyota to get the license number to determine who the owner was, so he could run a record check. When he did, Officer Santory observed that the trunk was almost completely open. He looked inside and saw, in plain view, the rifle depicted in Exhibit No. 2 in evidence. At the time he made this observation, Officer Santory was aware of a City of Rochester ordinance that required stored firearms to be equipped with a trigger lock or to be kept in a lock box. The rifle in the Toyota's trunk was not in compliance with this ordinance. However, while Officer Santory observed that the rifle neither had a trigger lock, nor was it in a lock box, the violation of the ordinance did not occur to him at the time of his observation and did not play a part in his initial detention and subsequent arrest of the defendant. Approximately a minute elapsed from the time that Officer Santory first encountered the defendant and told him to shut the car off until the time when Officer Santory observed the rifle in the trunk of the Toyota. After observing the rifle in the Toyota's trunk, Officer Santory proceeded to conduct a record check on the defendant. He learned that the defendant had a criminal record and was in fact on parole. At that time, Officer Santory placed the defendant under arrest and transported him to the Rochester Public Safety Building. The amount of time that elapsed from the point where Officer Santory placed the defendant in the rear of his police vehicle until he learned the defendant's prior record was some time under twenty minutes.

ANALYSIS

The defendant contends that the firearm seized by Officer Santory on February 2, 2005 must be suppressed for two reasons. First, he argues that Officer Santory lacked reasonable suspicion to believe that he was involved in criminal activity, based upon "information he received from an anonymous tip provided by a person who approached the officer on the street," which lacked any "indicia of reliability." (Memorandum of Law in Support of Defendant's Suppression, December 30, 2005, pp. 2-3.) Therefore, the defendant maintains that his stop by Officer Santory was illegal at the outset. Second, the defendant contends that even if Officer Santory 's initial investigative stop was legal, his subsequent detention exceeded lawful parameters and amounted to arrest on less than probable cause.

Consequently, he argues the firearm must be suppressed, in any event, as the fruit of an unlawful arrest. On the other hand, the government argues against suppression, contending that Officer Santory's detention of the defendant, based upon reasonable suspicion, until the completion of the record check, was lawful both in its inception and its duration. Alternatively, the government argues that when Officer Santory observed that the rifle in the trunk of the blue Toyota was in violation of a city of Rochester ordinance, since it did not have a trigger lock nor was it in a lock box, reasonable suspicion ripened into probable cause. The Court determines, based upon its findings of fact and applicable law, that the government has established by a preponderance of evidence that both the stop of the defendant and seizure of the weapon were lawful.

A. Investigative Stop

In addressing the constitutionality of an investigative stop, the inquiry is twofold. First, a police officer's action must be "justified at its inception." Terry v. Ohio, 392 U.S. 1, 20 (1968). Second, the officer's actions must be "reasonably related in scope to the circumstances which justified the interference in the first place." Id. If a police-citizen encounter exceeds the limits of a Terry stop, then the detention becomes an arrest that must be supported by probable cause. United States v. Hooper, 935 F.2d 484, 494 (2d Cir. 1991). Therefore, the Court must first consider whether at the time Officer Santory stopped the defendant he had reasonable suspicion to do so, and second, even if he had reasonable suspicion for the stop, did the encounter retain its lawfulness prior to his discovery of the firearm.

1. Reasonable Suspicion

Under Terry v. Ohio, and subsequent cases, "an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119 (2000). As the Supreme Court explained, "[r]easonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." Alabama v. White, 496 U.S. 325, 330 (1990). In determining whether reasonable suspicion exists, a court must consider the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 8 (1989). "This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotation and citation omitted). In short, "the determination of reasonable suspicion must be made on common sense judgments and inferences about human behavior." Wardlow, 528 U.S. at 125.

However, reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors-- quantity and quality--are considered in the "totality of the circumstances-the whole picture," United States v. Cortez, 449 U.S. 411, 417 (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Alabama v. White, 496 U.S. at 330. The question to be addressed is whether the police had the "minimal level of objective justification" necessary for a Terry stop. United States v. Sokolow, 490 U.S. at 7. In other words, the standard for determining whether a particular stop was justified by reasonable suspicion is an objective one, not dependent on the intentions or motivations of the particular detaining officers. United States v. Glover, 957 F.2d 1004, 1010 (2d Cir. 1992) Relying on Florida v. J.L., 529 U.S. 266 (2000), the defendant argues that the information given to Officer Santory in the parking lot at Dewey and Lexington Avenues by the unidentified man did not meet the minimal level of objective justification necessary for a Terry stop, since it essentially amounted to an anonymous tip unsupported by any indicia of reliability. However, the Court disagrees. In J.L. the Supreme Court held that police officers lacked reasonable suspicion to make a Terry stop when an anonymous caller reported that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun." Id. at 268. The Supreme Court explained that the precise issue before the Court was "whether the tip pointing to J.L. had [sufficient] indicia of reliability." Id. at 266. Finding the tip unreliable, the Court did not consider under what circumstances a reliable tip that someone was carrying a gun would provide the police with reasonable suspicion. Instead, the Court concluded, "[a]ll the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L." Id. at 271.

The facts of this case are clearly distinguishable from J.L. First, the information was not provided by an anonymous caller on the telephone. Rather it was provided to Officer Santory face to face by a citizen accompanied by his very young daughter. Consequently, Officer Santory had more reason to believe that the information was credible, since, "when an informant relates information to the police face to face, the officer has an opportunity to assess the informant's credibility and demeanor." United States v. Christmas, 222 F.3d 141, 144 (4th Cir. 2000). Moreover, citizens who personally report crimes to the police expose themselves to accountability for lodging false complaints. Illinois v. Gates, 462 U.S. 213, 233-34 (1983). In this case, it is significant to note that, while the black male was not identified, it was not because he refused to give his name to the police. Rather, Officer Santory never asked for his name. Both the Supreme Court and the Second Circuit have recognized the difference between in-person informants and anonymous telephone calls. See Florida v. J.L., 529 U.S. at 276. (Kennedy, J., concurring) ("If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip. An instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring."); and United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir.1991) ("[A] face-to-face informant must, as a general matter, be thought more reliable than an anonymous telephone tipster, for the former runs the greater risk that he may be held accountable if his information proves false."). Furthermore, in contrast to J.L., where the informant did not explain how he came to possess the information he was providing, here the reporting individual told Officer Santory that he himself observed a group of males arguing on Lexington Avenue, observed one of the group, a male black, wave a shotgun around, and then observed one of the males place the weapon in the trunk of an older model blue Nissan, and then he pointed in the direction where he had made these observations. Also, the timing of the report to Officer Santory must be considered in evaluating the ...


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