The opinion of the court was delivered by: Michael B. Mukasey, U.S.D.J.
Richard Pitre, previously convicted of felony offenses in the courts of the State of New York, has moved to suppress a gun found in his possession on December 14, 2004, that forms the basis for the charge in this case, and statements he made following his arrest that day, arguing that the officers who found the gun lacked sufficient cause to detain and search him, and that he was not properly warned of his rights before he made incriminating statements. He argues also that despite governing Circuit authority to the contrary, the statute under which he is charged, 18 U.S.C. § 922(g)(1), is unconstitutional, both facially and as applied, and alternatively was not intended to apply to him, essentially because the authority of Congress to regulate firearms possession is based on its power to regulate interstate and foreign commerce, and such possession, at least in his case, had nothing to do with such commerce. An evidentiary hearing on the suppression motion was held on January 18 and 19, 2006.
For the reasons summarized below, both motions are denied.
At about 8:30 p.m. on December 14, 2004, four police officers from the 42nd Precinct, clad in plain clothes, conducted what was known as a "vertical" at 905 Eagle Avenue in the Bronx, after noticing several people congregated in the lobby of that building. (1/19/06 Tr. 71) A "vertical" involves traversing the building's hallways from top to bottom to determine whether dangerous or unlawful conditions exist. The building in question, owned by the New York City Housing Authority, was known to the officers of the 42nd Precinct as a "troublesome building" (Tr. 70) to which they had been summoned frequently to combat drug and firearms activity; those officers conducted "verticals" in their asserted capacity as legal custodians of the publicly owned building. (1/18/06 Tr. 6-8, 70-71)
Following the "vertical", which apparently disclosed no unlawful activity, the officers were standing in the lobby discussing where they would go next, when they noticed a woman enter the front door using a key. That door would lock automatically when it closed, but before it could close on this occasion defendant Richard Pitre caught it and entered the lobby immediately behind the woman. Two of the officers, Danny Santiago and Pedro Abreu, challenged Pitre, asking him whether he lived in the building and where he was going. According to both Abreu and Sergeant William Hall, Pitre immediately became nervous and stumbled for answers as he sought to justify his presence in the building. (1/18/06 Tr. 73, 94)
There was a discrepancy at the hearing between the testimony of Santiago and Sergeant William Hall, on the one hand, and Abreu and the defendant on the other, as to whether the officers' shields were displayed at the time they initially confronted Pitre (compare 1/18/06 Tr. 8, 72, with 1/18/06 Tr. 92, 1/19/06 Tr. 9) I credit the testimony of both Abreu and the defendant that the shields were not initially displayed, because if undercover officers encounter unlawful activity during a "vertical" they can at least try to gain access to it as participants or spectators provided they are not displaying their badges, and if that does not work can always resort to displaying their badges. If badges are displayed from the outset, this flexibility is lost. However, as noted below, I see somewhat less significance in this than Pitre apparently does.
There was a discrepancy in the testimony also as to what the officers said, with Pitre claiming they asked him, "Yo, do you know anybody that's got dope or crack" and continued to challenge him with, "Yo, tell me who got the dope and crack." (1/19/06 Tr. 6) The officers testified that they asked him whether he lived in the building and where he was going. (1/18/06 Tr. 11, 72, 93) Here, I credit the testimony of the officers, whose version of this event is far more credible than Pitre's, in large part because for two reasons it is far more likely. First, the officers who saw Pitre enter an otherwise locked door by catching it before it closed had at least some reason to believe that he did not live in the building, and the inquiry they testified to was an entirely natural response to what they had just seen. Second, it is highly unlikely that even someone who did not know they were police officers but did know about drug dealing would respond in any informative way to an inquiry from four total strangers in the lobby of a building as to where drugs could be found. The futility of such a stark inquiry must have been obvious to trained police officers and I find that it was not made here.
The officers moved closer to Pitre as they questioned him, and Pitre has suggested that he was in fact seized within the meaning of the law as soon as he came through the door, and with nothing but his entry through the door to justify the seizure. However, I credit the testimony of Santiago, who testified not once but twice to the effect that Pitre had started to walk past the officers when they hailed him (1/18/06 Tr. 10 ("He walked by quickly.), 40-41), and conclude that the officers moved closer as the questions were asked and Pitre seemed both nervous and evasive, touching his jacket repeatedly. This transpired in the time it takes a question or two to be asked and a subject to display unease, a period measured in seconds rather than minutes. (1/18/06 Tr. 42)
Santiago testified that when asked whether he lived in the building Pitre began to touch both his right front jacket pocket and his pants, raised his hands, said he didn't "want any beef" (after which the officers "said, 'You don't have any beef with the police, do you?'"), and said he had come to visit a friend but could not identify with certainty where the friend lived. (Tr. 11) Abreu testified that the defendant was "fidgeting" as he walked into the building, identified first one apartment and then another as his destination, became "wide-eyed" and "sweating" and "reached for his right side", and said he "don't want no beef with you," after which Abreu, according to his testimony --- which I credit -- pulled out his shield and responded that Pitre "don't have to have any beef with police officers." (Tr. 94) Santiago said he noticed the right front jacket pocket the defendant touched was "a little heavy, and when he grabbed it and curled his fingers underneath the bottom of the jacket, I could see a bulge." (1/18/06 Tr. 13)
From the testimony of Santiago, Abreu and Hall I conclude that Pitre had not been touched up to that point, but when he continued to raise his hand toward his right jacket pocket, and a bulge in the pocket became apparent to Santiago, that officer instructed Pitre to place his hands against a nearby wall, and Abreu touched Pitre's right arm, apparently to guide him to the wall. (1/18/06 Tr. 12-13, 94)
Although I have resolved the dispute about the display of police shields in Pitre's favor, and concluded that the shields were displayed only after questioning began and in response to Pitre's expressed desire to avoid a "beef," it is apparent, and I find, that Pitre was aware he was dealing with police officers as soon as he was asked whether he lived in the building. When four men of mixed ethnic background, one slightly older than the others, standing in the lobby of a building in the South Bronx, ask a young man who has just entered the building by stopping a door from locking whether he lives in the building and where he is going, that young man has every reason to believe that they are police officers, regardless of how they are dressed or whether they are displaying shields. Pitre, of course, was aware that he was in unlawful possession of a weapon, and his nervous demeanor and repeated touching of his pocket confirm that he had drawn the obvious conclusion that they were police officers before they so identified themselves. Indeed, his "I don't want no beef" confirms to my ear that he believed he was talking to people invested with authority rather than, as Pitre testified, to neighborhood ne'er-do-wells, toward whom I believe his vocabulary would have been more pointed.
Pitre's account of the confrontation makes little sense. Essentially, he said that he paid no attention to the officers when he first entered the building (1/19/06 Tr. 6) but when they blocked his way he thought they were merely "hanging out" (id. at 8, 9) and then suspected that they "were trying to rob me or something like that" (id. at 10-11). His response, notwithstanding that he obviously knew he was in possession of a gun, was to get "into a little defense tactic, like a little boxing stance." (1/19/06 Tr. 7) If Pitre thought he was being set upon by four men intent on robbing him, it seems to me highly unlikely that he would assume a posture suggesting he was ready to take them on with his fists when he knew he had in his pocket something that would change the odds radically in his favor ---namely, the gun ultimately seized from him.
The officers testified, and Pitre conceded, that once he was placed near the wall with his hands on it, and the police shields were fully displayed, he tried to take his hands down. (1/18/06 Tr. 13, 74; 1/19/06 Tr. 10) According to both Santiago and Hall, Pitre again reached toward his right front pocket. (1/18/06 Tr. 14, 74) At that point, according to Santiago, ...