The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
Defendant Sekou Branch ("Branch"), previously convicted of a felony offense in New York Supreme Court, moves to suppress a 9mm pistol and one pound of marijuana found in his possession on October 7, 2005, that form the basis for the charge in this case,*fn1 and the statements he made following his arrest that day. Branch argues that the officers who found the contraband lacked sufficient cause to detain and search his property, and that he was not properly advised of his rights. He alleges violations of his rights under the Fourth and Fifth Amendments. An evidentiary hearing on Defendant's motion was held on August 1 and August 2, 2006.
For the reasons set forth below, the motion to suppress the gun and the marijuana and the motion to suppress the oral statements are denied.
There is little the Government and the Defendant agree on, except that a car accident occurred at approximately 9:00 p.m. on October 7, 2005 in the Bronx at the intersection of the Grand Concourse at 188th Street. Defendant and his colleague, Eric Irizarry ("Irizarry"), were in a car owned by Defendant's girlfriend, driven by Irizarry, heading south on the Grand Concourse. Irizarry made a left-hand turn onto East 188th
Street, but was hit by a livery car driving north on the Grand Concourse service or access road. The force of the collision spun the Branch-Irizarry vehicle around, and it ended up on the Northeast corner of 188th Street, half in the street and half on the sidewalk, alongside a subway entrance. When the car came to rest, it was facing west, and directly across the street from an unmarked New York Police Department passenger van parked on the Southeast corner of 188th Street and the Grand Concourse.
Detective Richard Wells ("Wells") was in the driver's seat of the van and Detective Anthony Casilla ("Casilla") was the front seat passenger. They were part of a police buy and bust operation which was operating further east on Valentine Avenue and East 188th Street. Wells and Casilla were to collect and hold in the passenger van anyone arrested in the buy and bust operation.
Shortly after the Branch vehicle came to rest, Wells said he noticed Branch get out of the car, go to the trunk of the vehicle and remove two bags. Branch also testified that he went to the rear of the car, opened the trunk and removed two bags, one containing a laptop computer, and the other, a large plastic shopping bag. It is uncontested that the shopping bag contained a box holding a 9mm pistol, and one pound of marijuana, wrapped in cellophane.
From this point forward, the police officers and Branch offer sharply different versions of what Branch did after he removed his bags from the trunk.
Branch maintains that having removed the bags from the trunk, he stood along side the car with the bags at his side. He did not walk away, or enter the subway, and the bags never left his side. Under this version, the police officers had no reason to arrest him or to open the shopping bag and search its contents.
The Government's version is that after removing the bags from the trunk, Branch walked away from the vehicle, heading east on 188th Street, for a short distance.*fn2 Then he turned around, and walked back and entered the subway, leaving the plastic bag, containing the gun and marijuana, at the top of the subway steps. According to the Government, the police had reason to stop Defendant, and examined the contents of the bag which had been abandoned.
II. DETECTIVE WELLS'S TESTIMONY
Wells testified that at approximately 9:00 p.m. on October 5, 2005, he and Casilla were stationed at the corner of 188th Street and the Grand Concourse in an unmarked prisoner van for a narcotics buy and bust operation. (Wells, Tr. 5-8.) Wells observed the car accident at that intersection, and saw Branch exit the car, walk to the rear of the car, open the trunk, and remove a shoulder bag and plastic shopping bag. (Wells, Tr. 11-12.) Irizarry got out and walked away from the car in the direction of the livery cab driver, who was still on the Grand Concourse access road. (Wells, Tr. 13.) Wells instructed Casilla to radio the field team about the accident and to alert them that an individual was walking towards them. (Wells, Tr. 13-14.) After removing the two bags, Branch walked away from the car, stopped after walking a short distance, reversed his direction, and walked back towards the accident site. (Wells, Tr. 14.) Wells, wearing a jacket with prominent police insignia, got out of the van, crossed 188th Street from the south side to the north side, and made eye contact with Branch. (Wells, Tr. 14.) Branch's pace quickened after the eye contact, and Wells radioed for backup. (Wells, Tr. 14.)
Branch then walked past the accident site, quickly turned around the green gate leading down to the subway, dropped the plastic bag he was holding on the top stair, and went down the stairs to the subway. (Wells, Tr. 15.) Wells then radioed that the individual was "going in the hole," which is police jargon for going into the subway. (Wells, Tr. 15.) Wells went down the subway steps with his police shield out and his service revolver in his hand. (Wells, Tr. 15-19.) He saw Branch standing on the landing at the bottom of the first flight of steps and ordered him to come back up the stairs. (Wells, Tr. 18-19.) Branch asked what was going on, to which Wells replied that he had been in ...