The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Defendant Tarik Williams was indicted on December 8, 2006 on one count of knowingly and intentionally possessing a Keltec .380 caliber semi-automatic pistol, and ammunition, in violation of 18 U.S.C. §922(g)(1)*fn1 and 18 U.S.C. § 924(a)(2). Now before this Court is defendant's motion to suppress physical evidence and post-arrest statements, which was the subject of a hearing before the undersigned on February 5 and February 6, 2007.*fn2 For the reasons stated below, this motion is granted. What follows sets forth the findings of fact and conclusions of law on which this determination is based.
On the evening of September 11, 2006, three Police Officers, David Voyer, Wilson Sagardia and Sergeant Terrence Palusko, all members of a Brooklyn North Anti-Crime unit, were patrolling the 73rd and 75th precincts in an unmarked black Crown Victoria with tinted glass windows. According to the testimony of the officers, Officer Voyer was driving, Officer Sagardia was in the front passenger seat and Sergeant Palusko was in the rear passenger seat behind the driver. E.g. Sagardia Testimony, p. 5. All three officers were in uniform, with their official patches and shields displayed.
During their patrol, the officers were reassigned to the 81st precinct, also in Brooklyn, following reports of gunfire within that precinct, in order to provide "extra enforcement" in the area. Sagardia Testimony, p. 19.*fn3 At approximately 11:30 P.M. the defendant flagged down the officers from in front of his parents' building at 300 Vernon Street. Defendant had been visiting his parents and was waiting for a livery cab he had called for from his parents' apartment. When the defendant saw the unmarked police car approaching, he believed that it was the livery cab and ran outside.*fn4
Upon seeing the defendant, the officers stopped the car a few feet past where he was standing and backed the car up. According to the officers' testimony, two of the officers, Sergeant Palusko and Officer Sagardia, got out of the car and approached the defendant, Palusko exiting nearest to the defendant from the back seat on the driver's side and Sagardia exiting from the front passenger seat. Palusko Testimony, p. 37.*fn5
Upon seeing the officers, the defendant registered surprise and, according to two of the officers,*fn6 dropped a thin, square clear plastic envelope containing a "green leafy substance," slightly larger than a postage stamp, from his left hand. Sagardia Testimony, p. 9; Palusko Testimony, p. 36. The bag was recognized as a "nickel bag" representing $5 worth of marijuana. Sagardia Testimony, pp. 62. Sergeant Palusko testified that he then asked the defendant if he had "anything else on him." Palusko Testimony, p. 40. According to Palusko, when the defendant did not respond, Palusko patted him down and detected a gun in the defendant's waistband. Palusko Testimony, p. 41. Palusko then removed the loaded Keltec .380 caliber pistol and alerted Officer Sagardia by code to the presence of a gun. When the defendant resisted being handcuffed, Officer Sagardia joined Sergeant Palusko in an effort to subdue the defendant and Officer Voyer, according to his testimony, got out of the car to assist his fellow officers. Voyer Testimony, p. 67. The three officers succeeded in subduing the defendant and arrested him. The defendant, Officer Voyer and Sergeant Palusko were all injured in the struggle.
The defendant testified at the hearing that he did in fact possess the gun and the marijuana. Williams Testimony, pp. 81-82.
However, according to the defendant, he did not drop the bag of marijuana. Rather, he testified that the bag was removed from a small change pocket on the front of his pants during a pat down which occurred immediately after the police exited the vehicle. Williams Testimony, p. 82. According to the defendant, an officer, whom he identified as Voyer, exited from the side of the vehicle nearest the defendant, approached him, and asked if he had a gun. Williams Testimony, pp. 81, 89. Defendant responded by lifting his sweatshirt and undershirt to show the officers that he did not. Williams Testimony, p. 83.*fn7 According to the defendant, the gun was clipped to his waistband, concealed inside the front of his pants and not visible, held in place by a thin tapered black metal clip, approximately two inches long by one quarter of an inch wide, attached to the gun's grip. Williams Testimony, pp. 81, 91; Government Exhibit SH-2. Voyer nevertheless began to pat the defendant down and immediately found the bag of marijuana. Williams Testimony, pp. 81. Voyer thereupon continued his pat down and found the gun. Williams Testimony, pp. 81, 89.
Defendant was subsequently read his Miranda rights by detectives at the precinct, signed a waiver of those rights and was interrogated, after being held for several hours in a holding cell.*fn8 During that interrogation, defendant wrote out and signed a statement saying that he possessed "a gun a 380" on the night of the arrest and that he was carrying it because someone whom the defendant had previously shot had stated that he was going to retaliate. Government Exhibit SH 6. Police also seized $529 from the defendant, consisting of nine $1 bills, fourteen $5 bills, three $10 bills, eleven $20 bills, and two $100 bills. According to the defendant, the money represented a portion of his salary which he had left with his mother for safekeeping and which he had retrieved that night to pay his rent and buy gifts for his son's recent birthday; defendant testified that he was paid for his construction job in cash with whatever his employer had available and that he was not selling drugs. Williams Testimony, pp. 76-77, 86, 100.
Physical evidence derived from an illegal stop and frisk is excluded from use at trial, as are verbal statements, unless the prosecution can demonstrate that such statements were made voluntarily and not tainted by the illegal arrest. Wong Sun v. U.S., 371 U.S. 471, 487-88 (1963); Brown v. Illinois, 422 U.S. 590, 603 (1975). According to defendant, the search in this ...