The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
On October 22, 2005, defendant James Pierce was arrested by the New York City Police Department for carrying a firearm and a quantity of ammunition in violation of New York law. On January 19, 2006, a federal grand jury returned a one-count indictment charging the defendant as a felon in possession of a firearm and a quantity of ammunition in violation of 18 U.S.C. §922(g)(1). On July 25, 2006, a second federal grand jury returned a one-count superceding indictment charging the defendant with possession of a firearm and a quantity of ammunition after having previously been convicted of three violent felonies, each committed on separate occasions, in violation of 18 U.S.C. §922(g)(1) and 18 U.S.C. §924(e)(1).*fn1 Defendant now moves to suppress the firearm seized from him at the time of his arrest, allegedly in violation of his Fourth Amendment rights. For the reasons set forth below, defendant's motion is denied.
Defendant also moves, pursuant to Fed. R. Crim. P. 12(b)(3)(a), to dismiss the 18 U.S.C. §922(g)(1) and 18 U.S.C. §924(e)(1) indictments. Defendant claims that one of thethree convictions upon which the indictment is predicated, Criminal Possession of a Weapon in the Second Degree, does not meet the statutory definition of a "violent felony" under 18 U.S.C. §924(e)(1). For the reasons set fourth below, the court finds that defendant was convicted of a violent felony and denies defendant's motion to dismiss the indictment.
A hearing was held on October 27, 2006, and continued on January 18, 2007, during which New York City Police Department Sergeant Matthew Walsh ("Walsh") and New York City Police Department Lieutenant Leighton Myrie ("Myrie") testified for the government and New York City Police Department Sergeant Michael Miller ("Miller") testified for defendant. To the extent indicated below, the court finds the testimony of each witness to be credible.
On October 22, 2005, New York City Police Department Detective Dwayne Chandler received information from a confidential informant regarding a person with a firearm. (Tr. 62).*fn2 Chandler works for the Police Department's firearms investigation unit. (Tr. 61). Chandler was off duty, at home with his family, and unable to act on the tip. Id. Chandler called Myrie to ask for his assistance. (Tr. 62). Myrie, a former partner and old friend of Chandler from the Police Academy, was on duty and close to the location where the person with the firearm was reported to be. (Tr. 62). Myrie then requested the assistance of Miller and Walsh. Myrie knew Miller and Walsh to be experienced and reliable. (Tr. 62-63). Having secured Walsh's and Miller's cooperation, Myrie called Chandler and told him that he was prepared to help. (Tr. 63). Chandler then gave Myrie the confidential informant's cell phone number, and Myrie called the confidential informant. (Tr. 63). Myrie had never worked with this informant before, and did not know his name. (Tr. 68). However, the confidential informant was "registered" with the District Attorney's Office. (Tr. 81). According to Myrie, the District Attorney's Office maintains a registry of informants. Id. Over time, registered informants are evaluated for reliability. Registered informants may receive a reward for accurate information. Id.
The confidential informant told Myrie that a black male wearing a brown leather jacket with a white hood, blue jeans and tan Timberland boots was carrying a loaded firearm and standing outside 233 Jefferson Avenue in Brooklyn. (Tr. 10, 63). Myrie did not write down anything the confidential informant told him. (Tr. 77). Myrie conveyed this information to Walsh who, in turn, conveyed it to Miller. (Tr. 10, 50). Miller, Walsh and Myrie got into Miller's car and drove to the vicinity of 233 Jefferson Avenue. The ride lasted between five and ten minutes. (Tr. 11, 46, 65-66, 70-71). Miller drove, Myrie sat in the passenger seat and Walsh sat in the back seat. Id. Upon entering Jefferson Avenue at the intersection of Jefferson and Nostrand Avenues, Myrie called the confidential informant's cell phone. (Tr. 65, 72). The confidential informant told Myrie that "the individual in question was in the middle of the block next to a moving van." (Tr. 65).
As stated by the informant, the officers observed a moving truck toward the middle of the block. (Tr. 21, 65, 71). Miller proceeded down Jefferson Avenue toward 233 Jefferson Avenue. Miller double parked the car and turned off the ignition. (Tr. 12, 47, 65). As described by the informant, the officers observed a black male wearing a brown leather jacket with a white hood, blue jeans and tan Timberland boots who later became known to them as James Pierce, the defendant. (Tr. 12-13, 47-48,65-66). Also, as described, the defendant was standing alone in front of 233 Jefferson Avenue. (Tr. 21, 71). Miller looked up and down Jefferson Avenue to determine whether the defendant was alone or was acting as a lookout. (Tr. 47-48). According to Walsh and Miller, the defendant was pacing up and down the street and appeared to be nervous. (Tr. 15, 31-32, 47-48). Although there were cars parked on both sides of the street, Walsh had a clear, unobstructed view of the defendant. (Tr. 14, 21). Walsh observed that one side of defendant's jacket was hanging lower than the other, indicating the presence of a heavy object. (Tr. 15). Walsh also saw defendant adjust something in this pocket several times. Id. When the defendant bent over, Walsh observed the butt of a handgun protruding from his right front jacket pocket and told the other officers. (Tr. 15, 16, 66). Neither Myrie nor Miller saw the defendant bend over or adjust his right pocket. (Tr. 48, 74). Myrie then decided that the three would approach the defendant. (Tr. 74).
The three exited the vehicle, crossed Jefferson Avenue and approached the defendant. (Tr. 16). Walsh led, followed by Myrie. (Tr. 67). While the defendant was facing away from Walsh, Walsh said "Police, don't move." Id. The defendant then raised his left hand in the air, but began to reach into his right pocket with his right hand. (Tr. 17, 67). Walsh tackled the defendant. (Tr. 17). Miller and Walsh then handcuffed and searched the defendant. Id. They recovered a Roxio .38-caliber revolver and arrested defendant. (Tr. 17-18).
A. Reasonable Suspicion to Stop and Detain
1. Defendant's Right to a Hearing
As an initial matter, the government contests the defendant's right to a suppression hearing because he did not submit an affidavit that was based on personal knowledge and set forth sworn allegations of facts. The defendant maintains that he is entitled to a hearing because the knowledge available to the Police officers before viewing defendant and their observations of and ...