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United States v. Mason

March 4, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DONALD MASON, DEFENDANT.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

Defendant Donald Mason (the "defendant") was indicted on December 20, 2007, on one count of knowingly and intentionally possessing a High Standard .357 revolver and ammunition, on November 26, 2007, having previously been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). A superseding indictment, filed January 10, 2008, charged that, on November 26, 2007, defendant (1) did knowingly and intentionally possess with intent to distribute five grams or more of cocaine base, in violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii); (2) did knowingly and intentionally possess a firearm in furtherance of the crime charged in the first count, in violation of 18 U.S.C. § 924(c)(1)(A)(I); and (3) did knowingly and intentionally possess a High Standard .357 revolver, and ammunition, having previously been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Now before the Court is defendant's motion to suppress physical evidence and various statements, which was the subject of a hearing before the undersigned on February 11, 2008. For the reasons stated below, the motion is denied. What follows sets forth the findings of fact and conclusions of law on which this determination is based.

Background

New York Police Department ("NYPD") Officers Mourad Arslanbeck and David Porras (the "Officers") are members of the Manhattan Impact Response Team, a division of the NYPD Housing Bureau. Feb. 11, 2008 Hearing Transcript (mistakenly dated Nov. 20, 2003) at 6, 135 (hereinafter "Tr. at ___"). Officers Arslanbeck and Porras, as well as other members of this team, "saturate high-crime public housing areas . . . to deter crime [by] flooding the area with a lot of cops. And also, to reinforce quality of life issues such as drinking in public."

Tr. at 6. On the night of November 25 and continuing into the early morning of November 26, 2007, the Officers were on foot patrolling the Tilden Housing Development, which includes 265 Livonia Avenue, in Brooklyn, New York.*fn1 Tr. at 13-14, 16, 136. Officer Porras testified that he had been told by his supervisors that the Tilden development was a "high-crime area" that had experienced what he described as "a mass of shootings and robberies." Tr. at 66-67.

Officer Porras testified that he had patrolled twenty-five or more public housing developments over the course of his career prior to November 25, 2007 and, during that time, had seen "hundreds" of people entering buildings in such developments.

Tr. at 8. He testified that in his experience residents generally enter public housing buildings by using a key and that non-residents use a dial pad to ring the apartment of the person they are visiting. They announce themselves through an intercom to anyone who responds from the apartment, and then get "buzzed in" by the occupant of the apartment in order to enter the building. Tr. at 9. A panel next to the door at 265 Livonia Avenue in fact lists the apartments in the building and a corresponding four digit code to be entered on the dial pad to reach that apartment via the intercom. Tr. at 73-74; Gov't Ex. 3; Def. Ex. D.*fn2

Officer Porras testified that "on rare occasions" he had also seen New York City Housing Authority employees or emergency workers gain access to public housing buildings employing pass codes entered into the same dial pad used to dial specific apartments. Tr. 9-10. Officer Arslanbeck also testified that he, too, was aware of this use of pass codes and that, in his experience, each building has a separate code. Tr. 138-39.*fn3

The Officers entered 265 Livonia Avenue twice during their patrol. As the Officers are not issued either keys or pass codes, Tr. at 11, the Officers gained entrance to the building the first time by "piggybacking," entering as another person entered or left the building. Tr. at 29. The second time, the Officers were let in by an older gentleman who used a four digit pass code to open the door. Tr. at 25-26; 140-142. The Officers did not inquire whether the gentleman, who was standing outside the entrance but did not attempt to enter the building after he had let the Officers in, lived in the building or how he knew the code. See Tr. at 142.

A somewhat worse for wear sign in the lobby of 265 Livonia Avenue, posted above the mailboxes on the left side of the lobby, read in bold but delapidated lettering: "LOITERING AND TRESPASSING IN LOBB[Y, ROO]F, HALLWAY AND STAIRS NOT PERMITTED VIOLATOR[S] ARE SUBJECT TO ARREST AND PROSECUTION BY THE [NEW YORK CITY HOUSING AUTHORITY] POLICE DEPARTMENT." Tr. 34-25, 97; Gov't. Ex. 10. The chief investigator for the defendant credibly testified that he did not see any "No Trespassing" signs posted outside of 265 Livonia Avenue. Tr. at 167; see also Def. Exs. C, B, L, K, and M;*fn4 Tr. at 162.

Following their second entrance into 265 Livonia Avenue, at approximately 1:55 a.m. on the morning on November 26, 2007, the Officers were standing in the lobby, positioned behind a column. Officer Porras had his back to the door and Officer Arslanbeck was in front of him, facing the door, but also at least partially concealed by the pillar. Only Officer Arslanbeck could see the door. Tr. at 90. The door to the building was made of metal, id., with eighteen portholes, of which all but the three at the top and the three at the bottom were covered. Tr. at 91. Officer Porras testified both he and Officer Arslanbeck were "paying attention to how people [were] entering the building, whether with a key or piggybacking behind somebody." Tr. at 30.

At approximately 1:55 a.m., Officer Arslanbeck saw, through the bottom portholes of the door, an unidentified person approach. Tr. at 143. He also testified that he heard someone punching in numbers on the dial pad, "followed by a little beep and then . . . the magnets releasing from each other and the door opening." Tr. at 143-44. Officer Porras testified that he heard four beeps on the dial pad, the door open, and footsteps enter the building. Tr. at 40. Neither Officer heard a key in the lock, a buzzer, or any voice on an intercom. Tr. at 40, 144. Defendant then entered the building. Tr. at 41-42, 144.

The Officers came around the column and approached the defendant. Tr. at 42, 148. When they were a few feet away from the defendant, Officer Porras remarked to defendant that he did not enter with a key. Defendant did not respond. Tr. at 43-4, 47, 103-04, 112, 148.*fn5 Office Porras then asked defendant if defendant were a resident of the building, to which the defendant responded that he was not. Tr. 44, 99, 148. Officer Porras next requested identification from the defendant, which the defendant produced. Tr. at 45, 149. The Officers ...


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