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United States v. Derverger

March 24, 2008

UNITED STATES OF AMERICA,
v.
DEVON DERVERGER, DEFENDANT.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM - DECISION AND ORDER

I. Introduction

Currently pending before the Court is a motion to suppress evidence brought by defendant, Devon Derverger, pursuant to Rule 12(b)(3)(C) of the Federal Rules of Criminal Procedure. Defendant asserts that the seizure of a shotgun by officers of the Albany Police Department ("APD") violated his Fourth Amendment rights. Defendant also moves to suppress any statements that he made prior to and coinciding with the officers' seizure of the shotgun, as the fruit of an unlawful detention or as having been tainted by a Fourth Amendment violation. The Court held a suppression hearing and requested the parties to submit proposed findings of fact and conclusions of law, which they have since filed. The following, based upon the Court's observations at the hearing, its review of the hearing transcript, the parties' submitted arguments and the applicable law, represents the Court's findings of fact and conclusions of law.

II. Background

On July 5, 2006, in Albany, New York, law enforcement officers initiated a traffic stop of defendant's vehicle. As the result of the traffic stop during which officers seized a shotgun from defendant's vehicle, defendant was charged with Criminal Possession of a Weapon Third Degree, in violation of N.Y. PENAL LAW § 265.02(3), a class D felony, and Criminal Possession of a Weapon Fourth Degree, in violation of N.Y. PENAL LAW § 265.01(1), a class A misdemeanor. Additionally, the officers issued defendant a traffic citation for his failure to wear a seatbelt in violation of N.Y. VEH. & TRAF. § 1229(c)(3). Defendant was arraigned on the above charges in Albany City Court.

After defendant's arraignment, however, members of the Albany County District Attorney's Office and the APD consulted with members of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and the United States Attorney's Office, and the federal authorities agreed to pursue charges against defendant. See Dkt. No. 16, Mem. of Law at 2-4.

On November 2, 2006, federal authorities brought a criminal complaint against defendant charging him with a violation of 26 U.S.C. § 5861(c) and obtained a warrant for his arrest. On November 3, 2006, special agents of the ATF arrested defendant and took him into custody. See Dkt. No. 16, Mem. of Law at 4. On March 16, 2007, a federal grand jury returned a one-count indictment against defendant, which charged that on or about July 5, 2006, defendant possessed a Mossberg 12-gauge shotgun modified such that (1) its overall length was less than 26 inches, (2) its barrel was less than 18 inches and (3) it did not display a serial number, all in violation of 26 U.S.C. §§ 5845(a)(2), 5861(c) and 5871.*fn1 See Dkt. No. 10, Indictment.

III. Findings of Fact

A. Initiation of Traffic Stop

On July 5, 2006, uniformed officers Brian Vennard of the APD and Josh Baker of the New York State Police were working together as part of the New York State Integrated Municipal Police Anti-Crime Team ("IMPACT"). At approximately 5:50 p.m., while performing their duties in a marked patrol vehicle in the vicinity of the intersection of Clinton and North Lake Avenues in the City of Albany, New York, they observed defendant operating a 1997 Acura stopped at a red traffic signal. They further observed that defendant was operating the vehicle without wearing a seatbelt, and they decided that after the traffic signal turned green, they would initiate a traffic stop on that basis. When the traffic signal turned green, they turned on their patrol vehicle's emergency lights, and defendant immediately pulled his vehicle to the side of North Lake Avenue. See Dkt. No. 30, Tr. at 5-10.

Officer Vennard and Trooper Baker exited their patrol vehicle and approached the driver and passenger sides, respectively, of defendant's vehicle. Officer Vennard observed that the windows of defendant's vehicle were down, and he asked defendant to produce his licence, insurance and registration. Defendant promptly complied with Officer Vennard's request and handed over his license, insurance and registration. See Dkt. No. 30, Tr. at 10-13. The testimony offered by Officer Vennard, Trooper Baker and defendant is largely consistent with respect to the initiation of the traffic stop. The parties' accounts, however, differ widely with respect to those issues most crucial to the resolution of the instant motion. As discussed below, the parties disagree as to defendant's demeanor, the timing and circumstances of defendant's admissions and law enforcement's search of his vehicle.

B. Defendant's Appearance and Demeanor

At the hearing, Officer Vennard characterized defendant as unusually nervous during the course of the traffic stop. Vennard testified that defendant appeared "fidgety" and recalled that he stuttered in response to routine questioning. See id. at 12-13, 32. Similarly, Trooper Baker recalled having observed defendant's erratic movements and stuttered speech in response to questioning. See id. at 45. In contrast, however, defendant testified that his appearance and speech did not suggest any nervousness: he did not stutter his words; he was not sweating profusely; he was not shaking; and he experienced no difficulty producing his license and registration. See id. at 84. Defendant argues that any alleged nervousness is belied by the readiness with which he produced his license, insurance and registration: he was familiar with routine police procedure, having been previously pulled over for traffic violations. See Dkt. No. 23 at 6-7.

While the Court does not attach any presumption of credibility to Officer Vennard and Trooper Baker merely on the basis of their profession, it notes the consistency of Officer Vennard's and Trooper Baker's testimony on this point of contention. The Court also observes that common sense suggests that knowingly possessing an illegal shotgun, as admitted by defendant during his testimony, see Dkt. No. 30, Tr. at 99, in one's vehicle during an otherwise routine traffic stop might very well produce physical manifestations of nervousness such as ...


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