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United States v. Midyett

February 6, 2009

UNITED STATES OF AMERICA
v.
TYQUAN MIDYETT, DEFENDANT.



The opinion of the court was delivered by: Kiyo A. Matsumoto, United States District Judge

MEMORANDUM & ORDER

I. BACKGROUND

Defendants Michael Brown and Tyquan Midyett are charged in a seventeen-count indictment with conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), possessing with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), and possessing with intent to distribute cocaine base in a school zone and in public housing facilities in violation of 21 U.S.C. § 860. Defendant Brown is also charged with using and carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c), and Midyett is charged with being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Defendants moved jointly for suppression of evidence recovered during a January 9, 2007 police search of Brown's apartment. The court denied that motion in a separate Memorandum and Order on February 3, 2009.

The court now decides defendant Midyett's second motion to suppress evidence, in which he argues that he was arrested without probable cause on December 10, 2007 and that, as a result, the court should suppress $3,333 in cash and several cellular telephones that were recovered on his person subsequent to that arrest. For reasons set forth below, Midyett's second motion to suppress is denied.

II. THE SUPPRESSION MOTION

A. Midyett's Second Motion

On November 20, 2008, Midyett filed an Affidavit ("Aff."), Notice of Motion, and Memorandum of Law ("Mem."), seeking, in relevant part, suppression of "$3,300 and several cell phones" recovered from his person subsequent to his arrest on December 10, 2007. (Doc. 176, Mem. at 2.)

Midyett's affidavit in support of his motion states that on December 10, 2007, he was walking near the Marcy Houses, a public housing project, at approximately 5:00 p.m. when police officers stopped, handcuffed, and searched him. (Aff. ¶¶ 2-3.) The officers told Midyett they were looking for suspects in a robbery. (Id. at 3.) Midyett saw police officers chasing several other people in the area. (Id. at 4.) Police officers removed "a sum of United States currency and some cell phones" from Midyett's person. (Id. at ¶ 5.) Midyett swears that he was not engaged in criminal activity before the police stopped him on December 10, 2007, and that the police recovered no weapons, drugs, or marked money from him. (Id. at 6.) Midyett argues that the police lacked probable cause to stop, arrest, and search him and therefore acted illegally in arresting him and searching him pursuant to the arrest. Midyett thus asserts that the evidence recovered during the search should be suppressed. (Mem. at 3.)

B. Government Opposition to Midyett's Second Motion

In a Memorandum of Law dated December 4, 2008 (Doc. 190, "Gov. Mem."), the government opposed Midyett's second motion to suppress, asserting that Midyett was arrested with probable cause on December 10, 2007 because, just before Midyett's arrest, an undercover officer of the New York Police Department ("NYPD") bought crack cocaine from Midyett and another individual, Jermaine Simmons, in the lobby of 101 Nostrand Avenue, Brooklyn, a building in the Marcy Houses facility. (Gov. Mem. at 5-6.) The undercover officer informed his fellow officers of the drug purchase and gave a description of Midyett, who was stopped in the rear of another building, 113 Nostrand Avenue, located in the Marcy Houses, within ten minutes of the undercover purchase, and was positively identified by the undercover officer. (Id. at 6.)

C. The Hearing

The court conducted a suppression hearing regarding Midyett's second motion to suppress evidence that the police recovered during his December 10, 2007 arrest.

The hearing relevant to Midyett's second motion was conducted on January 15-16, 2009. The government presented testimony from NYPD Detective Susie Peralta, who works for Brooklyn North Narcotics and arrested Midyett on December 10, 2007, and the undercover police officer who testified that he bought drugs from Midyett ...


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