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United States v. Lucky

June 19, 2009



Defendant Damon Lucky ("Defendant") was arrested following a brief stop of a car that matched the description of a vehicle used in a drive-by shooting. Following a pat down, police officers found a weapon in his possession, and he was arrested and later convicted of being a felon in possession of a firearm. Defendant appeals the admission of the weapon, a possible Speedy Trial Act violation, the fact that jury selection occurred without his presence, and the constitutional basis for criminalizing felon possession of a firearm. The judgment of the district court is AFFIRMED.

The opinion of the court was delivered by: Calabresi, Circuit Judge

Argued: April 24, 2009

Before: CALABRESI, KATZMANN, Circuit Judges, EATON, Judge.*fn1


I. Investigation, Stop, Search, and Arrest*fn2

A firefighter witnessed a shooting on a street corner in Brooklyn and reported to the New York Police Department ("NYPD") that he had seen a black male, who was 5'6" tall, fire several shots at a crowd of people and flee in a dark sport utility vehicle ("SUV") with New York State license plate number DBM 2474. Two days after the shooting, a group of police officers patrolling the same area saw a dark SUV with New York license plate number DBM 2474, which they recognized from the report of the shooting. The officers briefly followed the SUV, confirmed with the local police precinct that the NYPD was still searching for that vehicle, and pulled it over. At the time, the police officers did not recall from the report of the shooting that the suspect was 5'6" inches tall; nor did they seek to get more details about the suspect.

The SUV's windows were darkly tinted and the police officers could not see inside. Officers approached the driver's side and asked the driver, Defendant Damon Lucky, to roll down the windows and show his hands. After some resistance to police requests, officers opened the driver's side door and asked Defendant to step out of the vehicle. Defendant refused to do so, officers repeated the order, Defendant refused again, and the officers pulled him from the car. As officers removed Defendant from the SUV, Defendant moved his right arm, "pull[ing] down towards the front" as if reaching for his waist band. Officers placed Defendant on his stomach and handcuffed him. At this point, it was clear that Defendant was not 5'6" tall, but was much taller. The officers then rolled Defendant over, onto his back, and as they did so, Defendant's jacket "opened up a little bit" allowing police to see a gun tucked into his wasteband. Police placed Defendant under arrest and recovered a fully-loaded 9-millimeter semi-automatic handgun from his waistband.

II. Pretrial Period

Defendant was indicted for being a felon in possession of a firearm. He was arraigned on the indictment on January 26, 2005, and a magistrate judge entered an order of excludable delay until February 23, 2005, the date of the initial status conference before the District Court. At a series of status conferences, the District Court entered orders of excludable delay, stating that it was in the interests of justice and with the consent of the parties.

At a status conference on May 19, 2005, defense counsel reported that it had not yet considered the possibility of a plea bargain because Defendant's "main focus" had been on "trying to put together a bail package." The District Court then referred Defendant's bail application to a magistrate and said that it would "exclude" the time until June 23, 2005, the next scheduled status conference, for plea negotiations. There was no statement that the exclusion was in the interests of justice. At the June 23, 2005 status conference, defense counsel reported that a plea bargain was unlikely, and "it appears that this case is headed towards trial."

III. Suppression Motion

Defendant moved to suppress the handgun that police officers recovered during the traffic stop. The District Court denied the motion. The court found the police officer's testimony to be credible and reasoned that once police officers saw an SUV matching the description of the vehicle involved in a recent shooting with the same license plate number, they were justified in conducting a brief stop. The court then explained that the police officers behaved reasonably in asking the occupants of the car to step out of the vehicle, "where the basis for the stop is a shooting that had occurred . . . with respect to that vehicle two days before," and ...

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