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United States v. Rios

August 24, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOSE RIOS DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

On June 4, 2009, defendant Jose Rios was indicted for possession of a firearm after having previously been convicted of a felony,*fn1 in violation of 18 U.S.C. § 922(g)(1). He is currently detained pending trial. Presently before this Court is defendant's motion to suppress certain statements and physical evidence pursuant to Rule 12 of the Federal Rules of Criminal Procedure, which was the subject of a hearing held before the undersigned on July 27, 2009. For the reasons set forth below, defendant's motion is denied. What follows sets forth the findings of fact and conclusions of law on which this determination is based.

BACKGROUND

The following facts are drawn from the testimony presented by the government at the July 27, 2009 hearing and the affidavit submitted by defendant, who did not testify at the hearing. Disputes are noted.

On May 2, 2009, the 73rd Precinct's Conditions Team,*fn2 consisting of Police Officers Anthony D'Esposito, Joseph Weldon, Arthur Umlauf, and Sergeant John Portalatin, was assigned to the housing developments in the vicinity of Pitkin Avenue and Junius Street, where there had been a recent spike in robberies. Transcript of July 27, 2009 Hearing ("Tr.") 9-10, 59, 76. Sergeant Portalatin and Officer Umlauf were on bicycle patrol in uniform inside the housing developments, where vehicle access is limited. Tr. 9, 10-12, 59, 75. Officers D'Esposito and Weldon were in uniform in a marked radio motor patrol vehicle parked outside of the housing developments, where they could assist Sergeant Portalatin and Officer Umlauf should any individuals addressed inside the housing developments flee onto the street. Tr. 10-12. Officers D'Esposito and Weldon maintained communication with Sergeant Portalatin and Officer Umlauf via radio. Tr. 10.

Officer D'Esposito testified that on May 2, 2009, at approximately 12:45 p.m., while the patrol car was parked on the corner of Van Sinderen Avenue and Pitkin Avenue, he observed two men on bicycles "come down the handicapped cutout on the corner of Pitkin and VanSinderen, cross in front of the marked [patrol car] and then re-enter the sidewalk on the other side of the street on the same corner, where they proceeded westbound on Pitkin Avenue" down a small hill. Tr. 13, 41. He noted that it was a clear afternoon and that there was nothing obstructing his view at the time. Tr. 13-14. He further testified that, when he first observed the two men on bicycles, they were approximately one car-length away from the patrol car, and that there were no signs in the area authorizing individuals to ride bicycles on the sidewalk. Tr. 13, 16. One of the men was later identified as defendant. Tr. 22. According to defendant, on May 2, 2009, he was obeying all traffic laws when riding the bicycle and was not riding on the sidewalk. Declaration of Jose Rios ("Rios Decl.") ¶ 3.

Upon observing the men on bicycles, Officer D'Esposito radioed Officer Umlauf to inform him that he and Officer Weldon were about to stop the two men to issue them a summons for riding bicycles on the sidewalk. Tr. 14-15, 60, 76. Officer Weldon, who was driving the patrol car, made a right turn onto Pitkin Avenue from Van Sinderen Avenue, heading westbound, in the same direction as the two men on bicycles. Tr. 15. According to Officer D'Esposito, the two men were to the right of the patrol car, about half a car-length in front, riding their bicycles on the sidewalk. Tr. 15. Once the patrol car was about ten feet away from the corner of Pitkin Avenue and Junius Street, Officer Weldon gave a beep of the siren, and Officer D'Esposito asked the two men to stop so that they could speak to them. Id. Officer D'Esposito testified that the time that elapsed between the two men's passage in front of the patrol car and their arrival at the scene of the stop was a "few seconds." Tr. 45. At approximately the same time Officers D'Esposito and Weldon pulled over at the scene of the stop, Sergeant Portalatin and Officer Umlauf arrived at the scene on bicycles. Tr. 21-22, 60, 76-77, 80. Officer Umlauf testified that it took him no more than ten to 15 seconds to arrive on the scene after receiving Officer D'Esposito's radio transmission, and Sergeant Portalatin testified that it took "a few seconds" but could not recall the precise amount of time.

Tr. 63, 80.

Officers D'Esposito and Weldon then exited the patrol car and approached the two men in order to issue them a summons for violating the provision of the New York City Administrative Code generally prohibiting the riding of bicycles on sidewalks.*fn3 Tr. 16-17. Officer D'Esposito testified that, after exiting the patrol car, he approached the defendant, Jose Rios, while Officer Weldon approached the other man. Tr. 21-22. Sergeant Portalatin and Officer Umlauf saw Officer D'Esposito approach the defendant, and Officer Umlauf testified that when he arrived at the scene, the defendant was "straddling [his] bicycle." Tr. 61, 77, 80. Sergeant Portalatin could not recall whether the defendant was on his bicycle when he arrived at the scene. Tr. 64. Officer D'Esposito noted that when he stopped the defendant, the defendant was wearing glasses, a gray hooded sweatshirt which hit "right around his waistband" and jeans that "were not tight but not extremely baggy either." Tr. 23; see also Gov't Ex. 3 (copy of photo of defendant taken at the precinct following defendant's arrest).

Officer D'Esposito testified that when he first approached the defendant, he asked the defendant, who was seated on his bicycle, facing him, to step off of his bicycle for safety reasons. Tr. 21, 25, 27. The defendant complied, stepping off of the bicycle with his left foot first.*fn4 Tr. 25-26. As he swung his "right foot and right leg behind himself to remove himself from the bicycle, it tightened up his jeans," and Officer D'Esposito observed the "L-shape" outline of a gun "pointing down towards his leg" in the defendant's left front pants pocket. Tr. 25-27, 36. At the Court's request, Officer D'Esposito demonstrated how the defendant dismounted from his bicycle and how he was subsequently able to observe the outline of the gun in the defendant's left front pants pocket. Tr. 26-27. Officer D'Esposito acknowledged that he could not determine whether the gun was a revolver or a pistol and that he could not make out the trigger, but also testified that he was able to determine that the item was a gun, and not a wallet, cellular phone or i-Pod, because of its L-shape. Tr. 28, 47-48.

Officer D'Esposito then stated to the other officers, "We may have a possible 265.03,"*fn5 which Officer D'Esposito described as the "code word for us to let the officers on the scene know that we do have a possible firearm . . . [to raise] their awareness . . . that there may a loaded gun on scene." Tr. 28-29.*fn6 Sergeant Portalatin and Officer Umlauf recalled Officer D'Esposito's "265.03" reference and testified that in response, they moved closer to Officer D'Esposito and the defendant. Tr. 29, 61, 78. Sergeant Portalatin positioned himself immediately behind the defendant. Tr. 61-62.

Officer D'Esposito testified that he stepped in front of the defendant, took hold of the defendant's belt buckle, and asked the defendant if he had anything on his person that he was not supposed to have. Tr. 29-30. When asked why he asked the defendant that question, Officer D'Esposito testified as follows:

[I]t is just a practice that we have basically for our safety. You know, it's -- sometimes -- at some point it defuses a situation. If you give the person the opportunity to state what they have on them. It could eliminate wrestling with them on the ground or fighting with them, or worst case scenario, someone getting hurt.

Tr. 30. When asked why he took hold of the defendant's belt buckle, Officer D'Esposito testified as follows:

A: I took hold of the defendant's belt buckle again for the safety of myself and the safety of my team members. It's a practice that we use. It eliminates the chance or reduces the chance of the person that we are engaging with to ...


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