The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Defendant Terry Cross is charged with knowingly possessing marijuana with the intent to distribute, knowingly possessing a firearm in furtherance of a drug trafficking crime, and being a felon in possession of a firearm, in violation of 21 U.S.C. § 841(b)(1)(D), 18 U.S.C. §§ 924(c)-(1) (A)(i), 924(a)(2), 922(g)(1), and 3551 et. seq., respectively. He seeks to suppress his post-arrest statements and $176 that the police recovered from him. He contends that the statements and money were the products of a warrantless arrest without probable cause, thereby violating his rights under the Fourth, Fifth, and Sixth Amendments of the United States Constitution.*fn1
The court held an evidentiary hearing on Cross's motion over the government's objection.
The hearing began on June 10, 2008 and continued on July 24, 2008 and September 23, 2008.*fn2
Officers Edward Babington and Victor Troiano, Detective Jason O'Neill, and Sergeant David L. Rosiak of the New York Police Department ("NYPD") testified for the government. Cross also testified. The police gave inconsistent accounts of the circumstances surrounding Cross's arrest. Their accounts also conflicted with defendant's account. It falls to this court to assess the credibility of the witnesses. See, e.g., United States v. Yousef, 327 F.3d 56, 124 (2d Cir. 2003) (citations omitted). For the reasons set forth below, the court cannot credit the testimony of the police. The court credits Cross's statements regarding the events immediately surrounding his arrest on August 23, 2007. As a result, the court finds that the police did not have probable cause to arrest Cross. Accordingly, the motion to suppress is granted.
On August 23, 2007, officers from Police Service Area 2 ("PSA 2") of the NYPD executed a search warrant for 551 Warwick Street in Brooklyn, New York, issued by a Justice of the Kings County Supreme Court. Earlier that August, the police, through the CI, had arranged three controlled purchases of marijuana from that address. The scope of the search warrant was confined to the premises of the address and to anyone seen entering or leaving it. It did not specify Cross or any other individual by name or description. Inside the home, the police found a small bag of marijuana and five rounds of ammunition. In the backyard adjacent to the backyard of 551 Warwick Street, the police discovered a gray plastic bag containing a KBI Makarov 9x18 semi-automatic pistol, some scales, and more marijuana. While executing the search warrant, the police arrested Cross several houses away, on Ashford Street, which runs parallel to Warwick Street. (See Def. Ex. A (Google Map and satellite photo of the area around 551 Warwick Street).) The government contends that the police had probable cause to apprehend Cross because the CI had identified Cross as the marijuana dealer at 551 Warwick Street through a photo-array identification. Additionally, the government claims that Babington and Troiano's observations during the execution of the search warrant provided independent probable cause for the arrest. Defendant argues that the government has failed to establish that the photo-array identification had occurred. Additionally, he questions the veracity of Babington, Troiano, and Rosiak's testimonies regarding the execution of the search warrant.
A. The Government's Account
Babington testified that the investigation of this case began when the CI approached and informed him that an individual with a firearm was selling marijuana from 551 Warwick Street. (Tr. at 23.) The police made three controlled buys of marijuana at that location in $50 increments. (Tr. at 24-25.) Babington said the CI identified the seller as "T or Terry" and pointed to Cross's picture in a photo array. (Tr. at 24-26.) Babington's application for the search warrant did not mention Cross or the photo-array identification. (See Ex. B to the Gov't June 17, 2008 Letter.)
Babington was among the fifteen or more officers who executed the "no-knock" search warrant on the morning of August 23, 2007. (Tr. at 45.) He and Troiano stood in front of the two-story brick townhouse and handled "front-window security" while a team from the Emergency Services Unit ("ESU") attempted to open the front door. (Tr. at 27-28.) Babington and Troiano were responsible for monitoring the front windows of the townhouse for possible threats to the ESU team. (Tr. at 28.) As they waited, Babington recalled hearing a bang in the backyard and some dogs barking, so he directed Troiano to investigate. (Tr. at 32, 51.)
Troiano testified that he did not recall hearing noise from the back or being directed by Babington to investigate the backyard. (Tr. at 115-16.) He said he went around to observe the rear of the house when it appeared that the ESU team was having trouble opening the front door. (Tr. at 116.) The townhouses along Warwick Street are attached, with chain-link fences dividing each lot. (Tr. at 109-110; see also Def. Ex. A.) Therefore, in order to walk behind the row of houses, Troiano had to walk to the end of the row, turn left onto a private driveway, and enter into another backyard. (Def. Ex. A.) He testified that, from there, he could see, without the aid of binoculars, through several fenced yards into the backyard of 551 Warwick Street. (Tr. at 110-11.) Waist-high bushes and six-foot chain-link fences separating the backyards partially obstructed his view. (Tr. at 104-106.) Troiano, who is five feet eight inches tall, did not stand on a trash can or climb onto one of the fences. (Tr. at 111.) Through the layers of chain-link fences, he allegedly saw a man in the backyard of 551 Warwick Street. Troiano described that man as about six feet tall, wearing a knit cap and brown sweatshirt. (Tr. at 104.) He could not see the man's facial features but described him as looking very "antsy" and nervous. (Id.) He saw the man make "an upward motion with his arm" toward the back corner of the yard but could not tell what was in the man's hands because of the bushes that obstructed his view. (Tr. at 105.) Then, the man began to move north, further away from Troiano, by jumping across the fences of other backyards behind the homes on Warwick Street. (Tr. at 106.) At some point, the man turned eastward toward Ashford Street.
Troiano radioed his observations to Babington, who then headed north on Warwick Street toward Sutter Avenue. (Tr. at 33.) When Babington heard that the man had turned east toward Ashford Street, he too turned east on Sutter Avenue and then turned north onto Ashford Street. (Tr. at 54-55.) Babington then proceeded to "walk" down the block and saw a male, fitting the description that Troiano provided, appear from a driveway. (Tr. at 55.) The man was out of breath, sweaty, and appeared nervous. (Tr. at 34.) Babington asked the man to give his name and where he was coming from. "Terry," the man responded, and motioned with his head as if he had come from the back of the home. (Id.) Babington then asked for and received the man's identification, a New York State driver's license, indicating that he was Cross. (Tr. at 35.) He then ordered Cross to turn around and handcuffed him. (Id.) Babington testified that he arrested Cross because: (1) he recognized Cross from the CI's photo identification; (2) Cross matched the description of the individual fleeing from 551 Warwick Street; and (3) Cross did not give a good reason for his presence in the driveway. (Id.)
Babington testified that, as he made the arrest, Rosiak and Officer Velez pulled up in a car, and Cross was placed in that car. (Tr. at 36, 37.) Later, Babington identified the car as an unmarked gray minivan. (Tr. at 61, 210.) Babington testified that, after dropping Cross off at 551 Warwick Street, he retraced Cross's steps to a fence and saw more footprints on the other side leading to another fence. (Tr. at 36, 64.) Babington said that, before returning to the precinct with Cross, they first drove to the front of 551 Warwick Street. (Tr. at 37, 62, 65, 211.) Cross said that he did not live at that house but was just watching the residence for a friend, and that only the items on the back table belonged to him. (Tr. at 37-38.) Babington went inside the house and recovered twenty-three ziplock bags of marijuana and several rounds of ammunition. (Tr. at 40, 68.) In a neighbor's backyard directly behind the residence, he recovered two bags, one containing a large bag of marijuana and the other containing a loaded firearm, more marijuana, some scales, and packaging. (Tr. at 40-41.) The government separately represented that the search of the house also uncovered an electricity bill addressed to Cross at 551 Warwick Street, but the police did not seize it. (Gov't Feb. 19, 2008 Resp., at 6 n.1.)
Rosiak gave a somewhat different account. Before ESU attempted to gain entry, he assigned two officers in a van to guard the Ashford Street side of the block. (Tr. at 181.) When Babington headed north on Warwick Street, he and Velez drove south in a squad car, turned left onto Blake Avenue, and then turned left again onto Ashford Street, where Babington was arresting Cross. (Tr. at 183.) Rosiak asked Cross where he had come from. Cross replied that he had been buying loose cigarettes. (Tr. at 185-86.) Babington does not remember this exchange. (Tr. at 210.) Then, according to Rosiak, Cross was placed into the van on Ashford Street and taken "straight" to PSA-2. (Tr. at 188-89.) Rosiak said he was "a hundred percent sure" of this fact when asked by the government on redirect. (Tr. at 190.) He also mentioned that a female police officer, in addition to Velez and Babington, also rode in the van. (Tr. at 183.)
The government's 3500 materials contain an inventory report completed by Troiano, which indicates that $176 in cash was recovered from Cross. Troiano denies ever having searched Cross. (Tr. at 142.) Rosiak testified that Babington searched Cross at the time of the arrest but "no contraband or anything to that effect" was recovered. (Tr. at 188.) When confronted with this inconsistency, Babington explained, "Troiano was the main inventory officer. So maybe when I filled out this form I incorrectly put his name down.... Probably just a mistake." (Tr. at 213.)
After the police brought Cross to the station, O'Neill interviewed him. O'Neill testified that, at the outset of the interview, he explained to Cross his Miranda rights. O'Neill then showed Cross a Miranda waiver sheet. (Tr. at 76.) The sheet contains questions for confirming that a defendant waived his or her rights to remain silent and have attorney representation. (Tr. at 76; see also Gov't Ex. 4.) Cross wrote "yes" and his initials next to each question. Cross then orally confessed that he was a low-level drug dealer who the police awakened that morning. (Tr. at 79-80.) He fled through the back door, tossed the marijuana and firearm over the fence, and was then arrested on the ...