The opinion of the court was delivered by: John Gleeson, United States District Judge
The defendant Laron Irving moves to suppress a gun seized from him when he was arrested on July 9, 2009. He also seeks to suppress statements he made the next morning while in custody. For the reasons stated below, the motion is granted.
Based on an evidentiary hearing held on November 9, 2009, I find the following facts.
On the evening of July 9, 2009, Police Officers Robert Frank and Emrah Ates, together with Sergeant Diana Pichardo, all of the New York Police Department, were conducting a routine patrol of New York City Housing Authority buildings in South Brooklyn in an unmarked car. Tr. 6.*fn1 At about 10 p.m., the officers received a call from Pichardo's supervisor relaying a noise complaint about some unruly youths at the Nautilus Playground, a park situated between the Coney Island Houses and the Coney Island boardwalk. Tr. 7, 101.
The officers responded to the call. When they arrived, they turned their vehicle onto a walkway running along the length of the park, outside of the park but very close to the park fence.*fn2 Tr. 31, 39. The only youths the officers observed were a group of children who appeared to be about nine or ten years old. Tr. 7. As the officers continued driving slowly along the walkway, they noticed a man and woman in another part of the playground. Tr. 7, 39. The couple aroused the officers' suspicions because they were in the park after dark without children.
Tr. 8, 136, 170-71. Nevertheless, the officers did not immediately stop. Tr. 38. Instead, they circled around the entire housing project, then returned to the park, parked their car, and walked to the area where they had seen the man and woman. Tr. 38. They found the pair seated at a child-sized picnic table beneath a jungle gym built to resemble a ship. What followed is disputed, but within less than a minute of their arrival, the officers, who were in plainclothes, identified themselves as police and arrested both the man, Laron Irving, and the woman, Angelica Mann. Tr. 5, 46, 125-26, 156, 167. The officers searched both of them at the scene. Tr. 172-73. They found nothing on Mann, but Officer Ates discovered a loaded .38 caliber revolver in Irving's waistband. Tr. 127-28.
The officers took Irving and Mann to the stationhouse, where Mann was searched again and Irving was searched two more times. Tr. 29-30. Nothing of note was seized from them at that time. Tr. 51-53. While there, Frank filled out forms documenting the arrest, in which he stated that a gun and six small bags of marijuana had been found on Irving when he was arrested in the park and another bag of marijuana was found on the ground, where Irving had dropped it. Tr. 79-80. Irving was held in custody overnight. Tr. 68. The following morning, he made a statement admitting possession of the gun to Officer Frank and another police officer who was not present at his arrest. Tr. 20-23.
The officers arrested Irving without a warrant. A warrantless arrest violates the Fourth Amendment unless it is supported by probable cause. "Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested." United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990) (citing Brinegar v. United States, 338 U.S. 160, 175-76 (1949)). "While probable cause 'requires only a probability or substantial chance of criminal activity, not an actual showing of such activity,' mere suspicion is not enough." United States v. Valentine, 539 F.3d 88, 93 (2d Cir. 2008).
It is the prosecution's burden to establish probable cause to arrest by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 178 n. 14 (1974). Deciding whether that burden has been met is not a mechanical, quantitative exercise; rather, the result turns on whether the trier of fact has been persuaded, even if only by the tiniest margin, that the requisite facts have been established. See In re Winship, 297 U.S. 358, 367-68 (1970) ("[T]he preponderance test is susceptible to the misinterpretation that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted."); see also Christopher B. Mueller & Laird C. Kirkpatrick, 1 Federal Evidence § 3:5 (4th ed. 2009) ("What counts, of course is not volume of evidence, but quality - not how many witnesses or how long they testify, but how persuasive their testimony.").
Here, the government first contended that there was probable cause to arrest Irving for possessing marijuana. When the evidence in support of that claim unraveled at the hearing, the government advanced for the first time an alternative claim -- that there was ...