The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
Defendant Lamont Kareem Jackson ("Jackson") was charged in a one-count indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On August 8, 2010, an individual called 911 to report that a man possessed a gun near the intersection of East 180th Street and Southern Boulevard in the Bronx ("the Location"). Four officers from the New York City Police Department ("NYPD") responded to the Location. Three of the officers stopped Jackson, the fourth recovered a gun from a book bag located near him, and the officers placed Jackson under arrest. Jackson now moves to suppress physical evidence recovered and statements made at the time of his arrest.
For the reasons stated herein, we grant Jackson's motion to suppress.
On February 17, 2011, March 16, 2011, and March 18, 2011, this Court held an evidentiary hearing with respect to Jackson's motion to suppress ("Suppression Hearing").*fn1 The Government and Jackson submitted briefing prior the Suppression Hearing, advanced oral arguments at the Suppression Hearing, and filed written submissions following the hearing.
The four officers who responded to the Location testified on behalf of the Government at the Suppression Hearing. No witnesses testified on behalf of the defense but Jackson submitted two declarations in support of his motion to suppress. Accordingly, the following facts are derived from the testimony at the hearing, the exhibits introduced at the hearing, and Jackson's declarations.*fn2
At approximately 2:19 p.m. on Sunday, August 8, 2010, an unknown female ("Caller") placed a call to 911 to report that there was a man in possession of a gun at the Location. In response to a series of questions from the 911 operator, the Caller described the individual as a Hispanic, light-skinned male, with a medium build, dark brown hair, and who appeared to be 19 or 20 years old. The Caller also stated that the individual was wearing a red hat, a white t-shirt, and blue jeans, and that he was carrying a black book bag.
According to the Caller, the subject of the tip was part of a group of five males: two Hispanic males and three black males, each of whom appeared to be 19 or 20 years old. The Caller reiterated that "the one with the gun has a black book bag on, that's what distinguishes him from everybody." The Caller also speculated that the young men might be affiliated with a gang.
The Caller informed the 911 operator that she wished to remain anonymous. When asked whether the police could call her back, the Caller agreed. However, the Caller did not know her telephone number and was unable to provide it to the 911 operator. Nevertheless, the Caller's telephone number was automatically recorded by the 911 call center. (GX-2 (SPRINT Report); GX-7 (Audio of 911 Call).)
The 911 operator relayed the Caller's tip to an NYPD radio dispatch officer. The dispatch officer, in turn, communicated to other NYPD officers that there was a man with gun at the Location and repeated the description that was provided by the Caller.
Shortly thereafter, the NYPD radio dispatch officer called the number that had been traced to the Caller's telephone. Although another individual initially answered the telephone, the Caller picked up the phone soon after and confirmed that she had indeed called 911. The Caller further specified that the man was in front of 820 East 180th Street, a building near the southwest corner of East 180th Street and Southern Boulevard. (GX-8 (Audio of Radio Dispatch).)
As noted above, four NYPD officers testified on behalf of the Government: Officer John Hubbard ("Hubbard"), Officer James Eirand ("Eirand"), Officer Christopher Woulfe ("Woulfe"), and Lieutenant Jennara Cobb ("Cobb"). The testimony of Officers Hubbard, Eirand, and Woulfe are generally consistent with one another and form the basis of the Court's factual findings. By contrast, the testimony of Lieutenant Cobb differs in material respects from the testimony of her colleagues, and we reject certain portions of her testimony, as further discussed herein.
1. Officer Hubbard's Testimony
On August 8, 2010, Hubbard was in uniform and was driving a marked vehicle in the Bronx. Lieutenant Cobb, who was also in uniform, was the passenger in Hubbard's vehicle. (Tr. 31-32.)
At approximately 2:20 p.m., Hubbard received a radio dispatch regarding a man with a gun at the Location. According to Hubbard, the radio dispatch described the subject as a light-skinned male with a medium build, who was wearing a red hat, a white shirt, and blue jeans. Hubbard recalled the NYPD radio dispatch officer stating that the subject was part of a group of male blacks and male Hispanics. (Tr. 33.)
After hearing the radio dispatch, Hubbard drove southbound on Southern Boulevard toward the Location. (Tr. 42-43.) Within a block of the Location, Hubbard observed a number of individuals. First, Hubbard viewed two males walking northbound on the western side of Southern Boulevard. One of the individuals was a Hispanic male who was wearing a red hat and a white shirt. According to Hubbard, the two males were approximately thirty to forty feet north of the intersection and the Hispanic male with the red hat was looking back toward the intersection. (Tr. 43-47.) Second, as Hubbard continued driving southbound, he observed Jackson standing in a bus enclosure, which was located a few feet north of the northwest corner of the intersection. Jackson, an African-American male, was wearing a red hat, a white t-shirt, and blue jeans. (Tr. 43-47; D. Reply Decl. ¶ 4; GX-1 (map).) Hubbard testified that Jackson was not holding a black book bag at the time. (Tr. 45, 65.) Third, Hubbard spotted two males walking southbound across the intersection. One of the individuals was a heavy-set, Hispanic male who was wearing a white shirt and a red hat. These two individuals ultimately entered 820 East 180th Street, the building identified by the Caller. (Tr. 43-47.)
Hubbard testified that when he approached the Location, he made a right turn onto East 180th Street, then made a quick U-turn, and parked the vehicle so that it was facing eastbound. (Tr. 48-50.)
Hubbard exited the vehicle and walked toward Jackson, who was standing in the bus enclosure. Hubbard continued around the rear of the bus enclosure, and Lieutenant Cobb, who had also exited the vehicle, walked toward the front of the bus enclosure. (Tr. 50-53, 65-67.) According to Hubbard, when he approached the bus enclosure, Jackson did not have a bag. (Tr. 50-51, 53.) Additionally, Jackson made no effort to leave the scene or run away. (Tr. 70.)
When Hubbard reached Jackson, Hubbard placed his hands on Jackson.*fn3 He then told Jackson to walk toward the wall of a building, which was located approximately 15 feet northwest of the bus enclosure. (Tr. 51-53.) Although Hubbard testified that he was the first officer to stop Jackson, he noted that Officer Eirand and Officer Woulfe had arrived at the Location, exited their vehicle, and placed their hands on Jackson at approximately the same time as Hubbard did. (Tr. 52-53.) Prior to the approach, none of the officers said anything to Jackson. (Tr. 51.)
After Hubbard, Eirand, and Woulfe placed Jackson against the wall of the building, Hubbard turned around and saw that Lieutenant Cobb was standing approximately three to five feet away from him. Lieutenant Cobb was holding a black bag and simply stated: "Gun." (Tr. 53-54, 67-69.) Hubbard testified that he had not observed the bag before Lieutenant Cobb raised it and indicated that there was a gun inside. (Tr. 53.) Jackson then looked over his left shoulder, toward Lieutenant Cobb, and began to repeat: "that's not my bag, that's not my bag." (Tr. 53-54, 67-69.)
After Lieutenant Cobb indicated that she had recovered a gun, the officers placed Jackson under arrest. (Tr. 53.) The time was approximately 2:31 p.m, or twelve minutes after the initial call to 911. (GX-2.)
2. Officer Eirand's Testimony
Officer Eirand testified that, on August 8, 2010, he was in uniform and was driving a second marked vehicle in the Bronx. Officer Woulfe, who was also in uniform, was the passenger in Eirand's vehicle. (Tr. 5-6.)
At approximately 2:15 or 2:20 p.m., Eirand heard a radio dispatch regarding a man with a gun at the Location. Eirand testified that the NYPD radio dispatch officer described the subject as a male Hispanic, with a medium build and black hair, and who was wearing a red baseball cap, a white shirt, blue jeans, and a black bag. (Tr. 6-8.)
After hearing the tip, Eirand drove southbound on Southern Boulevard toward the Location. Eirand parked the vehicle on the west side of Southern Boulevard, roughly in front of the bus enclosure. (Tr. 9.) According to Eirand, both police vehicles arrived at the intersection at approximately the same time, but Lieutenant Cobb exited her vehicle approximately 10 to 15 seconds before Eirand or Woulfe exited their vehicle. (Tr. 13-14.)
Eirand testified that he observed Jackson standing approximately one foot northwest of the bus enclosure. According to Eirand, although Jackson was black and the subject was described as a light-skinned Hispanic, Jackson was wearing a red hat, a white shirt, and blue jeans, which was consistent with the tip. (Tr. 10-13.) Like Hubbard, Eirand testified that he did not see Jackson holding a bag at any time.*fn4 (Tr. 13-14.)
According to Eirand, with the help of Officers Woulfe and Hubbard, he then stopped Jackson. The three officers moved Jackson five or ten feet to the wall of a building located to the west of the bus enclosure and then patted Jackson down. (Tr. 15-17, 25.) Eirand testified that he did not recall any officer saying anything to Jackson prior to the stop. (Tr. 15, 25.) Rather, Eirand testified that the officers simply approached Jackson and patted him down. (Tr. 25.)
Jackson did not say anything prior to the stop, nor did Jackson say anything "right away" after the officers stopped him. (Tr. 15.) However, shortly after the stop, Eirand turned his head and observed Lieutenant Cobb holding a book bag. Jackson also turned around, observed Lieutenant Cobb holding the bag, and began to repeat: "that's not my bag. That's not my bag." (Tr. 16.) ...