The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:
MEMORANDUM OPINION & ORDER
Defendant Saul Olavarria is charged with violating the felon-in-possession statute, 18 U.S.C. § 922(g)(1). During a traffic stop in the Bronx on February 20, 2009, New York City police ("NYPD") officers recovered a loaded firearm from Defendant's person. The Defendant has moved to suppress the firearm and all other evidence recovered after the traffic stop, arguing that its seizure violates the Fourth Amendment. (Dkt. No. 4) The Government now concedes that the initial stop of Olavarria's vehicle was unconstitutional, but argues that the defendant's resistant conduct after the stop attenuated the connection between the unlawful traffic stop and the seizure of the firearm. For the reasons stated below, Defendant's motion to suppress will be granted.
Shortly after Olavarria's arrest, a criminal complaint was filed against him in Supreme Court of the State of New York, Bronx County, charging him with criminal possession of a weapon and resisting arrest. Olavarria filed a motion to suppress the firearm, and a hearing was scheduled for October 6, 2009. (Dkt. No. 4, Ex. A) On September 9, 2009, however, the U.S. Attorney's Office in this District obtained an indictment charging Olavarria with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and the Bronx County District Attorney subsequently moved to dismiss the state charges against Olavarria.
The Defendant filed his motion to suppress in this action on November 20, 2009 (Dkt. No 4). The motion sought suppression of a firearm and other tangible evidence alleged to have been seized from Mr. Olavarria after officers of the New York [City] Police Department gun squad improperly and without probabl[e] cause or any other legitimate basis, stopped the vehicle registered to and driven by Mr. Olavarria. (11/20/09 Def. Br. 1) The Government's opposition brief argued that the traffic stop of the defendant was lawful because "the officers had probable cause to believe that the defendant [had] committed a traffic violation, namely driving with a defective brake light, justifying the stop of Olavarria's car." (12/2/09 Gov't Br. 6) The Defendant then submitted a declaration asserting that the brake light in question -- a center brake light on his sport utility vehicle -- was not defective at the time of the stop. (12/10/09 Olavarria Decl. (Dkt. No. 8) at ¶ 10) This Court concluded that a hearing was necessary to resolve this factual dispute.
The parties disagreed as to the appropriate scope of the hearing, however. The Defendant argued that "the scope of the motion to suppress and the evidentiary hearing is not limited to the vehicle stop but extends to all the factual circumstances surrounding the vehicle stop, the search of the vehicle, the search of Mr. Olavarria and the seizure of the firearm and related factual circumstances." (2/25/10 Def. Ltr. 2) The Government contended that Olavarria had raised a material issue of fact only as to the basis for the stop of his vehicle, and that the hearing should be limited to evidence concerning that issue. (2/24/10 Gov't Ltr. 2) Because the Defendant's declaration asserted only that his "vehicle did not have a defective brake light during the time [he] was driving it on February 20, 2009," (12/10/09 Olavarria Decl. (Dkt. No. 8) at ¶ 10), this Court accepted the Government's argument and ruled that the evidentiary hearing would be limited to whether the stop of Olavarria's vehicle was proper.*fn1 (3/2/10 Tr. 10) The parties then offered evidence over four days of hearings between March 2, 2010 and June 9, 2010. (See 3/2/10 Tr.; 3/10/10 Tr., 4/19/10 Tr.; 6/9/10 Tr.)
On July 23, 2010, after the close of the testimony, this Court issued an order (1) noting the Government's contention that the allegedly defective center brake light on Olavarria's vehicle constituted a traffic violation; and (2) directing the Government "to supply the Court with the relevant citation to New York vehicle and traffic law supporting this contention by July 30, 2010." (Dkt. No. 30) The Government sought additional time to respond (Dkt. No. 32), but in an August 18, 2010 letter, the Government conceded that the defendant's defective center brake light did not violate any provision of New York Vehicle and Traffic Law. (8/18/10 Gov't Ltr.) In a September 9, 2010 brief, the Government further conceded that "the Officers' stop of the defendant's vehicle on February 20,  on the basis that the defendant committed a traffic violation was an improper stop." (9/9/10 Gov't Br. 6)
The Government contended that suppression was not warranted, however, because "the defendant's conduct following the stop of his vehicle sufficiently attenuated the discovery of the loaded firearm from the initial impermissible traffic stop and thereby dissipated any taint resulting from the impermissible stop." (Id.) Reversing course as to the appropriate scope of an evidentiary hearing, the Government requested that the Court reopen the hearing to allow testimony regarding the Defendant's conduct after the stop of his vehicle. (9/9/10 Gov't Br. 1)The Court granted the Government's request (9/16/10 Tr. 11),and additional testimony was received on October 22, 2010, concerning the Defendant's conduct after the stop of his vehicle. (10/22/10 Tr.)
The parties then submitted additional briefing addressing whether Defendant's conduct after the vehicle stop sufficiently attenuated the connection between the unlawful stop and the seizure of the firearm such that admission of the firearm would not violate the Fourth Amendment.
II. THE SUPPRESSION HEARING TESTIMONY
During the suppression hearing, the Government called three police officers who were present at the scene: Lieutenant Edward Barry, Detective Robert Dunsing, and Officer Leo Nugent. The police officers' testimony addressed both the vehicle stop and the events that took place after the stop.
Olavarria did not testify, but called two witnesses who were passengers in his car that night: Terrence Williams and Gilbert Colon. Because these witnesses were called during the first phase of the suppression hearing -- when the Government was contending that Olavarria had committed a traffic infraction -- their testimony concerns primarily pre-stop events.
During the hearing, it was undisputed that the encounter between the officers and the Defendant leading to discovery of the firearm took place over a period of about five minutes. (10/22/10 Tr. 50 (Dunsing) ("Q: Detective Dunsing, from the time that you initially approached the defendant's vehicle until you recovered the gun, approximately how long did the entire encounter take? A: Approximately five minutes."); 10/22/10 Tr. 77 (Nugent) ("events . . . happened very fast"); see also 1/29/11 Gov't Br. 9, 14 (stating that the officers and Olavarria had a "five- minute interaction")) Lieutenant Barry and Detective Dunsing are assigned to the NYPD's Bronx Gang Unit. During the evening of February 20, 2009, they were patrolling the 40th Precinct in an unmarked police vehicle. (3/2/10 Tr. 11-14) At about 6:00 p.m., near 149th Street and Morris Avenue, both officers observed a Jeep with a defective center brake light. (Id. at 13-15) The officers activated their dome light and followed the Jeep until its driver pulled over near 142nd Street and Morris Avenue. (Id.)
Detective Dunsing approached the driver's side of the vehicle while Lieutenant Barry approached the passenger side. (10/22/10 Tr. 3, 80-81 (Nugent); 4/19/10 Tr. 9 (Martinez)) The vehicle had three occupants. Olavarria was in the driver's seat; Colon was in the front passenger seat; Terrence Williams was in the rear seat. (10/22/10 Tr. 79 (Nugent); 4/19/10 Tr. 11 (Williams)) Dunsing asked Olavarria for his license, which Olavarria produced. (3/2/10 Tr. 30-31 (Dunsing);4/19/10 Tr. 9, 12 (Martinez))
Dunsing testified, however, that Olavarria's demeanor was "belligerent" and "boisterous" and that although he instructed Olavarria to keep his hands on the steering wheel he repeatedly removed them to "pat the top of his body." (10/22/10 Tr. 4, 6 (Dunsing)) Accordingly, Dunsing instructed Olavarria to get out of the car so that Dunsing could conduct a pat-down search. (Id. at 5; 4/19/10 Tr. 9, 12 (Martinez)) Olavarria got out of the car, but because he was "very combat[ive]," Detective Dunsing instructed him to get back into the car. Olavarria obeyed. (10/22/10 Tr. 25, 5 (Dunsing))
Two additional police officers then arrived, responding to a call from Lieutenant. Barry. (Id. at 7) Detective Dunsing instructed Olavarria to step out of the car a second time. (Id. at 9) Olavarria complied, but his "right hand went to his front right pocket," where Dunsing had observed a bulge. (Id. at 9-10) At that point, Detective Dunsing reached for the bulge ...