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United States of America v. Steven Torres

June 7, 2011

UNITED STATES OF AMERICA
v.
STEVEN TORRES,
DEFENDANT.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

MEMORANDUM OPINION AND ORDER

The defendant, Steven R. Torres, has been indicted on one count of violating 18 U.S.C. § 922(g) for possessing a firearm after having been convicted of a felony. He moves to suppress a firearm that was seized on September 21, 2010 at the time of his arrest. The Court held an evidentiary hearing on March 11 and March 23, 2011. Having assessed the credibility of the witnesses and considered the exhibits presented by the parties, the Court now makes the following findings of fact and reaches the following conclusions of law.

I.

A.

The information that the arresting officers had on September 21, 2010 included information that two of them had obtained as a result of a June 1, 2010 arrest of the defendant.

On June 1, 2010, New York Police Department ("NYPD") Officers Stephanie Cepeda and Juan Pacheco, while on duty, were informed of a domestic violence report that had been filed earlier in the day. (Tr. 5-6.) They were told that the complainant reported, among other things, that her boyfriend had threatened to kill her, that he kept a firearm in a dashboard compartment in his car, and that the compartment was disguised as a speaker. (Tr. 5-6.) The officers were given a physical description of the defendant. (Tr. 5-6.)

While on patrol that day, Officers Cepeda and Pacheco saw a car fitting the description they were given near the intersection of Southern Boulevard and Longwood Avenue. (Tr. 6-8.) They stopped the car near the stationhouse and pulled the defendant out of the vehicle, at which time they saw a gravity knife in plain view in an open console between the driver's and passenger's seats of the car. (Tr. 8-9.) Officer Cepeda then went into the stationhouse to review the domestic violence report. (Tr. 9.) The report contained a report by the officer who took the statement of the complaining victim ("C/V"), as well as the statement of the complainant herself.

The officer reported: "C/V states perp[etrator] has a history of being violent and she is fearful that perp stated he is going to shoot her. Perp has a gun and threaten[ed] to use it on her and child and family. . . . C/V states perp has the gun in his car. Acura gray in color. C/V also states the gun is in a hidden compartment that looks like a speaker." (Tr. 15; GX 161 at 1.) The statement by the complainant read: "I am afraid he will hurt me and my daught[er] if he goes to get her. He said he [would] rather see us dead before I have the baby. He said I have 24 hours to call him if not my family is going to get hurt. He has a firearm. Gray 4 door Acura with rims. On the dashboard there's a compartment that looks like a speaker. It opens and it's in there." (Tr. 16; GX 161 at 2.)

The report identified the suspect as Steven Torres, which matched the name of the individual Officers Cepeda and Torres had stopped outside. (Tr. 16.) Officer Cepeda went back outside and told Officer Pacheco that they had the right person and they placed the defendant under arrest. (Tr. 16-17.)

After the car was driven to the precinct house, Officer Cepeda searched the compartment under the speaker cover on the dashboard, which she found as described in the domestic violence report, but she did not find a firearm. (Tr. 17, 60.) The pictures of the compartment introduced at the hearing indicate that the compartment was in fact modified and could be used for storing a weapon. (GX 115, 179, 180.)

Officer Cepeda also reviewed the defendant's arrest history, which indicated numerous arrests including arrests for violent felonies. (Tr. 20-22; GX 47.)

Office Cepeda spoke to the complainant at the stationhouse later that day. (Tr. 18.) When Officer Cepeda said that she had not found the gun in the car, the complainant consented to a search of the residence she shared with the defendant and signed a written consent. (Tr. 18-19; GX 213.)

Later that same day, Officers Cepeda and Pacheco searched the residence shared by the defendant and the complainant. They recovered, among other items, an imitation starter pistol that resembled a real gun, a gun holster, and a police baton. (Tr. 19-20; GX 218.) The complainant told Officer Cepeda that the imitation starter pistol was not the firearm that she had described in her domestic violence report. (Tr. 20.)

On June 2, 2010, Officer Cepeda executed a complaint against the defendant in Bronx Criminal Court. (GX 3501-J.) The complaint charged the defendant with three counts of criminal possession of a weapon in the fourth degree, based on the gravity knife found in the car and the police baton and imitation pistol found in the apartment, as well as a count of unlawful sale, possession, or use of an imitation pistol. (GX 3501-J.) On September 2, 2010, Officer Cepeda executed a superseding complaint changing one of the criminal possession of a weapon charges to a firearms charge based on the determination that the pistol was an air pistol and omitting the charge relating to the baton. (Tr. 64; DX A.)

Neither Officer Cepeda nor Officer Pacheco had any further encounter with the defendant until September ...


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