The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
Defendant Devon Bristol ("Bristol") is charged with possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). (Compl. (Docket Entry # 1); Indictment (Docket Entry # 6).) Bristol was arrested when three police officers stopped a car in which he was a passenger and conducted a search of his person, during which they recovered a firearm. Bristol has moved to suppress the firearm, all post-arrest statements, and any other evidence obtained by police upon his arrest, arguing that both the vehicle stop and the subsequent search of his person violated his Fourth Amendment rights. (Docket Entry # 11.)
After additional briefing by both parties (Docket Entry ## 13, 14), the court conducted a suppression hearing on this issue on May 18, 2010 (see Docket Entry # 17). At the hearing, the three police officers involved in Bristol's arrest testified. Both parties provided supplemental post-hearing briefing (Docket Entry ## 20, 21, 33, 34); and, on March 25, 2011, the court heard oral argument (Docket Entry # 36).
For the reasons stated below, Bristol's motion to suppress is GRANTED.
On December 30, 2009, New York Police Department ("NYPD") Officers Trent Narra and Sam Cabrera, and Sergeant Eric Konoski (collectively "the Officers") were on patrol in an unmarked car in Brooklyn, New York. (Suppression Hearing Transcript ("Tr.") 10-11; 82; 112.) The Officers were assigned to the Police Service Area 2 Anti-Crime Unit, and they were working a 6:00 p.m. to 2:00 a.m. shift. (Tr. 6, 9-10.) Officer Narra was driving, Sergeant Konoski was in the front passenger seat, and Officer Cabrera was in the back seat. (Tr. 11; 83; 112.) Sergeant Konoski was the supervising officer. (Tr. 39.)
Prior to 1:30 a.m., the Officers pulled over six to eight vehicles. (Tr. 12, 83.) None of the Officers was able to recall any specific stop in detail or testify as to the exact number of vehicles stopped. The Officers did not issue any citations or make any arrests, nor did they make a written record of any of these six to eight stops. (Tr. 46-47, 88.)*fn1
At approximately 1:30 a.m., the Officers were at a stop sign, facing southbound at the corner of Saratoga Avenue and Halsey Street. (Tr. 13, 84, 113.) They saw a gold Crown Victoria ("the car") make a left turn from Halsey Street onto Saratoga Avenue, and begin driving southbound on Saratoga Avenue in front of them.*fn2 (Tr. 13, 99, 113.) The car had New Jersey license plates, no exterior markings, two passengers in the back seat, and no one in the front passenger seat. (Tr. 13-14, 113.) It was operating safely and in accordance with traffic laws. (Tr. 101.) As the car passed, the Officers were able to observe only silhouettes of the vehicle's occupants. (Tr. 50.) They were not able to see the occupants' faces, identify their races or genders, or identify their approximate ages. (Tr. 49-50, 100.) The Officers observed no unusual behavior, and did not recognize any of the occupants. (Tr. 49-50, 100.) None of the Officers had seen the car before. (Tr. 49, 100.)
Based on his observations, Officer Narra had a "hunch" that the car was operating as an unlicensed livery cab in violation of New York City Administrative Code § 19-506(b)(1).*fn3 (Tr. 15, 137-39.)*fn4 At Officer Narra's suggestion, the Officers decided to pull the vehicle over. (Tr. 14-16; 85; 103; 137-39.)
When the car stopped, Officer Narra approached the driver's side, Officer Cabrera approached the rear, and Sergeant Konoski approached the passenger side. (Tr. 11, 83, 112.) Defendant Devon Bristol was seated in the rear passenger-side seat. (Tr. 60.) As the Officers approached, Bristol opened the rear passenger door and attempted to exit the vehicle. (Tr. 17, 60.) Sergeant Konoski stood in the opening of the door, put his right hand on the door, and said, "You don't have to get out of the car." (Tr. 17-18, 63, 69-70.) Sergeant Konoski did not, however, order Bristol to remain in the vehicle. Bristol reiterated that he wanted to leave. (Tr. 19, 66.) When Sergeant Konoski maintained his position and again told Bristol that he did not need to leave the vehicle, Bristol attempted to walk past him. (Tr. 19, 68-69.) *fn5 According to Sergeant Konoski's testimony, Bristol's chest bumped against Konoski's forearm as Bristol exited the vehicle. (Tr. 70.) Sergeant Konoski claims that, through Bristol's leather jacket, he was able to feel a "hard, heavy object" that he identified as "consistent with a firearm." (Tr. 70.)*fn6 Konoski asked Bristol to stop, saying "I want to make sure you don't have any weapons on you." (Tr. 70.) Bristol kept walking, and Konoski tackled Bristol to the ground. (Tr. 70-72, 87.) Upon searching Bristol's person, Sergeant Konoski recovered a loaded nine millimeter hi-point semi-automatic pistol. (Tr. 72, 87-88, 115.)
Bristol was arrested and subsequently charged with possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1).*fn7 The Officers did not learn whether or not the gold Crown Victoria was operating as an unlicensed livery cab. (Tr. 73-74, 102, 110.) They did not run a license and insurance check of the driver, run a check of the car's license plate, or otherwise investigate the matter. (Tr. 22, 49, 102, 135; Gov't Opp. at 7, n.4.)*fn8 In their paperwork, all three Officers listed the site of the arrest as 55 Saratoga Avenue, approximately three blocks away from the location where it actually took place.*fn9 (Tr. 56-57, 91-93, 130-31.)
In his Motion to Suppress, Bristol argues that both the vehicle stop and Sergeant Konoski's subsequent search of his person violated his Fourth ...