UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
September 2, 2011
UNITED STATES OF AMERICA,
DEVON BRISTOL, DEFENDANT.
The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
MEMORANDUM & ORDER
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 Amendment rights. (Docket Entry # 11.)
The Fourth Amendment protects "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." U.S. Const. amend. IV. "Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of [the Fourth Amendment]." Whren v. United States, 517 U.S. 806, 809 (1996); see also Arizona v. Johnson, 129 S. Ct. 781, 786 (2009) ("Most traffic stops . . . resemble, in duration and atmosphere, the kind of brief detention authorized in Terry [v. Ohio, 392 U.S. 1 (1968)].") (internal quotation omitted). A vehicle stop operates as a seizure of the driver and all passengers for the duration of the stop. Brendlin v. California, 551 U.S. 249, 255-257 (2007) (holding that "during a traffic stop an officer seizes everyone in the vehicle, not just the driver"). Accordingly, a vehicle stop is constitutionally permissible only if it is reasonable. Whren, 517 U.S. at 810.
A vehicle stop is valid where police have, at minimum, a reasonable suspicion that the person stopped is committing or has committed a criminal offense. Johnson, 129 S. Ct. at 784. Reasonable suspicion of a traffic violation is sufficient to justify a stop. United States v. Stewart, 551 F.3d 187, 193 (2d Cir. 2009) (holding "unambiguously that the reasonable suspicion of a traffic violation provides a sufficient basis under the Fourth Amendment for law enforcement officers to make a traffic stop" and noting that a majority of other circuits agree).*fn10
Once a vehicle is stopped, concerns for officer safety can, in some circumstances, justify patting down a vehicle's occupants for weapons. See Johnson, 129 S. Ct. at 786. In order "to proceed from a stop to a frisk," however, a separate reasonableness inquiry is required: For a pat-down conducted following a lawful stop to be permissible, "the police officer must reasonably suspect that the person stopped is armed and dangerous." Id. at 784 (confirming that separate justifications are required for a vehicle stop and a subsequent frisk).
Reasonable suspicion requires "some minimal level of objective justification" for suspecting criminal activity. United States v. Sokolow, 490 U.S. 1, 7 (1989). "Although an officer's reliance on a mere 'hunch' is insufficient, . . . the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." United States v. Arvizu, 534 U.S. 266, 274 (2002) (citing Sokolow and Terry); see also Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000) ("[T]he Fourth Amendment requires at least a minimal level of objective justification for making [a Terry] stop. The officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity."). This means that, at both the stop and the frisk stages of a vehicle stop, an officer's suspicion must be "based on specific and articulable facts, of unlawful conduct" in order to be consistent with the Fourth Amendment. United States v. Scopo, 19 F.3d 777, 781 (2d Cir. 1994) (internal quotations and citations omitted).
A court may take into account a police officer's law enforcement training and experience in determining the objective reasonableness of his suspicion. See United States v. Villegas, 928 F.2d 512, 516 (2d Cir. 1991) (finding reasonable suspicion where "suspicious" conduct observed by law enforcement would have been "innocuous to the untrained eye"). But whether reasonable suspicion exists is "an objective inquiry; the 'actual motivations of the individual officers involved' in the stop 'play no role' in the analysis." Holeman, 425 F.3d at 190 (quoting Whren, 517 U.S. at 813). Additionally, the court may not consider individual facts in isolation from one another, but must assess reasonable suspicion based on the "totality of the circumstances." Arvizu, 534 U.S. at 273.
"The Government bears the burden of proving, by a preponderance of the evidence, that reasonable suspicion existed for a stop." United States v. Stewart, 604 F. Supp. 2d 676, 680 (S.D.N.Y. 2009) (internal quotations omitted); see also United States v. Dorlette, 706 F. Supp. 2d 290, 297 (D. Conn. 2010). If the Government fails to satisfy this burden, any evidence obtained as a result of an improper seizure-that is, a stop or frisk that is not supported by reasonable suspicion-must be excluded from trial. See Wong Sun v. United States, 371 U.S. 471, 484-88 (1963); United States v. Harrell, 268 F.3d 141, 148 (2d Cir. 2001) ("Evidence seized based on an unreasonable traffic stop 'is subject to the poisonous tree doctrine, and may be suppressed.'" (quoting Scopo, 19 F.3d at 781)).
The court first considers whether the stop of the gold Crown Victoria was supported by reasonable suspicion that it was an unlicensed livery cab, operating in violation of New York City Administrative Code § 19-506(b)(1).
Both Officers Cabrera and Narra testified that it was Narra who first suggested stopping the gold Crown Victoria. (Tr. 85, 137.) In explaining his reasoning for this suggestion, Officer Narra initially told prosecutors that he had a "hunch" that the car was an unlicensed livery cab (Gov't Disclosure Letter dated May 17, 2010 (Docket Entry # 16)), a position that he reiterated on cross-examination (Tr. 138). An officer's "hunch" is insufficient to support reasonable suspicion. Arvizu, 534 U.S. at 274 (citing Terry).
At the suppression hearing, however, Narra and the other Officers recounted additional circumstances that the Government contends rendered their suspicion of the car reasonable. (See, e.g., Tr. 113-14.) These factors were (1) that two passengers were riding in the back seat of the car, while no one was riding in the front passenger seat; (2) that Crown Victorias and other large sedans are among the types of vehicles commonly used as livery cabs; (3) that the car had New Jersey license plates; and (4) that the car had no signage indicating that it was a licensed livery cab.*fn11 Even taken together, these factors do not amount to reasonable suspicion.*fn12
The arrangement of two passengers in the back of the car with no passenger in the front is a relevant factor in the court's analysis, but this fact is insufficient to support reasonable suspicion of a violation of § 19-506(b)(1). People sit two-to-the-back for a wide range of ordinary and lawful reasons.*fn13 By the Officers' own admissions, they had no way-based on their observations of the driver and passengers-of determining whether the car's occupants were engaged in lawful activity or a traffic violation. The Officers could see only the positioning of the passengers, not any other characteristic of the vehicle's occupants.*fn14 The court notes that although the "balance between the public interest and the individual's right to personal security, tilts in favor of a lesser standard than probable cause" in investigatory vehicle stops, Arvizu, 534 U.S. at 273 (internal quotation omitted), police do "not have unbridled discretion to make  investigatory stop[s]," United States v. Nargi, 732 F.2d 1102, 1104 (2d Cir. 1984). To permit the seating positions of passengers alone to create reasonable suspicion would expose many innocent travelers to near-random searches.
Although an investigatory stop based on a two-to-the-back seating arrangement alone falls short of satisfying the reasonable suspicion standard, the court must consider the passengers' seating arrangement in light of the totality of the circumstances surrounding this stop. The other facts the Government advances provide little additional support for the purported reasonableness of the Officers' suspicion. First, the Officers testified based on their training and experience that large sedans such as Crown Victorias are among the types of vehicles frequently used as livery cabs. (See, e.g., Tr. 52.) The Officers also acknowledged, however, that their training and experience has shown them that all varieties of makes and models-including SUVs, vans, station wagons, trucks, and sedans-can be and are frequently used for this purpose. (See, e.g., Tr. 102 (Cabrera testifying that she has seen all types of vehicles, including a Nissan Altima and a Mercedes Truck, operating as livery cabs).) The Officers further testified that Crown Victorias are commonly used as personal, not-for-hire vehicles as well. (Tr. 53.) And, none of their testimony drew a distinction between older and newer models, or gold vehicles versus vehicles of other colors. On this record, at this level of generality, the type of vehicle is a weak factor which does little to contribute to the reasonableness of the Officers' suspicion.
Second, at oral argument, the Government argued that the fact that the
car had out-of-state license plates further contributes to the
reasonableness of the Officers' suspicion. (See Motion Hearing Tr.)
The court received testimony that the Crown Victoria had New Jersey
license plates. (See Tr. 102, 114.) It is far from apparent to the
court, however, how out-of-state plates, particularly from a
neighboring state such as New Jersey, with which there is a
considerable exchange of interstate traffic, contribute to an
inference that the car was an unlicensed livery cab.*fn15
The Officers provided no indication why out-of-state plates
might contribute to reasonable suspicion in this context, and none of
the Officers testified that anything in their training or experience
has shown them that out-of-state vehicles commonly operate as for-hire
vehicles. The court does not credit any suggestion that seeing a car
from New Jersey driving in Brooklyn is anything but commonplace, and
finds that even in combination with other factors the car's
out-of-state plates are innocuous.
The final factor that the Government advances also adds nothing in terms of the objective reasonableness of the Officers' suspicion. The Officers testified that the car had no signage or other marking that indicated that it was a livery cab. (Tr. 101.) The Government argues that the absence of such signage indicates that it was likely operating as an unlicensed livery cab. (Gov't Post-Hearing Opp. at 7l.) Such an inference presumes that the car was a livery vehicle, a contention that the court has rejected.
In sum, the facts surrounding the vehicle stop are insufficient to support an objectively reasonable suspicion, even when considered in their totality. The circumstances the Government has explicated "describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure." Reid v. Georgia, 448 U.S. 438, 448 (1980). Because the Government has failed to meet its burden of showing that reasonable suspicion of a traffic violation existed, the court finds the stop of the Crown Victoria unlawful on these facts.
C.Search of Defendant's Person
Because the vehicle stop in this case was impermissible, the Officers' search of Bristol's person and the subsequent seizure of the firearm are tainted as fruit of the poisonous tree. See, e.g. United States v. Santiago, 950 F. Supp. 590, 594 (S.D.N.Y. 1996) ("If the stop is unconstitutional, the resulting search and seizure is tainted as fruit of the poisonous tree.") (citing Wong Sun v. United States, 371 U.S. 471 (1963)).*fn16
For the foregoing reasons, the Government has failed to meet its burden of demonstrating that there was reasonable suspicion that justified the vehicle stop. Defendant Devon Bristol's motion to suppress is GRANTED, and the firearm and all fruits of the poisonous tree shall be excluded at trial. See Wong Sun, 371 U.S. at 484-88.
NICHOLAS G. GARAUFIS United States District Judge
Brooklyn, New York