The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
Defendant Joseph Freeman ("Freeman") moves to suppress the firearm seized from him by the New York City Police ("Police"), at the intersection of Young Avenue and East Gun Hill Road in the Bronx, at 1:40 a.m. on April 27, 2011, after wrestling with two plain clothes police officers. Freeman argues that his Fourth Amendment rights were violated when he was stopped without reasonable suspicion. The Court held a suppression hearing on October 25, 2011. For the reasons that follow, Freeman's motion to suppress the firearm is DENIED.
At approximately 1:40 a.m. on April 27, 2011, the Police's radio dispatch issued a "gun run" for 1308 East Gun Hill Road, between Burke Avenue and Young Avenue, involving a male Hispanic, "wearing a black hat and white t-shirt," who was standing in front of a Chase Bank, "arguing with a female." (GX 24.)*fn2 Seconds later, the dispatcher reported that the caller had called back and reported that the male was now "walking towards Burke" Avenue, and was wearing "a long white t-shirt." (Id.) Twenty seconds later, the dispatch reported that the "male is a male black, he's wearing a white du-rag, with a black hat, long white t-shirt and he's standing on the corner of Burke." (Id.) After seven seconds, the dispatcher says that the caller, a female, now reports that he was "heading back towards Chase Bank," located at 1308 East Gun Hill Road. (Id.) An officer from the 49 Precinct's anticrime unit asked the dispatcher to confirm with the caller whether she actually saw a gun; but the dispatcher was unable to confirm this. (See id.; see also Oct. 25, 2011 Hearing Tr. ("Tr.") 11:20-21, 56:11-13.)
Police Officers Walsh and Conroy heard the "gun run" radio dispatch. They were on duty, in plain clothes and in an unmarked police vehicle, surveilling a school building located at Schorr, Woodhull and Arnow, just off of East Gun Hill Road. (Tr. 5:5-22.) The school was subject to a pattern of burglaries. (Id.) Their location was approximately 7-8 blocks from the intersection of East Gun Hill Road and Burke Avenue. (Id. 10:16-21.)
Officer Walsh explained that a "gun run" indicates that "a person is possibly armed with a firearm." (Id. 6:4-6.) Immediately upon hearing the first dispatch, the officers left the school site and drove directly to the scene. Officer Walsh wanted to get to the scene as fast as he could because "there is someone possibly armed with a firearm. . ." (Id. 8:20-25.) They drove north on Woodhull, turned left onto East Gun Hill Road, and proceeded to Burke Avenue, arriving in less than a minute. (Id. 10:16-21.)
Officer Walsh testified that when they arrived at Burke Avenue, he saw a male (Freeman) wearing a black hat and a white t-shirt. (Id. 10:22-25.) Officer Walsh kept his eye on Freeman while the officers canvassed the area along East Gun Hill Road for any other individuals who might match the first radio dispatch description. (Id. 12:1-12, 23-24.) None did. (Id. 13:6-8.) Freeman matched the description given in the second dispatch, which Officer Walsh testified he heard as he arrived on the scene: male black, wearing a long white t-shirt, a black hat, and a white du-rag, and who was walking east on East Gun Hill Road, with Burke Avenue to his back and Young Avenue in front of him, just as the radio dispatch described ("standing on corner of Burke . . . . now . . . heading back towards Chase Bank. . .")(GX 24).
Officers Walsh and Conroy made a u-turn so that they would be proceeding east on the south side of East Gun Hill Road, parallel and adjacent to Freeman. (Tr. 12:6-22.) They parked their vehicle at the corner of Young Avenue and East Gun Hill Road. (Id. 16:1-5.) Officer Walsh testified that he observed Freeman walking in an "aggressive manner. He was walking in a straight line. His fists were clenched. He wasn't paying attention to what was around him, looking to his left or right or anything. He was by himself." (Id. 14:11-16.)
Officer Walsh testified that East Gun Hill Road is a high crime area,*fn3 where robberies and burglaries occur (e.g., Officer Walsh was on a burglary surveillance seven blocks away from Young Avenue and Burke Avenue). (Id. 11:10, 36:23.) He testified that "[w]e had somebody shot on the corner of Burke Avenue and East Gun Hill Road . . . [w]e have had shots fired jobs." (Id. 11:10-13.) Officer Walsh was also familiar with the bar on the corner of Young Avenue and East Gun Hill Road, where the incident occurred. "There is usually a lot of [loud(?)] people, people hanging outside the bar . . . . They cause a public disturbance, they're loud, they're intoxicated." (Id. 45:14-18.)
In addition to these external indicia concerning the location, Walsh knew, based on his training and experience, that baggy clothes and longer shirts are used to conceal weapons. (Id. 14:20-15:1.) Officer Walsh believed that Freeman's long t-shirt (see GX 23) could be concealing a firearm in Freeman's waistband. (Tr. 15:24-25.)
As Officer Walsh pulled the car to the curb, ahead of Freeman, they "watch[ed] him in the side-view mirrors, [and] wait[ed] for him to approach up to the car." (Id. 16:7-9.) At that point, Officer Conroy got out of the car. Officer Walsh testified that Officer Conroy identified himself as a Police Officer. (Id. 16:11.) Officer Conroy's shield was out and displayed on his chest. (Id. 16:14-17.) Officer Conroy addressed Freeman "hey buddy, can I talk to you for a second" and tried to touch Freeman's right arm. (Id. 16:11-13.) Freeman did not stop; instead, he kept walking. (Id. 16:21-23.)
Officer Walsh then got out of the car to try to stop Freeman. His shield was out and displayed on his chest. (Id. 17:8-11.) Officer Walsh "tried to like grab his arm, get him to turn around, but he just ripped away from me again. That's when I just grabbed him by the waist and tried to physically stop him." (Id. 17:2-7.) The struggle continued as the parties wrestled with one another across Young Avenue. (Id. 17:21-18:1.) Officer Walsh got Freeman to the ground by tripping him. (Id. 18:4-5.) As they struggled, Freeman kept moving his hands towards his waist, and even when he was on the ground, Freeman kept on "shoving his hands underneath his waist." (Id. 18:10.) Officers Walsh and Conroy kept on trying to rip his hands out. (Id. 18:10-11.) Freeman's affidavit describes the same encounter as follows: "I tried to pull away from them, but the men grabbed me, shoved me to the ground and pinned me there. This all happened very fast." (Freeman Declaration August 17, 2011, ¶ 7.)
By this point, other officers, including Officer Morales, of the Bronx Borough Anticrime Unit,*fn4 had arrived on the scene. (Tr. 18:18-24.) Freeman continued to struggle and shove his hands underneath his waist. (Id. 53:21-24.) While trying to pry Freeman's hands out from under him, Officer Morales felt a metal object in front of Freeman's stomach, which he believed to be a firearm. (Id. 53:25-54:2) The officers eventually handcuffed Freeman. (Id. ...