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United States of America v. Michael James

December 16, 2011

UNITED STATES OF AMERICA,
v.
MICHAEL JAMES, DEFENDANT.



The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.

OPINION AND ORDER

On September 15, 2011, Defendant Michael James ("James" or the "Defendant") filed a motion to suppress physical evidence and statements he allegedly made at the time of his arrest. On November 3, 2011, the Government responded in opposition to the motion. On December 6, 2011, the Court conducted an evidentiary hearing on the matter. For the following reasons, the Defendant's motion to suppress is denied.

I. Facts*fn1

On December 1, 2010, New York City Police Department ("NYPD") detectives Mark Moran ("Moran") and Julio Negron ("Negron") of the Bronx gang squad (collectively, the "detectives") were conducting surveillance near the intersection of White Plains Road and 230th Street in the Bronx, New York. (Transcript of December 6, 2011 Hearing ("Tr.") at 3-4.) White Plains Road is a two-way street running north-south, with the northbound lanes divided from the southbound lanes by solid double-yellow lines. (Id. at 4-5.) Moran and Negron were seated in an unmarked police car which was parked on the eastern side of White Plains Road facing northbound, approximately 10 car lengths south of 230th Street. (Id. at 5, 20, 62.) The detectives were on the lookout for a possible drug transaction involving Michael James, and had been given a brief physical description of James by federal agents, which included the clothes he would be wearing. (Id. at 21, 23, 70.)

At approximately 4:30 p.m., the detectives observed a man and a young girl with a knapsack on her back walking westbound on 230th Street toward White Plains Road. (Id. at 5-7, 46.) Moran testified that the man fit the description of James that the detectives had been given. (Id. at 22.) The detectives then observed the man and the young girl turn and walk northbound on White Plains Road. (Id. at 6.) Soon thereafter, the man flagged down a passing minivan that was heading south. (Id. at 6, 47.) When the minivan got to be approximately six or seven car-lengths from where the detectives were parked, it made a U-turn over the double-yellow lines, and proceeded northbound toward the man and the young girl. (Id.) When it reached them, the minivan pulled over to eastern side of the Street, and the man and young girl got inside. (Id. at 6.) The detectives observed that the minivan had dark tinted windows. (Id.)

The detectives followed the van northbound on White Plains Road for approximately one block before pulling it over. (Id. at 7, 47.) They then exited their vehicle and approached the van, with Moran going to the driver's side, and Negron to the passenger side. (Id. at 7-8.) Moran testified that when he reached the vehicle, the driver's window was open, and he could see the driver seated behind the wheel, and the Defendant seated in the front passenger seat. (Id. at 8.) After the driver was unable to produce his license or registration, Moran asked him to step out of the van, and to move to the rear of the vehicle. (Id. at 9-10.) The driver exited the van, and, as he was walking to the rear of the vehicle, told Moran that he didn't have a license and was acting as a livery in order to make money for his family. (Id. at 9.) Once at the rear of the vehicle, Moran asked the driver "if he had a problem with me searching his car." (Id.) Moran testified that the driver responded, "[n]o. You can look in the car." (Id.)

Meanwhile, Negron testified that as he approached the front passenger door of the van, someone rolled the window down. (Id. at 72.) By the time Negron got within two feet of the open window he was able to detect a "strong, pungent, skunky smell." (Id. at 49.) Negron testified that he had smelled this odor "hundreds" of times throughout his 14-year career with the NYPD, and that it was consistent with the packaging of marijuana. (Id. at 49-50.) Negron asked the Defendant, who was seated in the front passenger seat, if "there is anything in this vehicle that I should know about." (Id. at 50.) When the Defendant didn't respond, Negron pulled him out of the van, patted him down, and then sent him to the back of the vehicle where Moran was standing with the driver. (Id.) At this point, Moran signaled to Negron that the driver of the van had given his consent to search the vehicle. (Id. at 77.) Negron asked Moran to watch the Defendant, and then went back to the passenger side of the minivan, and slid open the back passenger side door. (Id. at 10, 52.)

When the door slid open, Negron observed the young girl seated directly behind where the Defendant had been seated, with a brown Gucci knapsack around her shoulders. (Id. at 52; see id. at 30.) Negron asked the girl to exit the vehicle, but before doing so, she slid the knapsack off of her shoulders and onto the seat in which she had been sitting. (Id. at 52-53.) At this point the odor of marijuana became more intense, and Negron asked the young girl to step to the back of the vehicle where Moran was located. (Id.) Negron then opened the knapsack and observed that it contained a white plastic trash bag, inside of which were vacuum-sealed clear plastic freezer bags containing packaged marijuana. (Id. at 13, 54, 66.) After making this observation, Negron signaled to Moran to arrest the individuals, and the driver and the Defendant were placed in handcuffs. (Id. at 10, 54, 55.) Moran then walked to the passenger side of the van and observed the knapsack, which had been opened up to reveal the marijuana inside. (Id. at 11.)

Soon thereafter an NYPD field team arrived on the scene and helped to transport the driver of the van, the Defendant, and the young girl (who was identified as the Defendant's daughter) to the 47th precinct. (Id. at 13, 31.) When they arrived at the precinct, the young girl was placed in the juvenile detention room, and her mother was contacted and told to come and pick her up. (Id. at 14, 33.) The detectives then brought the Defendant upstairs into the precinct's debriefing room. (Id.) Before asking any questions, Moran read the Defendant his Miranda rights off an NYPD statement form ("statement form"), pausing after issuing each warning to ensure that the Defendant understood. (Id. at 15.) If the Defendant indicated that he understood the warning, Moran wrote "yes" next to the text of the warning on the statement form, and then asked the Defendant to initial next to the "yes." (Id.) The Defendant indicated that he understood each of the warnings, and initialed each time. (Id. at 16-17, 58-59; see Govt. Ex. 1.) Both Moran and the Defendant then signed the statement form, and the Defendant proceeded to answer the detectives' questions, and give a written statement indicating that the marijuana in the knapsack was his, and that he was selling it to make money. (Tr. at 17, 33, 57-59; see Govt. Ex. 1.) The Defendant's demeanor was calm throughout the interview, which lasted roughly 15 minutes. (Tr. at 18, 61.) After it was over, Moran, the Defendant, and Negron each signed their names at the bottom of the statement form. (Tr. at 57; see Govt. Ex. 1.)

After his conversation with the detectives, the Defendant was brought back downstairs and placed in a cell. (Id. at 18, 35, 61.) The detectives then issued a summons to the driver of the minivan for "uninsured for hire," and the driver was released. (Id. at 18, 26.) A couple of hours later, Special Agent Michael Zeppieri ("Zeppieri") of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") arrived at the precinct. (Id. at 36, 85.) Zeppieri spoke with Moran about the case, and was told that the Defendant had already been read his Miranda rights and had waived them and given a statement. (Id. at 86-87.) Zeppieri asked to speak with the Defendant, and the Defendant was once again taken upstairs and placed in the debriefing room. (Id. at 36, 87.) Zeppieri and ATF agent Andy Boss interviewed the Defendant for roughly 10 minutes, during which time the Defendant made a number of inculpatory statements.*fn2 (Id. at 87-91.) The Defendant was calm and respectful throughout this interview. (Id. at 87.) After the second round of questioning, the Defendant was placed in an NYPD car and taken by the detectives to central booking at 161st Street. (Id. at 93.) On the way to central booking, the Defendant pointed out a location to the detectives where he believed a large amount of marijuana was located. (Id. at 88.)

II. Discussion

A. Motion to Suppress Physical Evidence

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. "In enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the [Supreme] Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution." Chambers v. Maroney, 399 U.S. 42, 51 (1970). "Probable cause to search is demonstrated where the totality of circumstances indicates a 'fair probability that contraband or evidence of a crime will be found in a particular place.'" Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

1. The Detectives had Reasonable Suspicion to Stop the Van "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]." United States v. Jenkins, 452 F.3d 207, 212 (2d Cir. 2006) (quoting Whren v. United States, 517 U.S. 806, 809-10 (1996)). "The stop of a vehicle must be reasonable in the circumstances presented, and an officer making a stop must have a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause." Id. (quotations and citations omitted). The Second Circuit has "held ...


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