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United States of America v. Kenneth Moore and Joshua Moore

December 19, 2011


The opinion of the court was delivered by: Richard J. Holwell, District Judge:


Defendant Joshua Moore seeks suppression of two handguns that comprise the physical evidence in the government's criminal case against him.*fn1 These weapons were found in the backseat of a livery cab in which the defendant was a passenger, after police officers stopped it, purportedly for committing a traffic violation. Two of the three police officers who conducted the stop and subsequent search of the vehicle stated during an evidentiary hearing, held before the Court on June 28, 2011, that they stopped the car on suspicion that it was "traveling at a high rate of speed" in violation of New York's traffic laws. Suppression Hearing Transcript ("Tr.") at 19:23--24, 37:9 (June 28, 2011). The defendant argues that the stop was not supported by reasonable suspicion of a traffic violation. For the reasons stated below, the Court agrees, and the physical evidence seized as a result of the stop is suppressed.


During the June 28 suppression hearing, the Court heard testimony from two members of the New York Police Department ("NYPD") who were present when the defendant was arrested.

Sergeant Kevin Whelan testified that on the date of the incident, he was assigned to the Patrol Borough Bronx Anti-Crime Unit. Tr. 3:8--9. He outlined the responsibilities of that unit by describing it as a "plainclothes team that's involved in proactive policing in areas throughout the Bronx . . . for areas of violent felonies and high homicide rates." Tr. at 3:11--14. Sergeant Whelan testified that during the course of his career, he has been involved in approximately 400 arrests and thirty to forty gun arrests. Tr. 4:1--5. He did not describe how much experience he had had conducting traffic stops or estimating the speeds of traveling cars. Because the primary duties of an anti-crime officer are to respond to violent felonies rather than to enforce traffic laws, Sergeant Whelan stated that he did not have a book of summonses that he could issue on the night in question. Tr. at 21:10--17.

On the night of June 9, 2009-the night of the defendant's arrest-Sergeant Whelan was driving an unmarked police car in which Officer Brian Brannigan and Officer James Whitlock, who did not testify, were passengers. Tr. at 5:17--22, 29:20--22. Their car was parked at the intersection of 149th Street and Exterior Drive in the Bronx, directly across from the 145th Street Bridge.*fn2 Tr. at 5:25--6:1, 7:15--17. The car was facing north, and Sergeant Whelan could see the off-ramp from the bridge directly to his left. Tr. at 16:5--6, 15-16. At approximately 11:30 p.m., he observed a livery cab coming over the bridge towards the Bronx "at a high rate of speed." Tr. at 7:17--23, 29:23--24. On cross-examination, Sergeant Whelan clarified that, in his estimation, the car was traveling "in excess of the speed limit." Tr. 26:13--14. Notably, when he first observed the vehicle, it was approximately thirty feet from the intersection where he was parked. Tr. at 18:2--6. After the livery cab crossed the bridge, it made a right-hand turn onto Exterior Drive and disappeared behind Sgt. Whelan. Tr. at 8:1--4.

At that point, Sgt. Whelan decided to pull over the cab. He stated at the hearing that the reason he did so was that in his experience, livery cab drivers will often "make blatant traffic infractions in order to draw attention to their cabs so that they can in fact be pulled over by the police if they have passengers in the car that they don't feel comfortable with." Tr. at 28:12--15. He stated that drivers would use such "blatant . . . infractions" instead of using a yellow emergency light that lights up on the tail of the car because they do not want to alert their passengers that they are attempting to draw the attention of the police. Tr. at 28:10--23.

Sergeant Whelan did not specify which "blatant traffic infraction" sparked his suspicion in this case. On direct testimony, he mentioned only the fact that the cab was driving at a "high rate of speed." Tr. at 7:19--20. Under cross-examination, Segeant Whelan also seemed to suggest that the cab was straddling two lanes as it crossed the bridge. See Tr. at 18:16--17 ("It's a double lane, so he was probably in the middle of both lanes as he was making the turn."). However, the government does not seek to justify the traffic stop on this basis.

Once he decided to pull over the livery cab, Sergeant Whelan made a u-turn and turned on the police lights and siren of his vehicle. Tr. at 8:8--19. The police officers drove two blocks and then, having caught up, stopped the cab. Tr. at 9:8--10. Sergeant Whelan was remarkably unspecific in describing how fast he had to drive in order to catch up with the cab. His interchange with defense counsel at the suppression hearing was as follows:

Q. How long a period of time did it take you from the time that you observed him make the right turn and start heading south on Exterior for you to make the U-turn and pull over?

A. I would say about 10, 15 seconds.

Q. Do you know how fast you were driving.

A. I was definitely driving at a good rate of speed to catch back up to the livery cab.

Q. When you say a good rate of speed, what do you mean? A. The speed limit in New York City is 30 miles an hour. I probably was going over the speed limit of 30 ...

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