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United States of America v. Toshnelle Foster

January 9, 2012


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


Defendant Toshnelle Foster, a prior felon, is charged with possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Foster has moved to suppress (1) a firearm recovered at the time of his arrest, claiming that his arrest was not supported by probable cause; and (2) his post-arrest statements, claiming that they are the fruit of an unlawful arrest and were elicited in violation of Miranda v. Arizona, 384 U.S. 436 (1966), Oregon v. Elstad, 470 U.S. 298 (1985), Missouri v. Siebert, 542 U.S. 600 (2004), and their progeny. For the reasons stated below, the motion to suppress will be denied in its entirety.



In support of his motion to suppress, Foster submitted an affirmation setting forth the following version of events: On January 25, 2011, New York City Police ("NYPD") officers arrested him and Javon Jones, a close friend whom Foster considers his "cousin." (Foster Aff. ¶ 3) Foster did not display a gun, nor was any firearm visible on his person, prior to or at the time of his arrest. (Id. ¶ 4) While driving to the 44th Precinct, and while in a holding cell at the precinct, Officer Alberto Puente -- the arresting officer -- repeatedly asked Foster "whether [he] was going to let Mr. Jones 'go down' for something he didn't do." (Id. ¶ 5)

Once at the precinct, Foster -- then 18 years old -- told Officer Puente that he wanted to call his mother. (Id. ¶ 6; Tr. 110) Officer Puente brought Foster his cell phone, but before giving it to him asked him if he had "come to a conclusion" about the gun. (Id.) In response, Foster told the officer that the gun was his. (Id. ¶ 7) Officer Puente then told Foster to make a written statement and to include a description of the gun, which Foster did. (Id.) Foster denies being given Miranda warnings or signing a Miranda waiver form prior to making his oral and written statements. (Id. ¶ 8)

After making the written statement, Foster was repeatedly questioned about the gun by other law enforcement officers. (Id. ¶ 9) Between 9:00 p.m. and 10:00 p.m., Foster signed a Miranda waiver form and made a second written statement. (Id. ¶ 10)

The following day, Foster was questioned several times by different law enforcement officers. (Id. ¶¶ 12-14) Foster was never told that his oral and written statements to Officer Puente would not be admissible in court and Foster believed the statements could be used against him. (Id. ¶ 15)


The Court conducted an evidentiary hearing on Foster's suppression motion on November 8 and 14, 2011, and heard argument on December 19, 2011. Foster did not testify at the hearing. The Government called two police officers involved in Foster's arrest -- Officer Puente and Sergeant Danny Diaz -- and Foster called the third officer involved in the arrest -- Officer Angel Andujar. The Court also heard testimony from several officers and agents who questioned Foster post-arrest.

A.January 24, 2011 Gang-Related Attack and Homicide

At the suppression hearing, the Government offered evidence that Foster is a member of a violent gang called "God's Favorite Children" or "GFC." (Tr. 262, 270, 293-94) Foster has the initials "GFC" tattooed on his right arm. (Tr. 293-94) The Bureau of Alcohol, Tobacco and Firearms ("ATF") has been investigating gang activities and related shootings involving GFC. (Tr. 262, 276-78) Members of GFC -- including Foster's "cousin" Javon Jones -- have been charged in Indictment S2 11 Cr. 576(WHP) with violations of the RICO statute, with narcotics trafficking, and with a variety of violent acts, including murder.*fn1 (Gov't Reply Br. 7 n.2)

During the evening of January 24, 2011 -- the night before Foster's arrest in this case -- Foster and other members of GFC were "hanging out" on Courtlandt Avenue in the Bronx when they were chased by members of a rival gang known as YG or "Young Guns" attempting to rob them. (Tr. 189-91, 203-05, 208-09, 270, 278) Foster and his associates barricaded themselves in the back room of a nearby deli. (Tr. 189-91, 203-05, 208-09, 270) After Foster and his GFC colleagues sought refuge in the deli, a friend of Foster's was murdered outside. (Tr. 189-91, 205-07, 234)

B.Foster's January 25, 2011 Arrest

At approximately 1:40 p.m. on January 25, 2011, three members of the 44th Precinct's Anti-Crime Unit -- Officers Puente and Andujar, and Sergeant Diaz -- were driving north on Concourse Village West in the Bronx in an unmarked police vehicle. (Tr. 7, 58, 306) Officer Andujar was driving slowly, approximately five miles per hour or less. (Tr. 8, 311)

Officer Puente and Sergeant Diaz saw Foster and Jones standing on the sidewalk engaged in conversation. (Tr. 8-9, 58-59; Gov't Ex. 103) Sergeant Diaz -- who was seated in the rear passenger-side of the car about five feet away from Foster -- saw him show the brown butt of a gun to Jones. (Tr. 8-10, 31-32) Foster was holding the gun near his waistband. (Id.) Officer Puente -- seated in the front passenger seat -- likewise saw the brown handle of a large gun tucked into Foster's waistband. (Tr. 58-60, 63, 113-114)

Officer Puente told Officer Andujar to stop the car and all three officers then exited the vehicle yelling "police, don't move" and/or "police, stop." (Tr. 15, 63, 101, 307) After the officers identified themselves, Foster began to run, and Officers Puente and Andujar gave chase. (Tr. 15-16, 63, 102, 307) Foster ran up a ramp leading into the courtyard of an apartment building complex. (Tr. 16, 41-42, 63-64, 307-09; Gov't Ex. 105) Officer Puente lost sight of Foster for about two to five seconds as Foster turned up the ramp. (Tr. 64; Gov't Ex. 107) While chasing Foster, Officer Puente had his weapon drawn and was saying "police, stop." (Tr. 68, 107)

In the courtyard, Foster threw himself on the ground and placed his hands behind his back. (Tr. 68, 70, 104-105; Gov't Ex. 113) Officer Puente did a visual inspection of Foster*fn2 and the surrounding area, but did not recover a gun. (Tr. 70-71)

Officer Puente then escorted Foster back to the sidewalk along the same path Foster had run, looking for a gun. (Tr. 71-72, 107-09, 116, 309-10) Officer Andujar also looked on the ground during the walk back to the sidewalk, but testified that he did not know that he should be looking for a gun. (Tr. 310)

While Officers Puente and Andujar chased Foster, Sergeant Diaz remained on the sidewalk with Jones, who did not attempt to flee. (Tr. 16) Sergeant Diaz asked Jones for ...

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