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United States of America v. Gerald Roland

January 10, 2012

UNITED STATES OF AMERICA
v.
GERALD ROLAND, DEFENDANT.



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

OPINION AND ORDER

By motion dated October 24, 2011, Defendant Gerald Roland ("Roland" or "Defendant") moved to suppress evidence seized as fruits of an unlawful arrest by the New York City Police Department ("NYPD") on or about June 1, 2010. On October 26, 2011 and November 4, 2011, the Court conducted an evidentiary hearing on the matter. On November 14, 2011, Defendant submitted a post-hearing memorandum in support of his motion to suppress. On November 22, 2011, the Government responded in opposition to the motion. On November 28, 2011, Defendant submitted his reply memorandum. For the following reasons, Defendant's motion to suppress is denied.

I. Factual Background

Defendant was observed by the Street Narcotics Enforcement Unit ("SNEU")*fn1 of the 28th Precinct conducting a hand to hand drug transaction on the night of June 1, 2010. (Transcript of October 26, 2011 Hearing ("Oct. Tr.") at 3-5, 11.) The unmarked observation vehicle of the SNEU unit was manned by Police Officer Neil Lawson ("Officer Lawson") and was parked on the south side of W. 114th Street between 7th and 8th Avenues. (Id. at 6, 9-10.) West 114th Street between 7th and 8th Avenues consists of row houses operated by the New York City Housing Authority on the north and south side of the block, with Wadleigh High School occupying the northeast corner of the block bordering W. 114th Street for 300 or 400 feet. (Defense Exhibit ("Ex.") 14; Oct. Tr. at 7, 9, 28.) Officer Lawson testified that he observed Defendant standing on a stoop of an address he believed to be 257 W. 114th Street.*fn2 (Id. at 10, 12-13.) Officer Lawson stated that he had seen Defendant before, but was unaware of his name or identity. (Id. at 35.) Officer Lawson testified that 257 W. 114th Street was located "to my left and I believe one building behind me" on the north side of the street. (Oct. Tr. at 13.) Officer Lawson estimated that he was approximately 40 feet from the Defendant's location. (Id. at 24.) Although it was after dusk, Officer Lawson could see clearly without using any visual aids because the street lighting made it "clear enough for me to see." (Id. at 22-23, 25-26.)

Within 15-20 minutes of parking his vehicle, Officer Lawson observed an individual approach Defendant with U.S. currency in his hand. (Id. at 10.) Defendant walked down from the stoop and met this individual on the sidewalk in front of the stoop at 257 W. 114th Street. (Id.) Officer Lawson testified that after engaging in brief conversation, Defendant accepted U.S. currency from the individual and in exchange, handed the individual "small objects from what appeared to be a small plastic bag." (Id.) Officer Lawson witnessed this same series of events take place three separate times, with three different individuals. Based on his training and experience,*fn3 Officer Lawson believed that Defendant was exchanging narcotics for cash in the observed transactions. (Id. at 11, 33.) Officer Lawson testified that "that particular block is known by the precinct -- it's targeted as a narcotics-prone location." (Id. at 11.) Officer Lawson also testified that the individuals approaching the stoop at 257 W. 114th Street displayed their money in a way that indicated to him that "their intention is to see if people are out there selling narcotics." (Id.) Officer Lawson stated that every exchange happened in exactly the same manner with Defendant giving the individuals small objects from a bag concealed on Defendant's person and the individuals giving Defendant money. (Id.) Officer Lawson testified that he did not make the call to arrest the Defendant after the first alleged sale because "normally I let one or two of these transactions occur, only because I need to satisfy myself that in fact what I'm observing is what I think it is -- a narcotics transaction." (Id. at 11-12.)

The third and final transaction that Officer Lawson observed involved a buyer later identified as Eric Ward ("Ward"). (Id. at 12.) Officer Lawson first noticed Ward walking west on the north side of W. 114th Street towards Defendant's location. (Id. at 36-37.) Officer Lawson observed the Defendant and Ward conduct an exchange similar to the previous transactions he witnessed. (Id. at 11-12, 38-39.) Officer Lawson stated that he observed Ward open his hand and examine the object that Defendant had given him. (Id. at 12, 39.) Officer Lawson testified that this examination of the object is commonly an indication as "people that purchase crack . . . normally look at it right after they get it." (Id. at 12.) Ward left 257 W. 114th Street and proceeded eastbound on the north side of W. 114th Street towards 7th Avenue. (Id.) While he continued to observe Ward, Officer Lawson noticed that Ward deliberately passed through a fire hydrant on the north side of the block which was spraying water into the air. (Id. at 12, 39-41.) After passing through this spray of water, Ward continued east on W. 114th Street and made a left onto 7th Avenue, heading north. (Id. at 12, 41.)

The SNEU unit apprehension team*fn4 was located around the block from Officer Lawson on Seventh Avenue between W. 115th Street and W. 116th Street facing south. (Id. at 74.) Police Officer Angelica Salmeron ("Officer Salmeron") and Police Officer Scott Roberts ("Officer Roberts") of the apprehension team testified that they observed Ward walk on the south side of the block and make a right onto 7th Avenue and head south. (Id. at 12.)

The Arrest of Eric Ward

Officer Lawson testified that he radioed a description of Ward to the apprehension team while Ward was walking eastbound on W. 114th Street. (Id. at 13.) Officer Lawson testified that he described Ward as a tall, light-skinned, African-American male wearing a three-quarter length jacket and a black hat. (Id. at 36.) Officer Lawson did not remember the color of the jacket other than believing it to be "a light color -- but it was dirty." (Id. at 37.) On cross-examination, Officer Salmeron testified that Officer Lawson's radio transmission described Ward as "a male black, wearing all black, that he was actually wet because he had gone through a fire hydrant that was open." (Id. at 73.) Officer Lawson testified that Officer Roberts replied to his transmission by stating over the radio, "what the hell are you doing? This guy pissed himself. Why did you radio this? Why did you send this guy to us?" (Id. at 13.) Officer Lawson relayed to Officer Roberts that Ward was wet because he had passed through the open fire hydrant on W. 114th Street. (Id. at 13-14.) Officer Salmeron believed that Ward was wearing black jeans, a black sweater, and a black jacket. (Id. at 81-82.)

Officer Salmeron and Officer Roberts testified that as they exited the apprehension vehicle on the southwest corner of W. 114th street to stop the individual matching Officer Lawson's description, they observed the individual "drop a piece of tinfoil to the ground." (Id. at 62, 116.) Officer Salmeron retrieved the tinfoil and found what appeared to be crack cocaine inside. (Id. at 62, 64.) Officer Salmeron made this determination based on her training and experience with narcotics. (Id. at 64.) Officer Salmeron instructed Officer Roberts to handcuff Ward after determining the substance contained in the tinfoil was narcotics. (Id.) Officer Salmeron testified that this arrest occurred at approximately 9:40 p.m. (Id. at 63.) Officer Salmeron and Officer Roberts radioed Officer Lawson that the individual apprehended was "positive," meaning positive for possessing narcotics. (Id. at 14, 79-80, 113.) Officer Roberts testified that the apprehension team placed Ward into the prisoner van which had arrived at the location.*fn5 (Id. at 127.)

Officer Lawson did not observe the arrest of Ward, however, he testified that the arrest took place on 7th Avenue just north of W. 114th Street. (Id. at 42.) Officer Lawson testified that approximately five minutes had elapsed from the time he observed the sale until he learned of Ward's arrest. (Id.) Officer Lawson continued to observe the Defendant during this five minute time period. (Id. at 14, 15, 43.)

In his videotaped statement at the New York County District Attorney's Office, Ward denied buying or possessing crack cocaine. (See Videotaped Interview of Eric Ward, Defense Ex. 19.) Ward also denied knowing the Defendant. (Id.) Ward accused Officer Salmeron of falsely arresting him and describes rough treatment by the officers. (Id.) Additionally, Defendant notes that in Ward's videotaped statement, Ward is not wearing a hat. (Id.) On September 7, 2011, however, Ward pleaded guilty to Criminal Possession of a Controlled Substance in violation of N.Y Criminal Penal Law § 220.20. (Defense Ex. 16.)

The Arrest of Defendant

Officer Lawson testified that during the arrest of Ward he was "repeating descriptions of the defendant in this case and his location and what he was doing" to the arresting officers. (Id. at 14.) Officer Lawson described Defendant as a medium build, African-American male with facial hair. (Id. at 35.) Officer Lawson stated that after the exchange with Ward, Defendant walked back onto the stoop and then returned to the sidewalk and "appeared [to Officer Lawson] as if he was about to leave the location." (Id. at 14, 15.) Upon observing this, Officer Lawson radioed the apprehension team to move in and arrest the Defendant. (Id. at 14.) Officer Lawson repeated the description of the Defendant to the apprehension vehicle. (Id. at 15.) A couple seconds after the arrest of Ward, Officer Salmeron testified that the apprehension team received another transmission from Officer Lawson providing a description of Defendant. (Id. at 64.) This transmission described the individual who sold the drugs to Ward as a "male black . . . standing in front of [building number] 204." (Id.) According to Officer Salmeron, Officer Lawson's transmission also stated that it looked like "he [the seller] was getting ready to move." (Id.) Officer Roberts testified that after hearing Officer Lawson's description of Defendant, he walked westbound on W. 114th Street and observed a man matching the ...


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