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United States of America v. James Peterson

September 28, 2012

UNITED STATES OF AMERICA
v.
JAMES PETERSON, DEFENDANT.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge

OPINION & ORDER

Shortly after 4 am on February 20, 2012, two officers from the New York City Police Department ("NYPD") stopped defendant James Peterson ("Peterson") after a 911 caller reported that a man matching Peterson's description, following an altercation, had returned to the area with a gun. After the police stopped Peterson, they frisked him, found a loaded Taurus 9-millimeter handgun in his waistband, and arrested him. Peterson was later indicted as a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).

Peterson now moves to suppress the gun, claiming that it was seized in violation of the Fourth Amendment. Specifically, he argues that the portion of the 911 caller's tip communicated to the police officers who stopped him lacked sufficient indicia of reliability to justify the stop and frisk under the governing standard of reasonable suspicion. For the following reasons, Peterson's motion is denied.

I.Procedural History

On May 22, 2012, a grand jury returned a one-count indictment against Peterson, charging a violation of 18 U.S.C. § 922(g). Dkt. 3.

On July 19, 2012, Peterson moved to suppress the gun, on the grounds that it was the fruit of an unlawful stop and frisk. Dkt. 8--10. On August 8, 2012, the government filed a response. Dkt. 12. On August 17, 2012, Peterson filed a reply. Dkt. 13.

On August 23, 2012, the Court held a telephone conference with the parties to discuss the suppression hearing scheduled for August 28, 2012.*fn1

On August 28, 2012, the Court held a suppression hearing, and heard argument, on this motion. On September 10, and September 21, 2012, respectively, Peterson and the government filed supplemental briefs. Dkt. 16, 18. On September 26, 2012, Peterson filed a response to the government's supplemental brief. Dkt. 21.

II.Findings of Fact

The facts found by the Court are based on the evidence adduced at the suppression hearing. On a suppression motion, the government bears the burden of proof by a preponderance of the evidence. United States v. Echevarria, 692 F. Supp. 2d 322, 332 (S.D.N.Y. 2010). This evidence consisted of the testimony of the two NYPD officers present at the stop and frisk of Peterson, Ariel Marte and Michael O'Connor; and two tapes (GX-1A and GX-1B), which together capture a series of telephone calls in the early morning hours of February 20, 2012. The first tape (GX-1B) records a call by a civilian ("the 911 Caller") to a civilian 911 operator ("the 911 Operator"). The second tape (GX-1A) records the ensuing "radio run," which consists of a series of communications involving the NYPD radio dispatcher ("the Police Dispatcher") whom the 911 Operator contacted immediately after speaking with the 911 Caller. The first transmission in the radio run is the critical one for purposes of this decision. In it, the Police Dispatcher synopsizes the 911 call to Officers Marte and O'Connor. That synopsis formed the basis of the officers' decision to stop and frisk Peterson.

A.The 911 Call

Shortly after 4 am on February 20, 2012, the NYPD received a 911 call. The 911 Caller told the 911 Operator that he "got into an altercation with this guy" and that, although he had not seen a gun, he believed that "[the guy] got a gun now" and that the man had said he was "coming back with a gun." GX-1B. The caller stated that the man was black, and had a "black du rag on, black coat on . . . he's dressed in all black now." Id. The caller also stated that the man was in front of the caller's apartment building, which the caller identified as 739 East 182nd Street. Id. The caller gave the 911 Operator his name, address (including apartment number), and telephone number. Id.

B.The Police Dispatcher's Call to Officers Marte and O'Connor

The 911 Operator then relayed the information to the Police Dispatcher. The Police Dispatcher, in turn, radioed Officers Marte and O'Connor. The two officers were on patrol in the area in a marked vehicle at that time. Tr. 10--11, 32.*fn2 Officer Marte was driving; Officer O'Connor was in the passenger seat. Id. at 11, 32--33.The following conversation ensued:

Dispatcher: Dispute with a firearm. 739 East 182, 739 East 182 Clinton and Prospect. Male caller states male's in front of the location with a gun on him. He didn't visually see the gun, but the person said he had one. Male black, du rag, black coat, wearing all black. The complainant is in apartment [redacted] on the [redacted] floor.*fn3

Officer: [Unintelligible].

Dispatcher: 10-4.

Officer: [Unintelligible].

Dispatcher: 10-4. [Unintelligible]. Checking the call [unintelligible] to see if he's still in front, stand by one.

GX-1A.

C.Ensuing Communications Involving the Police Dispatcher

The Police Dispatcher then attempted to connect directly with the 911 Caller to confirm the information. The following call ensued:

Operator: [Dialing].

Caller: Hello?

Dispatch: Yeah, New York City Police Department. Did you call police sir? Caller: Yes I did.

Dispatch: Is the guy still in front of the building now? Can you see him?

Caller: I hope so. [Unintelligible]. My baby momma talking about that he left ...


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