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United States of America v. Dontae Sebbern and Dexter Waiters

November 30, 2012


The opinion of the court was delivered by: Townes, United States District Judge:


Defendant Dexter Waiters moves to suppress "all physical evidence" taken from him at the time of his arrest as "fruits of an unreasonable seizure." On November 28, 2012, this Court conducted a hearing with respect to this motion. The only witness who testified at hearing was New York City Police Officer Richard Ortiz, the officer who arrested Mr. Waiters on November 7, 2009.


Officer Ortiz testified that at approximately 4:30 a.m. on November 7, 2009, he and five other New York City police officers from the 120th Precinct's Midnight Anti-crime Team were at 201 Arlington Avenue in Staten Island, investigating a report that shots had been fired in that vicinity (4-7, 18).*fn1 At around 4:50 a.m., the officers received a report via police radio that shots had also been fired at the Holland Houses, an apartment complex located a few blocks away (7-8, 18-19, 27-28). Officer Ortiz was familiar with the Holland Houses, having gone there approximately 50 or 60 times over his 111/2 years in the Anti-crime Team in response to reports of shootings, robberies, assaults and domestic disputes (7-8, 22).

The officers immediately responded to that radio transmission by driving to the Holland Houses (19). The Officers drove in two cars, the first of which was occupied by Sergeant Tai and his chauffeur, Officer Piscopo (8). Ortiz and the three remaining officers -- Officers Pena, Kim and Arguello -- followed in a second, unmarked car (8-9). Although they drove quickly -- at approximately 40 to 45 miles per hour -- and exceeded the 35 mile-per-hour speed limit (21), traffic was so light at that hour that the officers did not use their emergency lights during the one- to one-and-one-half-minute drive to the Holland Houses (19-20).

As the car carrying Ortiz and his three fellow officers was proceeding north on Holland Avenue, they encountered a black Mercedes Benz driving west "at a high rate of speed" on Benjamin Place, a road running along the southern border of the Holland Houses (10, 21). The Mercedes ran though a stop sign on the corner of Benjamin Place and Holland Avenue, nearly striking the officers' car (10). After swerving to avoid a collision, the officers engaged their vehicle's emergency lights and siren, but the Mercedes continued "going at a high rate a speed" (11-12, 23).

The officers pursued the Mercedes for about a block, at which point the Mercedes turned right into a parking lot at the Holland Houses (11-12, 24). After making the turn, the Mercedes stopped momentarily while one of the passengers exited the vehicle and began running toward one of the Holland Houses (12, 24). Officers Pena and Arguello promptly gave chase, but Officers Ortiz and Kim (hereafter, the "Officers") remained in the unmarked police car (12-13, 24-25).

Immediately after the man fled the car, the Mercedes continued further into the parking lot, with the police car -- its lights still flashing -- in pursuit (13). Seconds later, the Mercedes stopped again and two more men -- the driver and another passenger -- fled the car (13, 25).

Officer Ortiz initially pursued the driver, but subsequently abandoned that chase and joined Kim in pursuing the passenger (13-14).

After a brief chase across the parking lot, the man -- later identified as defendant Waiters -- tripped and fell (14-15). Although the Officers approached him with their guns drawn, Waiters did not immediately submit to the Officers' authority (14). After a "little bit of a fight," the Officers "were able to place handcuffs on him, at which point [they] were able to pat him down for weapons" (14). The Officers did not recover any weapons, but discovered that Waiters was wearing a military-grade bullet proof vest (14-15, 27).

Ortiz subsequently returned with Waiters to the Mercedes (16). On the ground near that vehicle, Ortiz observed a silver gun (16). There was no evidence offered at the hearing to suggest that this weapon was connected with defendant Waiters.

This Court notes that Officer Ortiz's testimony is largely consistent with set forth in an affidavit submitted by Waiters in connection with this motion. Waiters states that he was driving a motor vehicle in the vicinity of 85 Holland Avenue in Staten Island at approximately 4:55 a.m. on November 7, 2009, when he was pulled over by a police car. Affidavit of Dexter Waiters dated Nov. 5, 2010 ("Waiters Affidavit"), at ¶¶2, 5-6. Waiters further states that "[i]n response to being stopped by the police," he ran from the vehicle. Id. at ¶8. In addition, Waiters acknowledges that "the police claim to have recovered a loaded 9 millimeter handgun" from the car after he fled, id. at ¶9, although he does not allege any connection with this weapon.

However, Waiters' version of events differs from Officer Ortiz's account in two major respects. First, Waiters states that he was the driver, rather than a passenger, in the Mercedes. Waiters Affidavit at ¶3. Second, Waiters denies having done anything to warrant the traffic stop, stating that he was "in compliance with all relevant traffic rules," id.; that the vehicle he was driving "was in proper working order," id. at ¶4; that his headlights and tail lights were illuminated, id., and that he "had engaged in no illegal activity prior to be approached by the police," id. ...

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