United States District Court, E.D. New York
For Ronald Mayo, Defendant: Chase A. Scolnick, LEAD ATTORNEY, Federal Defenders of New York, Inc., Brooklyn, NY.
For USA, Plaintiff:Erik David Paulsen, LEAD ATTORNEY, U.S. Attorney's Office, EDNY, Brooklyn, NY; Marcia Maria Henry, LEAD ATTORNEY, U.S. Attorney's Office, Eastern District Of New York, Brooklyn, NY.
MEMORANDUM OF DECISION
JOHN GLEESON, United States District Judge.
On July 29, 2013, upon the conclusion of a hearing on the defendant's motion to suppress evidence, I granted the motion, promising that this written memorandum explaining the decision would follow.
A. The Charge
On April 23, 2013 a grand jury in this district returned a one-count indictment charging Ronald Mayo with being a felon in possession of a firearm. ECF No. 5. The charge arose out of a street stop on the night of April 4, 2013, during which New York City Police Department (" NYPD" ) officers recovered a firearm from Mayo's waistband. On June 14, 2013 I set a schedule for Mayo's anticipated motion to suppress the firearm and also set a July 29, 2013 trial date in the event the case survived the motion. Minute Entry, June 14, 2013. However, instead of filing the motion to suppress, Mayo's counsel subsequently informed me in a letter dated June 28, 2013 that Mayo had decided to plead guilty. ECF No. 9.
The case was called for the guilty plea on July 12, 2013. Minute Entry, July 12, 2013. Mayo changed his mind about pleading guilty during the plea proceeding, and so the case was put back on track for trial on July 29, 2013. Id . The government asked whether the motion to suppress would be renewed, and Mayo's counsel responded that it would. July 12, 2013 Tr. 8:17-19, 9:12-19. The motion was simple: Mayo claimed that the firearm was seized from him after a suspicionless stop; the government claimed that the search and seizure were lawful because the police saw the firearm in Mayo's waistband before they stopped him. After discussing the matter with counsel, we dispensed with moving and responding affidavits and I scheduled the suppression hearing for the morning of the trial. July 12, 2013 Tr. 10:17-14, 13:11-23. Specifically, I informed counsel that we would select the jury but not swear it, conduct the suppression hearing, and then, if the motion were denied, swear the jury and proceed directly to the trial. July 12, 2013 Tr. 9:20-25.
As mentioned, at the conclusion of the hearing I granted the motion. Minute Entry, July 29, 2013. In light of that decision, the parties agreed that I should disband the unsworn jury panel, since the government's case against Mayo stands or falls with the evidence I suppressed. July 29, 2013 Tr. 148:6. We further agreed that by August 30, 2013, the government would inform me whether it will move to dismiss the indictment or seek appellate review of my ruling, as it is entitled to do under 18 U.S.C. § 3731. July 29, 2013 Tr. 148:21-149:5.
B. Findings of Fact
At about 10:40 pm on April 4, 2013, NYPD Officers Konrad Zakiewicz and Salwa Jwayyed and Sergeant Kwame Kipp were on a routine anti-crime patrol in the Bedford-Stuyvesant area of Brooklyn. Tr. 97:2-10 (Jwayyed). They were in plainclothes in an unmarked police vehicle. Tr. 62:10-14 (Zakiewicz), 97:13-18 (Jwayyed), 125:12-19 (Kipp). Zakiewicz was driving; Jwayyed was next to him in the front; Kipp, who was their supervising officer, rode in the back. Tr. 62:15-20 (Zakiewicz), 97:19-24 (Jwayyed), 125:20-25 (Kipp).
The officers and their sergeant were driving slowly in a northbound direction on Marcy Avenue. Tr. 62:23-63:4 (Zakiewicz). As they entered the intersection of Marcy Avenue and Clifton Place they observed the defendant Mayo walking southbound on the sidewalk on the west side of Marcy Avenue. Tr. 66:7-17 (Zakiewicz), 99:12-20 (Jwayyed), 127:19-128:2 (Kipp). Mayo was thus walking toward the police vehicle, and when the police first saw him he was in front of them and to their left,
close to the intersection with Clifton Place. Tr. 68:2-5 (Zakiewicz), 99:19-22 (Jwayyed), 128:1-6 (Kipp). That intersection, as well as the area of the sidewalk where Mayo was walking, was well-lit by one street lamp almost directly across Marcy Avenue from Mayo and another that was directly ahead ...