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United States v. Harris

United States District Court, Second Circuit

December 20, 2013

UNITED STATES OF AMERICA
v.
JULIAN HARRIS, Defendant.

MEMORANDUM & ORDER

ALISON J. NATHAN, District Judge.

Before the Court is Defendant Julian Harris's motion to suppress a firearm found on his person during a stop-and-frisk, and post-arrest statements that he made about the firearm. (Dkt. No. 12). For the reasons set forth below, the Court denies the motion in its entirety.

I. Procedural History

The Defendant was indicted on July 24, 2013, on one count of being a felon in possession of a firearm in violation of 18 U.S.C. ยง 922(g)(1). On October 10, 2013, the Defendant filed a motion to suppress (1) the firearm that forms the basis of the charge against him and (2) postarrest statements concerning his possession of that firearm.

The Court held an evidentiary hearing on the Defendant's motion on November 8, 2013. The following individuals, members of the New York Police Department ("NYPD"), testified at the hearing: Officer Patrick Jean, Officer Abraham Villavizar, and Sergeant Michael Gee. Following the hearing, the Court received briefing from the parties. (Dkt. Nos. 25, 26).[1] The Defendant submitted an affidavit in support of his motion at the time it was originally filed, but he did not testify at the suppression hearing.

Post-hearing oral argument on the Defendant's motion was scheduled for December 18, 2013, at 4:00 PM. However, the Defendant did not appear in the courtroom at that time; he arrived about an hour late, after the conference had been adjourned. Subsequently, the Court determined that oral argument was unnecessary to its disposition of the instant motion. (Dkt. No. 29). The Court's findings of fact and conclusions of law are set forth below.

II. Findings of Fact

As a preliminary matter, the Court found the three police officers who testified at the evidentiary hearing to be credible in their testimony. Although there were some discrepancies between their testimony and their memories were not perfect, they answered questions forthrightly, provided reasonable responses and explanations, and appeared credible and candid in all respects. Based on the testimony and evidence presented at the hearing, the Court makes the following findings of fact.

The incident in question took place on May 30, 2013. NYPD Officers Jean, Villavizar, and Gee were on patrol in an unmarked police car. Officer Jean was driving, Sergeant Gee was in the front passenger seat, and Officer Villavizar was in the rear passenger seat. (Tr. 13-14, 57). At approximately 1:00 AM, driving westbound on Burke Avenue in the Bronx, the patrol car approached the intersection of Burke and Holland Avenues. Burke Avenue is a two-way street. The westbound lane has two lanes of traffic and also a parking lane next to the curb. (Tr. 17; Gov't Ex. 1). This is a high-crime area. (Tr. 11, 56).

Upon approaching the intersection, the police officers noticed a man running across Burke Avenue and then, once across, continuing eastbound on Burke, on the south side of the street. (Tr. 16, 57-58). The officers noted the "very fast" speed at which the man was running and that he had his head "in a down position, " with his "chin... to his chest." (Tr. 16).

Turning their attention to the place that the officers believed the runner had fled from, they observed a black Toyota Camry. The Camry was double-parked and the tail was partially in the intersection. (Tr. 17, 59-60, 101). Officer Jean observed the Defendant standing outside of the Camry, towards the rear of the vehicle. Because of the positioning of the two men and the car, Officer Jean was only able to see the Defendant from "the chest area up." (Tr. 19). He was close enough, however, to make eye contact with the Defendant when the Defendant looked in his direction. Following that eye contact, the Defendant made a counterclockwise movement, turning away from Officer Jean's direction. The Defendant then bent his arm at the elbow "as if [the Defendant] was placing something in his shirt or jacket or pants." (Tr. 20). At that point, Officer Jean watched the Defendant enter the Camry on the passenger side.

Importantly, upon making these observations, Officer Jean stated to Sergeant Gee and Officer Villavizar that he suspected that the Defendant may have a firearm. (Tr. 23-24). Officer Villavizar testified that he recalled Officer Jean stating this observation. (Tr. 61). Although Sergeant Gee testified that he did not recall hearing Officer Jean make this statement, Sergeant Gee himself saw the Defendant make the same set of motions and came to the same conclusion that the Defendant might have a weapon. (Tr. 106).

Following the Defendant's entry into the Camry, the car pulled away from where it had been standing and changed from the right lane to the left lane without signaling. At that point, the officers stopped the Camry. As the Camry came to a stop, Officer Jean told his partners "to be careful." He testified that he said this because of his belief that there was a weapon inside the vehicle. (Tr. 25).

Upon stopping, the Defendant exited the vehicle, but returned to his seat after being ordered to do so by Sergeant Gee. Officer Jean approached the driver's side of the car and asked for driver's license, registration, and insurance papers. The driver indicated that the car belonged to her mother. During this time, Officer Jean kept his focus on the hands of the car occupants because of his concern that there was a weapon in the vehicle. (Tr. 26). He observed the Defendant "fooling around as he was trying to search for something." (Tr. 28). In response, Officer Jean instructed him to stop moving and keep his hands in plain sight. (Tr. 28, 65). Officer Jean also asked the driver if she ...


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