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United States v. Herron

United States District Court, E.D. New York

April 29, 2014

UNITED STATES OF AMERICA
v.
RONALD HERRON, Defendant

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[Copyrighted Material Omitted]

Page 216

For Ronald Herron, also known as Ra, also known as Ra Diggs, also known as Ra Digga, also known as Raheem, Defendant: Zoe Jayde Dolan, LEAD ATTORNEY, Zoe J. Dolan, Esq., New York, NY; James E. Neuman, New York, NY; Robert Soloway, Rothman, Schneider, Soloway & Stern. P.C., New York, NY.

For Joseph Garcia, also known as Jo Jo, Defendant: Mitchell Alan Golub, Golub & Golub LLP, New York, NY; Murray Singer, Murray E. Singer, Esq., Port Washington, NY.

For Musa Marshall, also known as Slim, Defendant: James Michael Roth, Hurwitz Stampur & Roth, New York, NY.

For Crystal Lewis, also known as Ebb, Defendant: Joel Mark Stein, LEAD ATTORNEY, Law Offices of Joel M. Stein, Esq., New York, NY.

For Algenis Caraballo, also known as High-Henny, Defendant: Eric M. Creizman, Creizman PLLC, New York, NY.

For Shondell Walker, also known as M-Dot, Defendant: Martin J. Siegel, Law Office of Martin J. Siegel, New York, NY.

For USA, Plaintiff: William David Sarratt, LEAD ATTORNEY, U.S. Attorneys Office, Eastern District of New York, Brooklyn, NY; Carter H. Burwell, Shreve Ariail, United States Attorneys Office, Eastern District Of New York, Brooklyn, NY; Rena Paul, USAO - EDNY, Brooklyn, NY.

OPINION

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MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Pending before the court is Defendant Ronald Herron's pretrial Motion to Suppress the body armor seized from his person on October 7, 2008. (See Def. Mot. (Dkt. 378).)[1] On March 27, 2014, the court held an evidentiary hearing regarding Defendant's motion. (See Mar. 27, 2014, Hr'g Tr. (Dkt. 410).)[2] At the hearing the court received testimony of New York City Police Department (" NYPD" ) Officer Carlos Anchundia and Lieutenant John Fioravante. (Id.) At the conclusion, the court directed the parties to submit supplemental briefs. The testimony and documentary evidence admitted at the suppression hearing established the following facts.

I. FACTS

A. Events on the Street

On October 7, 2008, Officer Carlos Anchundia and his partner Officer Sambath Ouk, members of a unit charged with addressing quality of life offenses, were patrolling the 76th precinct in a marked police van. (Id. at 5-6, 45.) At about 6:00 p.m. the officers received a 911 radio transmission requesting a police response. (Id. at 7-8.)

The radio transmission was a " 10-10," meaning a possible crime. (Id. at 6-7, 77.) The call described a " male with a firearm,. . . black, six feet tall, blue jeans, black leather coat, wearing sunglasses" coming from a barbershop near Baltic and Hoyt Streets.[3] (Id. at 7, 25-26, 78.) The officers proceeded to drive to the Gowanus Houses, a high-crime residential area, arriving about five minutes after receiving the radio call. (Id. at 8-9, 27, 42.)

The officers pulled onto a walkway in between two buildings of the Gowanus Houses and saw Defendant, who fit the

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description provided by the 911 caller, walking alone toward their van. (Id. at 9-10, 42-45, 65.) Officer Anchundia testified that he had never seen the man before, but recalled that he was wearing blue jeans, a black leather coat, sunglasses and was six feet tall. (Id. at 9, 50.) He also noticed that the man's jacket " was a little puffier than a normal fitted leather coat would be." (Id. at 10-11.) This was " significant" to Officer Anchundia because the " bulk" reminded him of the appearance of fellow officers wearing bulletproof vests. (Id. at 11.) Officer Anchundia later learned that the man's name was Ronald Herron. (Id. at 7.)

Officer Anchundia's testimony was contradictory as to the precise order of what happened next. On direct examination he testified that as officers drove toward Defendant, he threw a clear wrapper to the ground before the officers exited the vehicle. (Id. at 11.) On cross-examination, however, Officer Anchundia testified that he saw Defendant discard the wrapper " [o]nce I step[ped] out the van." (Id. at 46.) Asked for more details about the wrapper, Officer Anchundia testified that it " was like a clear wrapper," but he did not " know what name brand it was or anything like that." (Id. at 11.) He did not know if it was a candy wrapper, a piece of foil, Saran Wrap, or the covering of a sandwich. (Id. at 49.) Officer Anchundia could not recall anything about the wrapper other than it was clear plastic. (Id. at 11, 50.) In any event, Officer Anchundia believed that Defendant had committed a " qualify of life crime" by littering. (Id. at 12.)

Officer Anchundia left the van running, placed his hand on his firearm, and began approaching Defendant, who was about 15 feet away and walking toward the van. (Id. at 13-16, 25.) Defendant did not run from them, but raised his hands and " smirked" at the officers, which Officer Anchundia interpreted to mean that Defendant was " arrogant." (Id. at 13-14, 50.) Officer Anchundia asked him to place his hands on a nearby gate. (Id. at 14.) Defendant complied and made no effort to hide anything. (Id. at 15, 53.) He was " cooperative" and " very respectful." (Id. at 52.) Officer Anchundia started patting down Defendant. (Id. at 15.) He felt a " hard object" above Defendant's chest and realized " [r]ight away" that it was a bulletproof vest. (Id.) Of the hundreds of people Officer Anchundia had stopped in his career, Defendant was the only one wearing body armor. (Id. at 61-62.) However, Officer Anchundia did not observe the outline of a gun. (Id. at 52.) After frisking Defendant, Officer Anchundia immediately placed Defendant in handcuffs, still concerned that he might possess a firearm. (Id. at 17, 54.)

At that point, Officer Anchundia intended to arrest Defendant for possession of the bulletproof vest and for littering. (Id. at 18.) However, Officer Anchundia did not look around the area for evidence of littering after handcuffing Defendant. (Id. at 19.) Asked why he did not collect the wrapper, Officer Anchundia said, " It was a mistake I made. I was just focused on the individual, that he doesn't escape or anything like that." (Id. at 19, 53.) A crowd began to gather some time after Defendant was handcuffed. (Id. at 53.)

Officer Anchundia's supervisor, Lieutenant John Fioravante, and other officers arrived at the scene about two minutes after Officer Anchundia had handcuffed Defendant. (Id. at 19-20, 79.) Officer Anchundia briefly conferred with Lieutenant Fioravante, advising him about the bulletproof vest and the littering. (Id. at 20-21, 82.) Lieutenant Fioravante testified that he knew Defendant because the latter had a " history of being known to be

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violent." (Id. at 83.) Lieutenant Fioravante explained that in May of 2008, he had observed Defendant in possession of an illegal gravity knife, for which Defendant was arrested. (Id.) Lieutenant Fioravante also testified that in May of 2008, he had spoken to Detective Joseph Fazzingo from the " narcotics major case squad" and heard " of different investigations, ongoing [federal] investigations that were occurring with Ronald Herron and other individuals." (Id. at 84.) Lieutenant Fioravante added that he heard " from other units within the police department" about " other investigations that possibly [Defendant] was involved with," including possibly in October of 2008. (Id. at 94.)

Lieutenant Fioravante testified that while on the scene, he noticed the wrapper that Defendant had thrown on the ground but did not pick it up because his " main concern was there was a crowd gathering" and he thought it best to investigate the incident further at the precinct. (Id. at 83.) Lieutenant Fioravante said that he wasn't sure then if Defendant would be charged with wearing the vest, and he intended to investigate that at the precinct, principally to ascertain whether the vest had been stolen. (Id. at 85.) He also wanted to make sure that there were no outstanding warrants for Defendant's arrest. (Id. at 84-85.) Lieutenant Fioravante instructed Officer Anchundia to place Defendant in the police van and drive him to the precinct. (Id. at 21, 84.)

B. Events at the Precinct

Once at the precinct, Officer Anchundia placed Defendant " in a prison arrester, with his name, all of his pedigree." (Id. at 28.) Defendant had been arrested " for wearing the bulletproof vest and littering." (Id.) Officer Anchundia removed some articles of clothing from Defendant, including the body armor. (Id. at 28-29, 57.) He also removed some paper and money in Defendant's pockets. (Id. at 29.) A firearm was never recovered.

While at the precinct, Officer Anchundia and Lieutenant Fioravante learned that they could not arrest Defendant for wearing the vest because it is not a crime to wear a bulletproof vest, so long as one was not using it in the commission of a crime.[4] (Id. at 28, 89.) The officers conducted an investigation into Defendant and the vest, believing that the body armor might have been ...


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