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United States v. Pass

United States District Court, E.D. New York

September 11, 2014

JAMES PASS, Defendant.


WILLIAM F. KUNTZ, II, District Judge.

Defendant James Pass is charged with being a felon in possession of a firearm. On September 12, 2013, Defendant was allegedly engaged in suspicious behavior at a Brooklyn Macy's store. When store security guards apprehended him and opened his backpack, they allegedly discovered a loaded.40 caliber semi-automatic handgun and stolen clothing. Following his arrest and indictment, Defendant moved to suppress the gun, its magazine, and its cartridges, as well as the clothing and his post-arrest statements. However, because the government has represented to the Court that it will not introduce any statements by the Defendant to the NYPD or to the Macy's employees, only the gun, magazine, cartridges, and clothing are now at issue. Both the government and Defendant agree that there are no disputed issues of fact relevant to the suppression of this physical evidence. Applying bedrock principles of Fourth Amendment jurisprudence, the Court denies Defendant's motion.


A. Procedural History

On February 29, 2008, Defendant James Pass pled guilty to being a felon in possession of a firearm in the Eastern District of New York. See Dkt. 35, United States v. Pass, 07-cr-62 (E.D.N.Y. 2007) (Gleeson, J.). Defendant was sentenced to 52 months' imprisonment and 3 years of supervised release. Id. at 35.

On September 17, 2013, the criminal complaint in the immediate action was filed against Defendant accusing him of being a felon in possession of a firearm. See Dkt. 1 ("Compl."). The Complaint alleged that Defendant entered a Macy's in Brooklyn while carrymg an empty backpack, and that he subsequently entered a dressing room with the backpack and seven items of clothing. Id. at 2. When Defendant exited the dressing room with only two items of clothing and what appeared to be a full backpack, he was intercepted and asked to go to Macy's Loss Prevention office. Id. The Store Detective found clothing in the backpack, as well as a firearm, and then notified the NYPD. Id. at 3. NYPD subsequently recovered a loaded 40 caliber highpoint semi-automatic pistol, model number JCP, from the backpack. Id. An Alcohol, Tobacco, Firearms and Explosives interstate nexus expert found that the firearm was manufactured outside the state of New York. Id.

On October 1, 2013, Defendant was indicted and charged with being a felon in possession of a firearm, in violation of 18 U.S.C. Sections 922(g)(l), 924(a)(2), and 3551 et seq. Dkt. 6. The government gave notice that upon conviction, the government would seek forfeiture pursuant to 18 U.S.C. Section 924(d) and 28 U.S.C. 2461(c). Id. at 1-2.

Defendant pled not guilty at his arraignment on October 11, 2013. Dkt. 9. On June 2, 2014, following a period during which Defendant elected to represent himself, [1] current defense counsel appeared in this action. Dkt. 27. Defendant, through successor counsel, filed the immediate Motion to Suppress on June 27, 2014, (Dkt. 29, "Mot."); the government filed its Opposition on July 28, 2014, (Dkt. 32, "Opp."); and Defendant filed his Reply on August 15, 2014 (Dkt. 35, "Reply"). On August 20, 2014, the government filed a letter informing the Court that "it [did] not intend to introduce any statements of the defendant to any NYPD officer or detective or any Macy's employee in its case-in-chief at trial" so "the only remaining issue to be addressed at a suppression hearing is the admissibility of the gun discovered by Macy's employees." Dkt. 36 ("Sur-Reply").

B. Additional Facts Adduced by Defendant

Defendant introduces certain factual allegations that purportedly contravene the Complaint in this action. See Dkt. 29-1 ("Def.'s Memo"), at 3-4. Defendant alleges that on the day of the arrest, he was waiting for a friend about five to six feet from the exit doors of Macy's. Id. at 3. Several Macy's security personnel then approached him from behind and "forcibly e[s]corted him to the second floor." Id. Defendant claims that he was inspecting merchandise from several departments for "over a period of an hour, " and that from video surveillance, "it is difficult to discern that the backpack [was] full." Id. at 3-4.

C. The Suppression Hearing

At the September 10, 2014 hearing on Defendant's Motion to Suppress, the government reiterated that there were no relevant disputed factual issues regarding the suppression of physical evidence-e.g., there was no issue of fact that the Macy's employees were neither agents nor employees of either the state or federal government. Accordingly, the government argued, the motion to suppress turned solely on a question of law. Defense counsel concurred with the government that there were no factual disputes to be determined. Defendant declined to testify.

The government further argued that the Fourth Amendment does not apply to private actors, such as the Macy's employees who initially stopped the Defendant and discovered the gun in the first instance. When questioned, the government stated that it was aware of one 42 U.S.C. ยง 1983 case in which a private security officer was determined to be an agent of the government. See Rojas v. Alexander's Dep't Store, Inc., 654 F.Supp. 856, 858 (E.D.N.Y. 1986) (Nickerson, J.). However, the government argued, that case was factually distinguishable. Defense counsel did not argue that Rojas was ...

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