United States District Court, E.D. New York
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, District Judge.
Defendant Angel Galan is charged in a one-count indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Galan seeks to suppress a single ammunition cartridge recovered from his pocket at the scene of his arrest, and substances alleged to be cocaine and marijuana recovered from the same pocket at the police precinct. The Court held a suppression hearing on February 4, 2015. The government called as witnesses Police Officers Andy Cruz and Wilson Verdesoto, and Lieutenant Barbara Fisher, all of the New York Police Department, Housing Bureau Police Service Area 3 ("PSA-3").
For the reasons set forth below, Galan's motion to suppress is denied in its entirety.
FINDINGS OF FACT
On the evening of June 7, into the early morning hours of June 8, 2014, Officers Cruz and Verdesoto were working together as partners, as they had in the past, assigned to PSA-3's anticrime patrol, a plainclothes unit that patrols public housing developments to deter and interdict major criminal activity within the particular geographic area. (Cruz Tr. 7; Verdesoto Tr. 77.) That night, they were working within the confines of the 90th Police precinct in Bushwick, Brooklyn, a high-crime area in which police had previously received complaints of robberies, shootings, and drug and gang activities. (Cruz Tr. 11-12, 44, 51; Verdesoto Tr. 79-80.) Their tour of duty spanned from 5:30 p.m. on June 7 through 2:05 a.m. on June 8. (Cruz Tr. 10; Verdesoto Tr. 79.) It was a clear summer evening, and they patrolled in plainclothes and in an unmarked Ford Taurus. (Id. ) Their supervisor that evening, Lieutenant Fisher, was working from 5:00 p.m. on June 7 through 1:45 a.m. on June 8, and as is customary, Lieutenant Fisher patrolled with the officers during their tour, and, as she testified, was present for the encounter with Galan. (Fisher Tr. 109-10, 128; Cruz Tr. 10; Verdesoto Tr. 89.)
At approximately 1:40 a.m. on June 8, Cruz, Verdesoto and Fisher were driving northbound on Manhattan Avenue at a speed of about five miles per hour with the driver and passenger side windows open. (Cruz Tr. 13, 22; Verdesoto Tr. 90.) Officer Verdesoto was driving; Officer Cruz sat in the front passenger seat, while Lieutenant Fisher was seated behind Officer Verdesoto in the rear left passenger seat. (Cruz Tr. 13; Fisher Tr. 110.)
Officer Cruz first saw defendant Angel Galan as Galan exited the front door of 50 Manhattan Avenue, part of the public housing development known as the Borinquen Houses. (Cruz Tr. 14-15, 18-19.) Galan made eye contact with Cruz, and then walked northbound down Manhattan Avenue toward the intersection with Siegel Street, in the same direction as the officers were travelling. (Id. at 15, 51, 53.) Officer Cruz saw that Galan was holding a clear, plastic cup by the top in his right hand with his arm extended close to his body. (Id. at 20-21.) Based on his experience, Officer Cruz suspected that the cup might contain alcohol, and testified that he notified Officer Verdesoto that "the male" might have an open container. (Id. at 21-22, 62.) Galan continued to walk on the sidewalk ahead of the police car, looking back in the officers' direction multiple times, "suspiciously, " and was "almost like hugging the wall" of 50 Manhattan Avenue, which Officer Cruz found suspicious. (Id. at 22, 56, 74.)
Officer Cruz briefly turned his attention away from Galan and toward a group of three or four men who had also exited 50 Manhattan Avenue, and after observing that these individuals were just talking, Cruz turned his attention back to Galan. (Id. at 23.) Galan had picked up his pace "real quick, " and continued to look back at the officer's vehicle as he walked. (Id. ) Galan then turned right at the first intersection heading eastbound on Siegel Street, and Officer Cruz lost sight of him "for quick seconds." (Id. at 24.) Cruz testified that at this point, he heard the sound of a cup hitting the concrete. (Id. at 24, 52.)
Officer Cruz told Verdesoto to turn right onto Siegel Street. (Verdesoto Tr. 92; Fisher Tr. 111.) After rounding the corner, Cruz saw Galan once again, and saw the cup on the ground. (Cruz Tr. 24, 52.) At this point, both Officer Verdesoto and Lieutenant Fisher testified that they first noticed Galan; Verdesoto also testified that he saw Galan drop the cup. (Verdesoto Tr. 81, 91-93; Fisher Tr. 111, 115, 118.) As Officer Cruz recounted, Galan, who had previously been walking close to the wall of 50 Manhattan Avenue on the right side of the sidewalk, was now all the way on the left side of the sidewalk, "walking against the parked vehicles" along the curb. (Cruz Tr. 24, 59, 61.) Officer Cruz alerted Officer Verdesoto that he was going to get out of the car,  as Galan had committed a littering violation. (Id. at 25, 62.)
Officer Cruz exited the unmarked vehicle approximately two car lengths down the block. (Id. at 24, 60.) Officer Cruz then approached Galan by walking between two parked vehicles, a minivan to his left, and a car on his right. (Id. at 25, 63-64.) Officer Cruz could not see Galan until the officer reached the sidewalk. (Id. at 63.) Once there, Cruz saw Galan, "bending down" or "squatted down" next to the minivan parked at the curb, with his back toward Cruz facing away from the officer. (Id. at 25-27, 65.) Officer Cruz then observed Galan place his left hand in the area of his waistband on his right side, make a motion toward the tire of the vehicle with his left hand extended, and place a black object on the front tire of the minivan. (Id. at 25, 65.) Although Cruz could not actually see Galan remove the object from his waistband or identify the object, Cruz saw the black object in Galan's hand as Galan extended his left arm away from his body toward the tire. (Id. at 66.) Officer Cruz testified that he did not believe the object was a firearm, and he did not fear for his safety. (Id. at 26, 66.) Both Cruz and Verdesoto testified that there was no one else in the vicinity at the time. (Cruz Tr. 41, 72; Verdesoto Tr. 86.)
Officer Cruz then took out his shield, identified himself as a police officer, and instructed Galan to step away from the vehicle. (Id. at 29, 66.) Officer Cruz did not have his gun drawn. (Id. at 26-27.) Galan complied, walking four or five steps backwards away from the minivan with his hands raised until Officer Cruz told him to stop. (Id. at 29, 66-67.) Officer Cruz detained Galan away from the minivan, on the opposite side of the sidewalk near a fenced-in area at the back of 50 Manhattan Avenue. (Id. at 32, 68-69.)
Meanwhile, once Officer Cruz left the vehicle, Officer Verdesoto drove approximately ten feet farther down Siegel Street and stopped his vehicle. (Verdesoto Tr. 82.) Both he and Lieutenant Fisher exited. (Id.; Fisher Tr. 112.) Lieutenant Fisher approached Officer Cruz and Galan. (Id. ) Officer Verdesoto walked to the sidewalk, traveling between the front of the minivan (parked to Verdesoto's right) and another parked car (on his left). (Cruz Tr. 67; Verdesoto Tr. 82.) Officer Cruz directed Verdesoto to check the front passenger tire of the minivan. (Id. ) Officer Verdesoto took out his flashlight, shined it on top of the tire, and recovered a.40 caliber Smith & Wesson firearm. (Cruz Tr. 40; Verdesoto Tr. 83, 99.) Officer Verdesoto then gave Officer Cruz a pre-arranged signal to arrest Galan by making an "X" with his arms, and Officer Cruz placed Galan in handcuffs. (Cruz Tr. 34, 68-69; Verdesoto Tr. 83; Fisher Tr. 116.) Lieutenant Fisher testified that she heard Officer Verdesoto say "yo, yo, Fish, we got it, " referring to her last name, but indicated that she did not see, at that moment, what Officer Verdesoto recovered. (Fisher Tr. 112-13.) Approximately two minutes elapsed from the time Officer Cruz exited the vehicle to the time he arrested Galan. (Cruz Tr. 73.) At no time during the encounter with Galan did any of the officers draw their weapons. (Fisher Tr. 126.)
Officer Verdesoto unloaded the firearm he recovered and found one round loaded in the chamber, and six rounds, inserted backwards, in the magazine. (Cruz Tr. 38, 41; Verdesoto Tr. 83, 85.) Because of the placement of the ammunition, Officer Verdesoto had some difficulty unloading the firearm. (Verdesoto Tr. 84-85.)
Immediately after placing Galan in handcuffs, Officer Cruz frisked Galan pursuant to regular protocol, patting him down for weapons or other items that could pose a danger to Galan or the officers. (Cruz Tr. 34, 69; Verdesoto Tr. 100, 105; Fisher Tr. 113.) Officer Cruz felt a small hard object the right front pocket of Galan's shorts, which Officer Cruz removed and identified as a live.40 caliber cartridge. (Cruz Tr. 35.) Both Officer Verdesoto and Lieutenant Fisher observed the frisk; Lieutenant Fisher did not see Officer Cruz recover anything; Officer Verdesoto saw ...