United States District Court, E.D. New York
MEMORANDUM & ORDER
K. BRODIE United States District Judge.
Moses Witty is charged in a two-count indictment with being a
felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2), and with possession of
a defaced firearm in violation of 18 U.S.C. §§
922(k) and 924(a)(1)(B). (Indictment at 1, Docket Entry No.
10.) Witty moves to suppress the firearm recovered from his
person, arguing that the firearm was discovered as the result
of an unlawful search and seizure. (Def. Mot. to Suppress
(“Def. Mot.”), Docket Entry No. 15.) After a
suppression hearing on February 28, 2017, the parties
submitted supplemental briefing. (See Def. Mem. in
Supp. of Def. Mot. (“Def. Mem.”), Docket Entry
No. 29; Gov. Opp'n to Def. Mem. (“Gov.
Opp'n”), Docket Entry No. 31; Def. Reply in Supp.
of Def. Mot. (“Def. Reply”), Docket Entry No.
32.) For the reasons discussed below, the Court denies the
motion to suppress.
approximately 9:40 PM on January 8, 2016, three New York
Police Department (“NYPD”) officers observed
Witty sitting on a bench in Robert Venable Park (the
“Park”) while they were on patrol in an unmarked
police vehicle near the intersection of Conduit Boulevard and
Belmont Avenue in Brooklyn, New York. (Compl. ¶ 2,
Docket Entry No. 1; Tr. of Suppression Hr'g dated Feb.
28, 2017 (“Tr.”) 34.) The officers parked the
vehicle and approached Witty, “who seemed very
nervous.” (Compl. ¶ 2.) The officers asked Witty
whether he knew that the Park was closed and Witty responded
that he did not. (Id.) The officers then asked Witty
for identification and he produced a check cashing
identification card with a faded picture but without a date
of birth. (Id.) The officers asked Witty for his
date of birth but he “would not respond and continued
to seem nervous.” (Id.) At that point, the
officers decided to take Witty to the police precinct to
verify his identity. (Id.) One of the officers asked
Witty to stand so that he could perform a safety pat-down.
(Id.) As Witty stood up from the bench, one of the
officers saw a bulge in Witty's back pant pocket and the
handle of a firearm protruding from the same pant pocket.
(Id.) The officers recovered and secured a loaded
.25 caliber F.E.I. Semi-automatic pistol with obliterated
serial numbers from Witty's back pant pocket.
(Id.) The officers arrested Witty and at the time of
his arrest, Witty stated, “I fucked up. I'm going
away, aren't I?” (Id.) Witty was taken to
the 75th Precinct for processing. (Id. ¶ 3.)
Motion to suppress
moved to suppress the physical evidence found on his person
and the statements he made at the time of the arrest. (Def.
Mot. 1.) Witty alleges that he was sitting on a park bench
when police officers approached him and began to question
him. (Decl. of Moses Witty in Supp. of Def. Mot.
(“Witty Decl.”) ¶ 2, Docket Entry No. 15-1.)
The officers asked him to stand and patted him down.
(Id.) The officers recovered a small firearm from
his rear pocket and he later confessed to possession of the
firearm. (Id.) Witty alleges that he was not aware
that the Park was closed. (Id.) Witty argues that he
was not doing anything “visibly wrong or illegal to
cause the police to question and search [him].” (Witty
Decl. ¶ 3, Docket Entry No. 15-1.) Witty requested an
evidentiary hearing. (Decl. of Michael Weil in Supp. of Def.
Mot. ¶ 5, Docket Entry No. 15-2.)
Court held a suppression hearing on February 28, 2017.
(Minute Entry dated Feb. 28, 2017; Tr. 1.) The Court received
exhibits and heard testimony from Captain Timothy Skretch,
one of the officers present at Witty's arrest. (Tr. 28:2,
33:12-13, 38:17-19, 59: 16-17.)
Skretch testified that on January 8, 2017, he was on patrol
in an unmarked police car with Sergeant Robert Agate and
Police Officer Noel D'Amico in the vicinity of the Park
that he described as a “high-crime” area. (Tr.
30:1-25, 31:1-17.) At approximately 9:30 PM, the officers
were driving eastbound on Belmont Avenue, which borders the
Park,  and Captain Skretch observed Witty sitting
on a bench along a lighted pathway inside the Belmont Avenue
entrance to the Park. (Tr. 34:11-25, 36:17-21.) Witty drew
Captain Skretch's attention because the Park “was
supposed to be closed at dusk” and it is a violation of
the New York City Parks Code (“Parks Code”) to be
in the Park after dusk. (Tr. 35:4-6, 35:12-17.) Captain
Skretch did not observe anyone else in the Park. (Tr.
Skretch testified with the aid of photographs of the signs at
the three entrances to the Park. (Tr. 38:22-40:6.) The sign
at the Belmont Avenue entrance was titled
“Playground” and included a list of activities
that “Playground rules prohibit” which included,
among other things, “[e]ntering the playground after it
is closed, ” barbequing, using illegal drugs and
alcohol, and littering. (Photograph of sign at Belmont Ave.
entrance, Gov. Ex. 2F, annexed to Gov. Opp'n as
Attachment 1; Tr. 38:10.) The sign also stated that the
“playground closes a[t] dusk.” (Tr. 40:3-6.) The
Sheridan and Sutter Avenue signs included the same
prohibitions as the Belmont Avenue sign but the rules were
labelled “Park rules, ” rather than playground
rules, and similarly, the signs were titled “New York
City Parks.” (Photograph of sign at Sheridan Ave.
entrance, Gov. Ex. 2D; Photograph of sign at the Sutter Ave.
entrance, Gov. Ex. 2B.) The Sheridan and Sutter Avenue signs
provided that “[t]his park closes at
dusk.” (Id.; Tr. 39:7-11.) Captain
Skretch testified that, to his knowledge, the signs were not
obstructed in any way on the night of the arrest. (Tr.
61:20-25.) The Park has a skate park, basketball courts,
handball court, and a workout area. (Tr. 57:16-58:8.) The
Park also has a separately fenced-in swing set for smaller
children near the Sutter Avenue side of the Park. (Tr.
observing Witty in the Park, the officers circled the
perimeter of the Park in the police car and returned to the
Belmont Avenue entrance. (Tr. 41:2-43:13.) The gate at the
Belmont Avenue entrance to the Park was open and the officers
drove the car onto the pathway into the Park and stopped the
vehicle just short of the bench where Witty sat. (Tr.
43:14-44:8, 60:3-11.) Captain Skretch did not believe that
the siren was activated and could not recall whether the
lights were activated as the car approached Witty. (Tr.
three officers got out of the vehicle and approached Witty.
(Tr. 44: 21-24.) Officer D'Amico approached Witty
directly and Sergeant Agate and Captain Skretch “took
positions around the bench.” (Tr. 46:6-8.) Officer
D'Amico was standing immediately next to Witty on his
right side. (Tr. 49:3-7.) Captain Skretch was standing
directly in front of Witty but about five-to-seven feet away
from him. (Tr. 48:20-25.) Sergeant Agate was standing at a
similar distance from Witty, but to Witty's left. (Tr.
D'Amico asked Witty why he was in the Park and Witty
responded that he was waiting for a friend. (Tr. 46: 10-14.)
Witty also said that he did not know the Park was
closed.(Tr. 62:22-63:12.) Officer D'Amico then
asked Witty for identification so that Captain Skretch could
use his cellphone to search the NYPD's database for any
relevant records pertaining to Witty. (Tr. 46:16-17,
47:5-48:5.) Witty provided a “sort of paper
receipt” and Officer D'Amico handed it back to
Witty because it did not include identification information.
(Tr. 46:18-23.) Officer D'Amico then asked Witty for his
name and date of birth. (Tr. 47:3-4.) Witty gave Officer
D'Amico his correct name, (Tr. 55:9-13), but did not
provide a valid date of birth. The government recalled
Captain Skretch to clarify the testimony regarding what
information, if any, Witty provided in the Park about his
date of birth. According to Captain Skretch's initial and
subsequent testimony, Witty “originally had stated that
his birthday was sometime in September, ” but then gave
a different date of birth and, upon returning to the
precinct, the officers later determined his “birthday
was actually in December.” (Tr. 48:7-10, 55:3-8,
71:7-13.) Witty remained seated on the bench as the officers
approached him and began to question him. (Tr. 55:18-56:6.)
Skretch was unable to locate Witty in the NYPD database. (Tr.
50:13-14.) Based on his training and experience as a police
officer, Captain Skretch observed that during
D'Amico's questioning, Witty “appeared to be
nervous, given the fact that he was changing his date of
birth.” (Tr. 48:11-19.) Witty's behavior and the
inability to locate him in the NYPD database led Captain
Skretch to conclude that he “seemed to be evasive; that
he was attempting to give [the officers] a false
identity.” (Tr. 48:13-18.) Captain Skretch continued to
search for Witty in the NYPD database. (Tr. 49:20-21.)
point, Captain Skretch heard Officer D'Amico ask Witty to
stand up from the bench and as Witty was standing,
D'Amico instructed Witty to get on the ground. (Tr.
49:22-24, 50:19-23.) Captain Skretch looked up from his
cellphone and saw that Officer D'Amico was “taking
[Witty] down to the ground on the sidewalk” and he
immediately began to assist. (Tr. 51:10-14.) In the process
of taking Witty to the ground, Officer D'Amico stated a
code word to Captain Skretch communicating that Witty was in
possession of a gun. (Tr. 51:14-16.) The officers handcuffed
Witty, secured the gun, (Tr. 51:18-52:3), and took Witty to
the 75th Precinct, (Tr. 52:12-13). On the way to the
precinct, Captain Skretch overheard Witty say “I'm
fucked.” (Tr. 52:14-16.)