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United States v. Witty

United States District Court, E.D. New York

July 26, 2017

UNITED STATES OF AMERICA,
v.
MOSES WITTY, Defendant.

          MEMORANDUM & ORDER

          MARGO K. BRODIE United States District Judge.

         Defendant 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.

         I. Background

         a. Criminal complaint

         At 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.)

         b. Motion to suppress

         Witty 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.)

         c. Suppression hearing

         The 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.)

         Captain 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, [1] 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. 35:1-3.)

         Captain 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.”[2] (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. 58:4-9.)

         Upon 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. 45:14-46:3.)

         The 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. 49:8-10.)

         Officer 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.[3](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.)

         Captain 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.)

         At some 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.”[4] (Tr. 52:14-16.)

         II. ...


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