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United States v. Jones

United States District Court, E.D. New York

March 29, 2018

UNITED STATES OF AMERICA,
v.
KELVIN JONES, Defendant.

          MEMORANDUM AND ORDER

          DORA L. IRIZARRY, CHIEF UNITED STATES DISTRICT JUDGE

         Defendant Kelvin Jones (“Defendant”) is charged with possession with intent to distribute cocaine base, unlawful use of a firearm, and being a felon in possession of ammunition, in violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. §§ 924(c)(1)(A)(i), and 922(g)(1). On July 18, 2017, Defendant moved to suppress physical evidence and statements he made to law enforcement officers at the time of his arrest. (See Motion to Suppress (“Mot. to Suppress”), Dkt. Entry No. 24.) Defendant submitted an affidavit in support of his motion. (See Exhibit A to Mot. to Suppress (“Jones Affidavit”).) On August 7, 2017, the government responded. (See Motion to Suppress Government's Response (“Mot. to Suppress Resp.”), Dkt. Entry No. 26.) On August 22, 2017, Defendant replied. (See Reply to Response to Motion (“Mot. to Suppress Reply”), Dkt. Entry No. 27.)

         The Court held an evidentiary hearing on Defendant's motion, which began on November 16, 2017, and continued on December 14, 2017 and January 17, 2018.[1] New York City Police (“NYPD”) Officers Brian Alexander, Conway Hughes, Sonya Senra, and Randy Sanchez, and NYPD Sergeant Darnell Simon testified for the government. (See Transcripts of the November 16, 2017, December 14, 2017, and January 17, 2018 Evidentiary Hearing (“Tr.”).) Defendant introduced one exhibit, but no witness testimony.

         The Court permitted the parties to submit post-hearing briefing. On February 16, 2018, Defendant filed a brief in support of his motion to suppress. (See Letter Post-Hearing Brief in Support of Motion to Suppress (“Post-Hearing Brief”) Dkt. Entry No. 66.) On March 9, 2018, the government opposed. (See Letter Post-Hearing Brief in Opposition of the Defendant's Motion to Suppress (“Post-Hearing Opp'n”), Dkt. Entry No. 67.) On March 20, Defendant replied. (See Letter Post-Hearing Reply Brief (“Post-Hearing Reply”), Dkt. Entry No. 68.)

         For the reasons set forth below, the Court finds that the police did not have reasonable suspicion to stop Defendant, making the seizure of physical evidence and his post-stop statements inadmissible. Accordingly, Defendant's motion to suppress is granted.

         I. Findings of Credibility

         The Court finds only the testimony of Officers Senra and Sanchez credible. The Court finds critical portions of the testimony of Officers Alexander and Hughes and Sgt. Simon incredible.[2]

         II. Findings of Fact

         On the night of January 12, 2017, Officers Alexander and Hughes and Sgt. Simon[3] of the 79th Precinct Anti-Crime Unit, were on duty in the Bedford Stuyvesant area of Brooklyn. (Tr. at 7:3-7; 63.2-5; 80:16-22.) They were in plain clothes and driving in an unmarked police car. (Tr. at 7:11-14; 8:1-2; 8:5-6; 63:8-13; 80:25-81:6; 82:2-3.)

         On January 12, 2017, at approximately 11:30 p.m., the officers were driving along Herkimer Street, near New York Avenue, and stopped in front of the gate to the courtyard at Restoration Plaza. (Tr. at 8:16-24; 12:18-22; 63:14-17; 63:21-24; 81:7-24; 82:4-9.) Officer Hughes drove the vehicle; Officer Alexander sat beside him in the passenger seat; and Sgt. Simon sat in the back seat, directly behind the driver. (Tr. at 12:18-22.) During their drive, the officers saw three men walking toward Herkimer Street. (Tr. at 12:23-13:3; 63:18-20; 68:1-2; 83:4-6.) Officer Hughes testified that, from the vehicle, he saw one of the men, identified as Defendant, motioning his hand toward the midsection of his waistband and making a gripping motion. (Tr. at 12:23-13:23; 36:3-7.) Sgt. Simon testified that, from the vehicle, he saw Defendant adjusting his waistband, which indicated to him that Defendant possibly was concealing a firearm. (Tr. at 65:1-3.) Officer Alexander testified that he saw a silver object sticking out of Defendant's waistband, and “believed that [Defendant] was trying to conceal a firearm.” (Tr. at 83:13-22.) On direct examination Officer Alexander testified that he first observed the silver object sticking out of Defendant's waistband while he was sitting in the vehicle, but on cross examination, Officer Alexander testified that he first observed the silver object when he was outside of the vehicle. (Tr. at 83:13-25; 129:14-18.) Officer Hughes testified that he said aloud, “You see that, you see that, ” but neither Officer Alexander nor Sgt. Simon corroborated that statement. (Tr. at 16:14-19.) Despite their alleged observations, no officer specifically stated at the scene that he thought Defendant had a gun. (Tr. at 64:23-25; 129:23-25.)

         As they exited the vehicle to approach Defendant, the officers saw Defendant turn left on Herkimer Street and they spoke to the other two young men at the scene, who allegedly stated, “[h]e's not with us, ” referring to Defendant. (Tr. at 14:9-13.)

         Both Officers Hughes and Alexander testified that, when Officer Alexander exited the car, he identified himself as police, and commanded Defendant to stop. (Tr. at 16:20-25; 65:13-18; 85:17-20.) Officer Alexander added that he was wearing a police shield on a chain around his neck at the time, but Defendant did not acknowledge him. (Tr. at 85:21-24; 86:5-6.) When Defendant did not stop, Officer Alexander chased him. (Tr. at 86:7-10.) Defendant ran eastbound on Herkimer Street towards Brooklyn Avenue, and turned right onto Brooklyn Avenue. (Tr. at 18:7-14.) Sgt. Simon followed on foot and Officer Hughes followed by car. (Tr. at 17:6-18:18; 65:12-20.) All three officers testified that they observed Defendant shaking his leg as he ran. (Tr. at 17:6-17; 66:6-8; 87:11-12.)

         Officers Randy Sanchez and Sonya Senra were on duty that night as part of the Target Team from the 79th Precinct. (Tr. at 143:17-144:8, 163:23-164:12.) Both officers were in uniform. (Tr. at 147:25-148:1; 164:24-25.) At approximately 11:30 p.m., Officers Sanchez and Senra were walking down Brooklyn Avenue toward Herkimer Street. (Tr. at 147:21-148:3; 149:1-6; 164:20-23; 165:14-20.) As she approached the corner of Herkimer Street and Brooklyn Avenue, Officer Senra heard yelling and someone screaming “stop.” (Tr. at 167:4-11.) She looked around the corner and saw a man, identified as Defendant, running towards her. (Tr. at 167:21-168:2.) Officer Senra tackled Defendant to the ground. (Tr. at 150:13-20.) Officer Sanchez drew his weapon. (Tr. at 151:4-6.) Both officers testified to seeing a plain clothes NYPD officer round the corner onto Brooklyn Avenue in pursuit of Defendant. (Tr. at 151:7-17; 169:18-24.) Officer Sanchez recognized Officer Alexander as a member of NYPD because he wore a “color of the day arm band, ” but did not state that he saw a police shield hanging down from his neck on a chain. (Tr. at 151:10-12.)

         Officer Alexander testified that when he turned the corner onto Brooklyn Avenue, he saw Defendant face down on the ground with two uniformed officers standing in front of him. (Tr. at 87:16-24.) Officer Alexander placed Defendant in handcuffs. (Tr. at 88:10-11; 151:25-153:2; 169:20-24.) Officers Hughes and Senra and Sgt. Simon then canvassed the area that Defendant had traversed during the chase to see if he had dropped any weapons or contraband, but they did not find anything. (Tr. at 19:9-10; 66:22-67:3; 170:15-25.)

         Officer Alexander then searched Defendant. (Tr. at 88:10-13.) Officer Alexander recovered four bags of crack cocaine and cash from Defendant's jacket pockets. (Tr. at 88:12-24; 152:7-12.) Officer Alexander asked Defendant if he was running because of the crack cocaine, and Defendant said, “No, I'm going to tell you the truth. I have a gun on me.” (Tr. at 89:2-8; 152:13-16.) Officer Alexander testified that he searched Defendant's pants down by his calf area and recovered a firearm, which was loaded and cocked. (Tr. at 89:12-14; 152:17-19; 171:1-5.)

         Officer Alexander testified that Defendant asked him how much time he would get. (Tr. at 90:20-22.) Sgt. Simon testified that he heard Defendant say that he had found the gun in the bushes ...


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