UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
95 Cr. 533 (HB)
UNITED STATES OF AMERICA
DECISION AND ORDER
Jay Holtmeier, Esq., David Lewis, Esq.
Assistant United States Attorneys
New York, New York 10007
For the Government.
Ramon Pagon, Esq.
Bronx, New York 10451
For the Defendant.
Harold Baer, Jr., District Judge
Defendant Carol Bayless was charged in connection with an alleged
cocaine and heroin distribution conspiracy. Defendant now moves to
suppress (1) physical evidence seized from the car she was driving at
the time of her arrest, and (2) her post arrest statements. The
Government consented to a hearing on defendant motion. On January 3 and
4, 1996 I heard testimony from three New York City Police Officers,2
viewed the defendant's video-taped statement and heard argument from the
Government and defense counsel. For the reasons which follow, I find
that the stop was in violation of the defendant's Fourth Amendment
rights and, therefore, defendant's motion to suppress is GRANTED.
The great enemy of truth is very often not the lie -- deliberate,
contrived, and dishonest -- but the myth -- persistent, pervasive and
Defendant Carol Bayless, a middle-aged black woman was arrested at
approximately 5:00 a.m. on April 21, 1995 at the corner of 176th Street
and Amsterdam Avenue in the Washington Heights section of New York City.
At the time of her arrest, defendant was driving an Alamo Rental Car
with Michigan license plates. When police officers opened the trunk of
the car, a 1995 Red Chevrolet Caprice, they found two duffle bags
containing approximately 34 kilograms of cocaine and 2 kilograms of
The prosecution's version of the events leading up to the defendant's
arrest differs dramatically from that of the defendant in her videotaped
statement. Accordingly, I have divided the background section into two
parts so as to more clearly spell out these discrepancies. Let me say at
the outset, that based on the defendant's videotaped admissions about
the events leading up to the stop, the search and her arrest, including
statements which unequivocally implicate her own son, I find her
statement to be credible and reject the testimony proffered by Officer
a. Testimony of the Arresting Officer Police Officer Richard Carroll
testified that on April 21, 1995 he and his partner, Sergeant Bentley,
both 10 year veterans of the police force, were assigned to a plain
clothes anti-crime patrol unit. On this night, they were to patrol the
northern end of Manhattan, the province of the 32nd, 33rd and 34th
Police Precincts.4 Tr. at 25. Officer Carroll defined the area of patrol
to be "from 155th Street up to the tip of Manhattan, everything north of
155th." Tr. at 4. Officer Carroll characterized this entire area as "an
area known for its high drugs . . . a hub for the drug trade." Tr. at 5.
At approximately 5:00 a.m. on April 21st the officers, who were in an
unmarked patrol car, turned onto 176th Street and observed the
defendant's car shortly thereafter. Tr. at 4-5. Officer Carroll
testified that when he first saw defendant's car, it was moving slowly
along 176th Street. Before reaching the intersection of 176th Street
and St. Nicholas Avenue the defendant pulled over to the north side of
the street and double parked the car. Tr. at 5. The officers did not
observe any one in addition to the driver in the car. Id.
Officer Carroll testified that as soon as the car stopped, four
unidentified males emerged from between parked cars on the south side of
the street. Tr. at 6. The males crossed the street walking single file,
the defendant leaned over to the passenger side of the car and pushed
the button for the trunk release. Id. The first male then lifted the
trunk open, the second and third males each placed a large black duffel
bag into the trunk and the fourth male closed the trunk. Id. Officer
Carroll testified as follows:
"As soon as the auto stopped, I observed four males come from the south
sidewalk between parked autos. They entered the street in a single file-
like walk to the rear of the auto. I saw just before they reached it the
driver of the auto lean over into the passenger side of the car. The
trunk opened a few inches. The first male opened the trunk. The next
male came and through [sic] a duffle bag, a large black duffle bag into
the back. Another large male was also carrying a black duffle bag, and
he threw that into the back. The fourth male came and closed the trunk.
Tr. at 6. Officer Carroll testified that he did not observe any
conversation between the males and the driver of the car and the entire
transaction occurred within seconds." Id.
"The driver of the auto then proceeded to the corner of 176th street and
St. Nicholas Avenue where she waited for the light to turn from red to
green. Tr. at 6. The officers pulled up behind the Chevrolet Caprice and
also waited for the light to change. Tr. at 6. According to Officer
Carroll he did not signal the driver pull the car over nor did he
encourage the driver to proceed through the intersection." Tr. at 6-7.
At this time the four males were standing on the sidewalk in the north
side of the street and when the officers' car came to a stop, the
officers were staring at the males. Tr. at 7. According to Officer
Carroll, two of the males noticed the police officers, spoke briefly to
each other and:
"[a]t that point the four males moved in different directions at a rapid
gait. The individual that . . . [Officer Carroll] watched went to the
corner of 176th and St. Nicholas, and as he reached the corner began to
run northbound on St. Nicholas." Tr. at 7.
According to Officer Carroll, the light changed to green shortly
thereafter and the defendant proceeded at a normal rate of speed through
the intersection and continued along 176th Street. Tr. at 7. The
officers followed behind and asked officers in another car if they
would, via computer, run a check on the Michigan license plate. Tr. at
7. Two blocks later, the officers turned on the red "fire-ball" light on
their dashboard and pulled the defendant over. Tr. at 8.
When asked by the Court what prompted the officers to pull the defendant
over, Officer Carroll replied: "Sergeant Bentley wanted to stop the auto
before it got onto a major roadway, and the highway was just ahead." Tr.
at 8. At this time the officers had not received a response from the
computer check on the license plate and did not know that the defendant
was operating a rental car. Tr. at 8. After further inquiry, Officer
Carroll testified that he was prompted to pull the defendant over based
on the following observations: the car had an out-of-state license
plate; the actions of the four males, particularly the way they crossed
the street in single file and did not speak with the driver of the car;
the fact that the males ran once they noticed the officers; and the
duffle bags the males placed in the trunk of the car. Tr. at 8, 9-10.
Once the defendant pulled the car over to the side of the road, Officer
Carroll approached the vehicle and asked to see defendant's driver's
license, registration and proof of insurance. Tr. at 11. Officer Carroll
testified that following the stop he did not have any conversation with
the defendant about why he pulled her car over or why he was interested
in looking into the trunk. Tr. at 13, 16. Subsequent to her arrest, the
defendant was questioned by a number of law enforcement officials and
gave both written and videotaped post-arrest statements. Pl. Exs. 7, 8.
b. The Defendant' 8 Videotaped Statement
As I stated previously, the defendant's version of the events
surrounding her arrest differs significantly from that recounted by
Officer Carroll.7 Her candor and the breadth and nature of her
statements give her statement great credibility Specifically, in her
videotaped statement, defendant admits to her role in the transaction
and that of her son and his associates. The defendant also detailed her
involvement in 20 other similar transactions and all this without any
promise of immunity or even special consideration. 8
According to the defendant, she left Detroit, Michigan for New York City
at approximately 6:30 p.m. on April 20th. At that time, she was riding
as a passenger in the Red Chevrolet Caprice and a man named Terry drove
the car to New York City. The purpose of the trip was "to get some drugs
and to come back home."
Prior to leaving Detroit, Robert and Chubb, two associates of
defendant's son, placed five duffle bags containing money into the trunk
of the Caprice and then drove in a van, along with a third man, to New
York. Defendant estimated that the bags contained $1,000,000. Once the
two vehicles arrived in New York City, they proceeded to 176th Street
where the defendant saw four men, "Roberto, his two brothers and a
worker." According to the defendant, it was customary for Robert to call
Roberto when they were about an hour outside of the city "so he
[Roberto] can be ready for us when we get here." At 176th Street Terry
stopped the car and Robert exited the van and opened the trunk of the
Caprice and along with Chubb, took the money inside the apartment
building Robert directed Terry to move the van around the corner, the
defendant waited in the Caprice.
The defendant stated that Robert and Chubb were inside the apartment
building for about ten minutes while she was parked outside. Then "when
they came down they opened the trunk back up and put the two bags in
there and handed me the keys and I proceeded to pull off." After Robert
and Chubb put the bags into the trunk the defendant observed that "they
started walking" away. When the defendant was unable to determine
whether the men walked north, south, east or west, the interrogating
officer asked "Well, was it in the same direction that you drove in the
direction that you drove away they were walking, they walked?" (Emphasis
added.) The defendant responded in the affirmative.
Thereafter defendant proceeded to the corner of 176th Street and St.
Nicholas where she waited for the traffic light to turn green. While
sitting there, she noticed a car behind her; "I could see the car in the
next block, just sitting there, o.k. I seen it I was aware of the car."
The defendant stated that the car pulled up behind her as she waited for
the light to change and the car behind "flashed the red light." The
defendant, unsure that a police car was behind her, stated that the
events unfolded as follows:
"- New York police cars are different and this was an unmarked car,
o.k., and it [the red fire-ball light was like up in the dashboard. Our
cars, they have the lights out on the hood but I knew it was something.
So the light turned green and I proceeded to go straight across and then
as the red light was flashing I seen another light and stopped. And I
just sat there and finally the police officers they got out, they
identified themselves, they asked me for a driver's license and
registration and stuff and I gave it to them. And then they said what's
in the trunk? I said I don't know and they said uh give me the keys. So
I gave them the keys and they opened up the trunk. Then I got arrested.
Defendant admitted that when she told the officers that she did not know
what was in the trunk she was not telling the complete truth. However,
she clearly stated that she knew that there were narcotics in the trunk
but that she thought there was only cocaine in the trunk, when, in
reality, there was both cocaine and heroin and in fact she never saw
what was in the bag. Defendant stated that she expected to be paid
$20,000 by her son and others for this trip and that she had made
approximately 20 similar trips between 1991 and 1995. 9
Defendant moves to suppress the physical evidence seized from the car
she was driving at the time of her arrest10 and her post arrest
statements. The inquiry here is whether the evidence seized and the
statements given were the fruits of a search and seizure made in
violation of the defendant's Fourth Amendment rights. Put another way,
did Officer Carroll and Sergeant Bentley have a reasonable suspicion
that defendant was involved in criminal activity when they stopped her
I have reviewed extensively the briefs submitted by the parties, the
testimony of their witnesses, the arguments put forth by counsel, and
the numerous cases cited by the Government. The essence of the
Government's argument is that Officer Carroll and Sergeant Bentley had a
reasonable basis for stopping the defendant and that their "Terry-type"
investigative stop of defendant did not violate her Fourth Amendment
rights. I disagree. I find that the defendant's conduct when viewed
objectively by trained officers familiar with drug trafficking and in
the context of the events which occurred in the early morning of April
21st, does not give rise to a reasonable suspicion that criminal
activity was afoot.
a. The Validity of an Investigative Stop.
If the initial stop of defendant's vehicle violated defendant's
Constitutional rights, any subsequent search or evidence seized by
virtue of the violative stop will be suppressed under the "fruit of the
poisonous tree" doctrine. Wong Sun v. United States, 371 U.S. 471, 484-
85 (1963) Thus, the focus of my inquiry here is on the stop.
This Circuit has recognized three levels of interaction between
government agents and individuals; consensual encounters, limited
investigative stops, i.e. "Terry-type" stops, and arrests. United States
v. Tehrani 49 F.3d 54, 58 (2d Cir. 1995) (citing United States v.
Hooper, 953 F.2d 484, 490 (2d Cir. 1995) cert. denied, 502 U.S. 1015
(1991)); see also United States v. Glover, 957 F.2d 1004, 1008 (2d Cir.
1992). A consensual stop is not considered a seizure under the Fourth
Amendment and thus may be initiated by a government agent, such as a
police officer, without any level of suspicion. Id. In contrast, a
limited investigative stop or an arrest amounts to a seizure under the
Fourth Amendment and must be premised on a heightened standard.
A limited investigative stop, which is the stop at issue here, must be
based on "a reasonable suspicion supported by articulable facts that
criminal activity 'may be afoot.'" United States v. Sokolow, 490 U.S. 1,
7 (1989) (quoting Terry v. Ohio, 392 U.S. 1 (1968)). Likewise, the
Constitution requires that an arrest be rooted firmly on the existence
of probable cause that the person arrested is or was involved in
criminal activity. Glover, 957 F.2d at 1008.
The Supreme Court recognized a limited exception to the probable cause
standard for an investigative stop under the Fourth Amendment in Terry
v. Ohio, 392 U.S. 1 (1968). In evaluating the reasonableness of an
investigative stop, the law requires a two part inquiry. First, whether
the stop itself was based on a reasonable suspicion that the suspect
"is, has been, or is about to be engaged in criminal activity." Terry,
392 U.S. at 20. Second, provided the first inquiry is satisfied, a
reviewing court must inquire into whether the stop was reasonably
related in scope to the circumstances which justified the stop. Id.
Focusing on the first of these two inquiries, the Court requires
government agents to point to specific and articulable facts which,
along with rational inferences drawn from those facts, reasonably
suggests that criminal activity has occurred or will occur imminently.
Terry, 392 U.S. at 21. Reasonable suspicion is a less demanding standard
than probable cause. As the Court stated in United States v. White: "it
can be established with information that is different in quantity or
content than that required for probable cause, reliable than that
required to show probable cause." United States v. White, 496 U.S. 325,
Thus the law requires that an investigative stop be based on a minimal
level of objective justification. A stop cannot be premised on an
officer's intentions or motivations nor can a stop be based on an
officer's inchoate suspicion or mere hunch. Glover, 957 F.2d at 1009-10
(citations omitted). An officer's action must be justified at its
inception and will not comport with Fourth Amendment requirements unless
the officer can articulate specific and articulable facts which along
with rational inferences drawn from those facts, create a reasonable
suspicion that the person stopped is or was engaged in criminal
activity. See United States v. Alexander, 907 F.2d 269, 272 (2d Cir.
1990) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975))
The Second Circuit views factors and activities such as a person
entering a building which is known as a location where drugs are sold or
a person's evasive and erratic driving patterns when leaving a building
under police surveillance as sufficient to give rise to a reasonable
suspicion that the person is engaged in criminal activity. See United
States v. Vasquez, 638 F.2d 507, 523 (2d Cir. 1980), cert. denied, 454
U.S. 847 (1981); United States v. Ginsberg, 758 F.2d 823, 828 (2d Cir.
1985); see also United States v. Bechdel, 1988 WL 2501 (E.D.N.Y. 1988).
Through a progeny of cases the federal courts have articulated a clear
standard by which the conduct of police officers and government agents
engaging in investigative stops is to be measured. Although the standard
of reasonable suspicion is less than that of probable cause as required
for an arrest, this standard is one which firmly exists as a protector
of our Fourth Amendment right to be free from unreasonable searches and
seizures. Accordingly, as Judge Timbers stated in United States v.
Buenaventura-Ariza, 615 F. 2d 29, 31 (2d Cir. 1980), "[o]f necessity
there must be a line separating investigatory stops supported by
'specific, objective facts' from those stops occurring essentially at
the 'unfettered discretion of officers in the field.'" (quoting Brown v.
Texas, 443 U.S. 47, 51 (1979)).
b. The Investigative Stop is Invalid.
In evaluating whether Officer Carroll and Sergeant Bentley had a
reasonable suspicion that defendant was involved in criminal activity
when they stopped her car, I must focus on the totality of the
circumstances, as viewed from the officer's perspective and experience
in the early morning hours of April 21, 1995. At the hearing, Officer
Carroll testified that he pulled over the defendant's car as directed by
Sergeant Bentley who "wanted to stop the auto before it got onto a major
roadway, and the highway was just ahead." Tr. at 8. Officer Carroll
testified to what in his view constituted the specific and articulable
factors underlying his reasonable suspicion that defendant was engaged
in criminal activity: the neighborhood; the car's out-of-state license
plate; the fact that the car was moving slowly and then double parked;
the actions of the four males, particularly the way they crossed the
street in single file and did not speak with the driver of the car; the
fact that the males scattered once they noticed the officers staring at
them; and the duffle bags the males placed in the trunk of the car. Tr.
at 8-10. I find that even collectively, these facts fail to meet the
requisite standard of reasonable, articulable suspicion that any
criminal activity was afoot and that is assuming Officer Carroll is to
The testimony offered by Officer Carroll about how the events of April
21st unfolded when juxtaposed with the defendant's full fledged
videotaped confession suggest that Officer Carroll's testimony is at
best suspect. I place consider-able weight on the defendant's statements
because of how they incriminate her, her son and others and because at
the time the statements were made, the defendant unlike the Officer, had
no reason to color the facts. Furthermore, the defendant's verslon of
the events, recorded twelve hours or less after her arrest, is likely to
be a more accurate statement of what occurred that morning than an
officer's testimony offered more than eight months after the events took
place. And where, one may wonder was the officer in charge, Sergeant
Bentley? While presumably available to corroborate this officer's
gossamer, he was never called to testify.
Officer Carroll testified that when he first observed defendant, she was
driving a Red 1995 Chevrolet Caprice slowly along 176th Street. Tr at 5.
In contrast, defendant asserts that she did not drive to New York City
from Detroit, rather she was a passenger in the Caprice driven by Terry.
Further, defendant did not get behind the wheel of the car until after
it was stopped on 176th Street and Terry had exited the vehicle. Put
another way, Officer Carroll apparently missed or overlooked the fact
that the car had come to a halt, never saw the man exit the Caprice, and
missed the million dollars being taken out of the trunk. If we credit
the defendant's statement, and I do, one cannot keep from finding
Carroll's story incredible.
The mere presence of an individual in a neighborhood known for its drug
activity, which here was characterized as from 155th Street to the end
of Manhattan, fails to raise a reasonable suspicion that the person
observed is there to purchase drugs. United States v. Moore, 817 F.2d
1105, 1107 (4th Cir. 1987) (quoting United States Constantine, 567 F.2d
266, 267 (4th Cir 1977) (presence of suspect in high crime neighborhood
is not enough to raise a reasonable suspicion, but may constitute an
articulable factor)). Similarly, the hour at which a person is in a
known high crime neighborhood should not give rise to a reasonable
suspicion that they are involved in criminal activity but may constitute
an articulable fact to consider. See United States v. Lender, 985 F.2d
151, 154 (4th Cir. 1993) (fact that defendant was observed in known drug
area at 1:00 a.m. is only a fact raising the level of suspicion). Here,
the defendant was observed in an area allegedly known for its drug
trading.12 Yet, I find nothing unusual about the time at which she was
observed. In New York City, people travel to and from work at all hours
of the day and night. This would be an even more reasonable time to be
abroad where as here a Michigan resident on a visit to New York was
returning to her home state and wanted to get there before nightfall.
Further, unlike Officer Carroll, I do not find it odd that a person is
seen to drive a car with a Michigan license plate in Manhattan. In his
testimony, Officer Carroll put great stock in the fact that defendant
was driving a car with an out-of-state license plate at the time of her
arrest and that she double parked on a city street. In a city which
considers itself "The Capital of the World" and which is regularly
crowded with out of state and foreign visitors who come by plane, train,
boat and certainly car, it is not odd to see a license plate from
another state.11 Similarly, while it might be unfortunate, it is
certainly not odd for one to observe double parked cars on a Manhattan
street. It is often the case that cars are double parked, even tripled
parked on Manhattan's busy avenues and side streets. What I find
shattering is that in this day and age blacks in black neighborhoods and
blacks in white neighborhoods can count on little security for their
person As Thomas Paine wrote just 220 years ago next month:
Here, then is the origin and rise of government; namely, a mode rendered
necessary by the inability of moral virtue to govern the world; here too
is the design and end of government, viz., Freedom and security. 14
The Eastern District of New York and the Eastern District of Virginia
have recently found a failure of proof in cases similar to this one.
See United States v. Restrepo, 890 F. Supp. 180, 194 (E.D.N.Y. 1995)
(stop violated Fourth Amendment because it lacked proper basis;
defendant was not speeding or violating any traffic ordinances, rather,
defendant was stopped and questioned solely because he was driving a car
with out-of-state plates and appeared to be Hispanic); see also United
States v. Betemit, 899 F. Supp 255, 262 (E.D. va. 1995) (Court
determined real reason for the stop was the expensive car with tinted
windows, the out-of-state plates and that it was occupied by three
young, black males).
Several cases cited by the government advance the proposition that
double parked cars with out of state license plates may be factors in
assessing whether reasonable suspicion exists Let's look at those
cases; in United States v. Terry, 718 F. Supp. 1181, 1183 (S.D.N.Y.
1989), the defendant was driving a car with Connecticut license plates
and double parked at a known drug location under police surveillance; in
United States v. Alexander, 907 F.2d 269, 271 (2d Cir. 1990), DEA agents
conducting a surveillance observed a green Jaguar double parked; in
United States v. Harley, 682 F.2d 398, 399-400 (2d Cir. 1982), the
defendant arrived in a car bearing Georgia license plates, and double
parked outside of a known drug location under surveillance. Each of
these cases is as a consequence of the surveillance easily
distinguishable from the case at bar.
In fact, in Terry the surveillance officers "were instructed to stop
cars that double parked in front of the building [under surveillance] if
the occupants entered and remained inside for approximately 10 minutes,
then departed the area." Terry, 718 F. Supp. at 1183. Similarly, in
Harley surveillance officers decided to question people seen leaving the
building under surveillance in an attempt to gain additional information
about the drug trafficking activities inside or a means of entry into
t~he suspected building shortly before arresting the defendant. Harley,
682 F.2d at 400. There was no testimony that Officer Carroll, his
partner or any officers from the 32nd, 33rd or 34th precinct were
involved in surveillance activities in the area on April 21, 1995.
The Government supplied several cases which they opined were the most
persuasive.15 In the majority of these cases the key element for the
stop was the defendant's furtive conduct and evasive behavior or the
officer's knowledge of the defendant's propensity for involvement in
criminal activity.16 There is not a scintilla of evidence to that effect
here. Not only is there no evidence of furtive or evasive conduct by the
defendant here, Officer Carroll testified that the defendant proceeded
through the intersection of 176th Street and St. Nicholas Avenue and
continued along 176th Street at a normal rate of speed and that
defendant did not drive erratically. Tr. at 6-7. The defendant stated
that she was aware of the officers behind her, yet she did not run the
red light at St. Nicholas Avenue, nor did she take off at an excessive
rate of speed once the light changed to green.
When pressed on the issue of evasive or furtive conduct, Officer Carroll
admitted that while the defendant did not herself act furtively or
evasively, the conduct of the males was evasive. Officer Carroll and the
Government argue that the males acted in concert with the defendant and
therefore the fact that at least one of the males was observed running
from the scene demonstrates evasiveness. Tr. at 7-10. Conversely, the
defendant stated that the males "put the two bags in [the trunk] . . .
handed [her] the keys and [she]... proceeded to pull off" while the
males "started walking" away from the car. The defendant further stated
that the males walked in the direction that she drove the car, thus if
one or all of the males had run from the corner of 176th Street and St.
Nicholas Avenue, surely the defendant would have seen them.
Moreover, even assuming that one or more of the males ran from the
corner once they were aware of the officers' presence, it is hard to
characterize this as evasive conduct.17 Police officers even those
travelling in unmarked vehicles, are easily recognized, particularly, in
this area of Manhattan. In fact, the same United States Attorney's
Office which brought this prosecution enjoyed more success in their
prosecution of a corrupt police officer of an anti-crime unit operating
in this very neighborhood.18 Even before this prosecution and the public
hearing and final report of the Mollen Commission, residents in this
neighborhood tended to regard police officers as corrupt, abusive and
violent. After the attendant publicity surrounding the above events,
had the men not run when the cops began to stare at them, it would have
Finally, I turn to the issue of the duffle bags. Duffle bags are
commonly and regularly used to transport things from clothing to
equipment. It is far from suspicious to see people placing duffle bags
into the trunk of an out of state car in the early morning. To me this
behavior is innocuous and again consistent with a person leaving early
in the morning on a long drive to return home to Michigan after visiting
relatives in New York City.
Officer Carroll stated that the way the men were walking, their single
line formation, and the fact that the men did not speak or interact with
the driver of the car is suspicious in and of itself. If we contrast
this testimony with that of the defendant, we find that the defendant
clearly stated that she was waiting in the car when the men placed the
bags into the trunk and that the men handed the car keys to her after
they placed the bags into the trunk.
There are at least two significant discrepancies at this point in the
account of the events leading up to the investigative stop of defendant
and I credit the defendant's version in each case. First. did one or
more of the males run from the corner of 176th Street and St Nicholas
Avenue as Officer Carroll testified or did they walk away from the car
and continue walking along 176th Street as defendant stated? Second, did
the males place the bags into the trunk and then cross to the south side
of the street without any conversation or interchange with defendant as
Officer Carroll recollects or as the defendant stated, did the males
place the bags into the trunk of the car and then give the defendant the
keys so that she could drive the car away?
In short, I find that the defendant's conduct in the early morning on
April 21st, does not give rise to a reasonable suspicion that criminal
activity was afoot. Taken individually collectively the specific facts
articulated by Officer Carroll do not amount to much and are in several
pivotal respects incredible when placed side by side with the
contemporaneous recollection of the defendant. In short, they fail to
constitute a reasonable suspicion that the defendant was engaged in
While an investigative stop need not be based on probable cause, it must
be predicated on a reasonable suspicion based on specific facts and
reasonable inferences which can be drawn from those facts. See
generally Glover, 957 F.2d at 1008. The Government urges me to
reiterate my brief opinion in United States v. Germosen, 1995 WL 733572
(S.D.N.Y. Dec. 12, 1995), it is inapposite. There, the defendant was
stopped as he exited a phone cloning operation in a building that had
been under surveillance for some time and where the investigating
officers had sufficient information for an intended raid at the location
under surveillance and another similar enterprise. See United States v.
Germosen, Tr. at 9-11.
Here there was no activity which, when viewed along with the other
events of April 21st, rises to the level of reasonable suspicion
sufficient for an investigative stop. Because I find that the initial
stop of defendant's car was not justified, it follows that the
subsequent search of her car, the seizure of the drugs from the trunk
and defendant's post arrest statements being the fruits of a tainted
search must and will be suppressed.
For the reasons stated above, the defendant's motion to suppress the 34
kilograms of cocaine and 2 kilograms of heroin seized from the car she
was driving at the time of her arrest and her post arrest statements is
New York, New York
January 22, 1996
Hon. Harold Baer, Jr.
1. Jennifer Chapin, an L.L.M. candidate at the New York University
School of Law, contributed to the research for this decision and order.
2. Although three police officers testified, only the testimony of
Officer Carroll is pertinent. The testimony of the other two officers,
Officer Richard Clarke and Detective Gene Torriente, a DEA Task Force
Officer, involved events that followed the incident at issue here.
3. President John F. Kennedy, Commencement Speech, Yale University 1962.
4. The arresting officers transported defendant to the 33rd precinct
where she was processed and interrogated by members of the New York Drug
Enforcement Task Force. Tr. at 14. The defendant's statement was
videotaped at the 33rd precinct.
5. Officer Carroll testified that "[t]he vehicle was ahead of us. I
observed it driving slowly, much as we were. It pulled over to the north
side of 176th Street, close but not at the intersection of St. Nicholas,
double parked." Tr. at 5.
6. The officers made no effort to stop any of the males at that time nor
did they radio for help to locate and arrest the males. Tr. at 55-56.
The only action taken to locate the males occurred hours later when
Officer Carroll joined the defendant and other officers on a "drive-
around" in an attempt to locate the males. Tr. at 24.
7. Any quotations and references herein to defendant's statement refer
to a copy of the videotaped statement provided to me by the Government
and marked as Pl. Ex. 8. Although the government did not prepare a
transcript of the videotape, one was prepared for the limited purposes
of this decision within my chambers.
8. At the end of her videotaped statement, defendant stated that no
police officers threatened her in exchange for her testimony, nor did
any officer promise her anything in exchange for her testimony.
Defendant did not testify at the suppression hearing. It is unclear
whether defense counsel intended to call the defendant to the stand.
Midway through the proceedings on January 4, 1996 defense counsel
notified the Court that his client was ill with a stomach ailment and
needed to be removed from the Courtroom. Defendant waived her right to
be present for the remainder of the proceedings. Tr. at 111, 128-29.
9. Defendant stated that her son and others compensated her for a number
of her trips to New York City. On each of those occasions, she came
solely to pick up drugs and return to Detroit. Defendant further
acknowledged that she received gifts from her son and others in
compensation and that she knew that the money received and the gifts
purchased were from the proceeds of drug transactions.
10. At the time of her arrest, officers found 34 kilograms of cocaine
and 2 kilograms of heroin in the trunk of defendant's car. There is some
question as to whether the trunk was opened, and the drugs seized, prior
or subsequent to defendant's arrest The Government maintains, however,
that inevitably the drugs would have been discovered as the result of a
lawful inventory procedure required by the New York City Police
11. If the initial stop of the vehicle was not justified, it follows
that the subsequent search of the vehicle was not lawful and but for the
illegal stop, the evidence would not have been discovered. United States
v. Betemit, 899 F. Supp. 255, 263 (E.D. Va. 1995) (citations omitted).
12. Interestingly, the Government offered no proof to corroborate their
statement that the area surrounding 176th Street and St. Nicholas Avenue
is a known hub for the drug trade See Tr. at 5.
13. I would add that although Officer Carroll found the out of state
plate particularly relevant, I do not. In a number of the cases I read,
I noted that often cars will come to New York City from New Jersey and
Connecticut to purchase drugs. While I do not find this practice odd
based on their proximity to New York City, I would be less inclined to
suspect a car from Michigan to be here for the purpose of purchasing
drugs. It is a long drive from Michigan to New York just to carry out a
drug transaction and particularly when Detroit, Michigan is considered a
"source city" for drug trafficking just as New York.
14. Common Sense, February 14, 1776.
15. The Government cited the following cases: United States v.
Alexander, 907 F.2d 269 (2d Cir. 1990), cert. denied 498 U.S. 1095
(1991); United States v. Terry, 718 F. Supp. 1181 (S.D.N.Y. 1989), aff'd
without opinion, 927 F.2d 593 (2d Cir. 1991); United States v. Harley,
682 F.2d 398 (1982); United States v. Lender, 985 F.2d 151 (1993);
United States v. Moore, 817 F.2d 1105 (4th Cir.), cert. denied, 484 U.S.
965 (1987); United States v. Briggman, 931 F.2d 705 (11th Cir. 1991),
cert. denied, 502 U.S. 938 (1991); United States v. Kimball, 25 F.3d 1
(1st Cir. 1994); and United States v. Franco-Munoz, 952 F.2d 1055 (9th
Cir. 1991), cert. denied,___U.S.___, 113 S. Ct. 3015 (1993).
16. See Alexander, 907 F.2d at 271 (defendant walked from car looking
around "furtively" and "checking-out" area; when leaving driver signaled
for turns not made, drove at excessive speeds and ran at least two
lights); Terry, 718 F. Supp. at 1183 (defendant made several erratic
turns on 153rd Street before entering the Major Deegan Expressway where
she drove fast and was observed changing lanes); Harley, 682 F.2d at 400
(defendant ran a red light once he was aware of the officers following
him and drove on the Harlem River Drive at speeds in excess of 90 miles
per hour); Lender, 985 F.2d at 154 (defendant continued to walk away
from officer even when commanded to stop); Moore, 817 F.2d at 1107
(defendant observed moving away from scene of crime and building with
silent alarm ringing); Briggman, 931 F.2d at 709 (while trying to leave
parking lot, defendant drove evasively to avoid officer); Kimball, 25
F.3d at 7 (officer's knowledge of defendant's involvement in prior
burglaries along with defendant's presence in school parking lot at
midnight when rash of school burglaries had occurred was sufficient to
create a reasonable suspicion); and Franco-Munoz, 952 F.2d at 1057
(driver of car reduced speed when overtaken by police car).
17. Furthermore, if the officers found the conduct of the males to be
evasive I question why the officers did not attempt to stop the males
themselves or, at the very least, call for back-up assistance in
locating the males.
18. The United States Attorney for the Southern District of New York
spent four years investigating and prosecuting claims that officers
assigned to the Washington Heights' anti-crime unit Local Motion for
corruption and unjustified arrests. Greg B. Smith, "Bitter Tears at Cop
Conviction", Daily News, Aug. 18, 1995. During the investigation
Assistant United States Attorneys assigned to the case interviewed
numerous individuals who aided in uncovering evidence that members of
the anti-crime unit committed perjury or made false statements in
connection with various arrests and the prosecution of both federal and
state crimes. See Greg B. Smith, "NYPD to Get Feds' Info on 34th PCT.",
Daily News, June 2, 1995. Meanwhile, the 34th precinct leads the city in
corruption complaints filed against its officers. See John Marzulli,
"Crooked-Cop Complaints Climb 28%", Daily News, June 16, 1995.
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.