KATHARINE S. HAYDEN, District Judge.
The focus of this case is of constitutional dimension: the right of a citizen to be free from unreasonable search and seizure. The Court's decision on defendant John Howard's motion to suppress evidence turns not on complex legal issues but on the matter of credibility, the determination of which is the Court's responsibility. As the factfinder, the Court must be satisfied that it has come as close as possible to knowing what happened during the events in question — a stop and frisk at night on a street in Newark — as distinguished from accepting a story that fits a constitutional paradigm but fails to pass the test of common sense and logic.
The record before the Court establishes that John Howard, who is the subject of a pending indictment charging him as a felon in possession of a gun, was walking out of a known crack house in April, 2008, when two Newark police officers driving by in marked vehicles spotted him. The officers were on "proactive patrol," investigating criminal activity in high crime areas of the city. According to the police report filed after John Howard's arrest and testimony given before this Court, the arresting officers, Emanuel Pereira and Juan Ramos, decided to approach Howard because he appeared "startled" when he saw them and "quickly shoved" a black object he was holding in his right hand into the front part of his waistband. (Def. Ex. G). The report, which Pereira filed, describes further:
Howard has moved to suppress the gun, a 9 millimeter semi-automatic handgun with a defaced serial number loaded with 9 millimeter Luger live rounds, which the government intends to use as evidence in prosecuting him for illegal possession of a weapon by a convicted felon pursuant to 18 U.S.C. § 922(g)(1). The Court held a hearing at which Pereira and Ramos testified for the government, and Howard and an investigator for the Office of the Public Defender testified for the defense. As will be seen, Howard advances evidence that directly contradicts the police version of events.
"The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (citing Simmons v. United States, 390 U.S. 377, 389-390, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). In the case of a warrantless search, the government bears the burden to show that the search or seizure was reasonable. United States v. Johnson, 63 F.3d 242, 245 (3d Cir.1995) (citing United States v. McKneely, 6 F.3d 1447, 1453 (10th Cir.1993)). In deciding a motion to suppress evidence, the trial court determines the credibility of witnesses.
At the hearing on Howard's suppression motion, the two officers gave testimony along the lines of the police report. When Howard testified, he claimed that what he was holding and using when the officers saw him was a black cellphone. The Federal Public Defender representing Howard moved Howard's cellphone and phone company records into evidence (over the government's objection, see infra.), which showed that the cellphone was in use during the relevant time. Howard denied that he shoved anything in the front waistband of his pants. He claimed that the police retrieved the weapon from the back of the waistband of his pants. He also denied that he was nervous during the face-to-face with the police because encounters with law enforcement in that neighborhood were frequent.
There is no mention of a cellphone in the police report or in Pereira's direct testimony. Pereira initially testified that he did not recall whether Howard had a cellphone, and maintained on cross-examination that "it was not important" whether Howard did or did not have the phone. (Tr. Suppression Hr'g, July 30, 2009 ("Tr.1") at 59:20.) Only after being shown a personal property sheet, which Pereira had prepared and which stated that Howard had a phone with him when he was arrested, did Pereira recall that he had seized a cellphone from Howard when arresting him. (Tr.1 61:8-62:15.)
No one disputes that Howard had a gun on his person that was seized pursuant to a stop and frisk; the issue here is whether the seizure was constitutional. Since there is no place for a cellphone in the police version of the stop and frisk, the testimony of the government's witnesses and Howard cannot be reconciled. If the police are believed, then Pereira pulled a gun from the front waistband of Howard's pants, and that gun was the same object that Pereira testified he saw Howard "quickly shove" into the waistband moments before. (Tr.1 68:22-23.) So, under Pereira's version of events, what Howard had in his hand when the police first spotted him had to be a gun and not a cellphone. If Howard is believed, then what he had in his hand was a cellphone, not a gun, and he did not shove it or anything else in the front of his pants. To believe one side is to disbelieve the other. The Court must decide credibility — as Murphy put it, the Court must decide which version withstands "a common sense test of reason and logic." 402 F.Supp.2d at 569-70.
According to Pereira, he and Ramos were riding in a marked car behind another police vehicle, single file, convoy-style, in a high-crime area of Newark around 9 pm on April 29, 2008. (Tr.1 14:21-25.) Pereira sat in the passenger seat to "observe activity around us in the streets we
Pereira recognized Howard, whom he knew from "all my years patrolling in the area." (Tr.1 25:5-8) Pereira believed the black object in Howard's right hand was "a weapon" or a "possible weapon," and told that to Ramos. (Tr.1 24:13-24.) Then:
Venancio and Nieves, the officers in the lead car, went inside 18 Stratford Place per the plan to investigate activity there. Meanwhile, according to Pereira:
Pereira stated that, because he felt Howard "was thinking of fleeing on foot," and because Howard was walking toward him "cupping in front of his waistband where I did observe him place a black object" (Tr.1 32:12-15), he grabbed Howard's arm and "went to a pat down and I did feel that there was a hard object and a handle of a weapon in the front." (Tr.1 33:1-5.) Pereira pulled it out; Ramos had come out of the car and was at that point behind Howard. Pereira held the weapon to his side while he held onto Howard and Ramos placed Howard in handcuffs. (Tr.1 34-11-22.) Pereira testified that the weapon was in the same location "where I observed him place that black object." (Tr.1 37:8-9.)
When asked about the "black object," Pereira testified that he could not see its contours or shape (Tr.1 57:11-58-3), and acknowledged that the object could have been a bottle of soda, a wallet, a comb, a hair brush, or an Afro pick. (Tr.1 58:9-59:6.) The questioning continued:
Confronted with the property sheet, which lists a cellphone and battery and was introduced as defense exhibit h, Pereira conceded that he had "seized" a phone from Howard. (Tr.1 62:10-15.)
Pereira further testified that he did not ask Howard any questions before patting him down. This was contrary to the police report, which indicated "we investigated whether the subject lived in the building or area," and, based on Howard's "nervous" conduct, "for the officer's safety the officer conducted a pat down on suspect." (Def. Ex. G.)
At the conclusion of spirited cross-examination, Pereira's testimony stood as follows: he saw a man exit 18 Stratford, a place known for drugs and other criminal activities, including shootings; he recognized the man from prior investigations; the man quickly shoved something into his front waistband, appearing startled; Pereira suspected the object was a gun ("It was in my thoughts, yes."); Pereira did not alert fellow officers going into 18 Stratford Place about his suspicion that Howard was armed, or un-holster his gun, or even have his hand on his gun before ordering Howard to stop.
On redirect, Pereira testified that he was 30 feet away from Howard when he first saw him (Tr.1 85:3-4). Further, he stated that it was not relevant to an investigation for purposes of charging gun possession whether or not that the arrested individual had a cellphone. (Tr.1 88:21-89:12). Thus his testimony in response to the prosecutor's questions on redirect:
Pereira clarified on re-cross that he approached Howard "to further investigate... whether or not he lived in the area or in the building or not ... [and] what was the black object that he put in his waistband." (Tr.1 95:20-25.) He said he "had a hunch that the black object was a handgun" (Tr.1 97:4-6), but he did not include that detail in the police report. (Tr.1 99:16-19.)
Ramos testified that he was driving the trail vehicle that night because "[w]e go to several locations of high crime areas [and] address quality of life issues." (Tr.1 104:21-22.) He was familiar with the area where Howard was arrested and had himself made narcotics and firearms arrests on Stratford Place. (Tr.1 106:3-8.) The plan that night was to go into 18 Stratford and conduct a building check (Tr.1 107:13-15), which is where the policemen in the lead vehicle went while Ramos and Pereira were occupied with Howard. (Tr.1 109:22-110:6.) Ramos testified that as he was slowly driving behind the lead police vehicle, Pereira pointed out an individual walking down the street and told him to stop because the individual "just put something in his waistband." (Tr.1 108:2-3.) According to Ramos, it was Pereira who made the decision for the officers to stop Howard because at that point, "I wasn't intending to stop anyone outside of the building. We were entering the building to conduct a building check." (Tr.1 137:18-20.) The individual, whom he identified as Howard, "appeared to have his hands near his waistband." (Tr.1 109:13.) He testified that Howard complied with Pereira's order to come back towards him, but appeared hesitant. (Tr.1 111:24-25.) Ramos got out of the car and stood behind Howard, covering Pereira. (Tr.1 112:11-12.)
Between the time Ramos spotted Howard and the time when Pereira took the gun from him, about one minute elapsed. (Tr.1 122:22-123:6.) Ramos did not recall anyone asking questions of Howard. (Tr.1 131:18-19.)
The defense contention throughout was that Howard had a cellphone in his hand when the police saw him walking out of the building, not a weapon. In support, the defense witnesses testified about Howard's cellphone use at the time of the encounter and the defense introduced into evidence his cellphone (black with a white stripe), as well as records subpoenaed from the wireless service provider, Sprint Nextel. This did not happen without strong objections by the government, which the Court overruled.
Prior to the testimony of the two defense witnesses, who were an investigator from the Federal Public Defender's Office, Carol Gillen, and Howard himself, the government challenged the relevance of whether Howard was holding a cellphone when first the police noticed him. On that basis, the government sought to exclude Gillen's testimony. The government further requested time to investigate Gillen's one-page report on activity on a cellphone proffered as belonging to Howard. The defense had turned over the report the evening before, along with the subpoenaed Sprint Nextel records showing cellphone activity from the day in question. In response, the defense argued that half of Gillen's report reflected what she saw as she scrolled down on the cellphone, and the other half reflected how Gillen had obtained the cellphone records, and as such, the report was standard Jencks material timely turned over in advance of her anticipated testimony. The defense further argued that the purpose of Jencks material is not to give a party the chance to investigate the Jencks material, but rather to provide the party with the opportunity to use the material to cross-examine the witness. For the defense, the real issue was the officers' credibility. The defense intended to use Howard's cellphone and the phone activity to establish that around the time that the police testified that they had encountered him, Howard was speaking on his cellphone.
The Court agreed with the defense that the issue before it was credibility, and determined, after hearing argument from both sides, that the defense had not been required to come forward with the cellphone records until after the police testified, and it denied the government's request for additional time or legal argument. Additionally, the Court determined that Gillen's testimony "was going to be saying something specifically on the issues that are in dispute on credibility grounds between Mr. Howard and the government witnesses." (Tr. Suppression Hr'g, Sept. 3, 2009 ("Tr.2") 14:5-8.) The Court permitted the defense to call Carol Gillen because "[t]he minute, exquisite,
After Gillen testified and when Howard was being cross-examined, the government again raised its objection to the defense strategy of turning over the cellphone evidence the evening before, arguing that the prosecution was "curtailed in our ability to ask about the subpoenaed records that the defense has offered as the basis to establish the credibility of this, this late night evidence that we received today." (Tr.2 140:13-16.) The Court specifically responded to this concern: "If, when you've examined the subpoenaed records that you got so late in the game, you find that there are reasons to reopen this hearing and blow Mr. Howard out of the water, I'm not going to stop you from doing that." (Tr.2 141:12-16.) The government never made a request to reopen.
The government returned to the issue of the turnover of cellphone evidence in its post-hearing brief. "Due to defense counsel's strategic decision to surprise the Government by concealing the cell phone evidence until the evening before the second day of the suppression hearing, there unfortunately was no opportunity to examine the police officers regarding this issue. For example, the officers were not closely queried regarding what precise time the stop took place because that fact was not known to be at issue." (Gov't's Post-Hr'g Br., D.E. 26 at 7.) This observation is, of course, disingenuous because the government never sought to reopen to either question the officers or to attack the reliability or relevance of the subpoenaed phone records and activity on the cellphone. Moreover, the "surprise" the government complains about here is itself surprising because Pereira was asked 11 times by the defense, and 10 times by the government, about whether Howard had a cellphone that night. The defense specifically asked Pereira more than once if the object in Howard's hand could have been a cellphone. (Tr.1 59:5-6; 63:17-18.) In this context it must be emphasized that in meeting its burden of proving the seizure of the gun was reasonable and constitutional, the government committed to its witness's testimony that the black object that Pereira said he saw Howard "quickly shove" into his the front of his waistband was not a cellphone but rather the gun that Pereira pulled out.
Finally, with regard to the government's objections that the cellphone evidence was not relevant, the Court disagrees. The cellphone evidence established that on the day of Howard's arrest, there was phone activity between 9:00 pm and 9:14 pm and thereafter no record of phone activity on the day of his arrest or the following day. This time frame brackets the encounter between Howard and the police: The government states in its pre-hearing brief (Gov't's Opp. to Def's Pre-trial Mots., D.E. 13 at 4) that police officers encountered Howard at approximately 9:10 pm; the police report (Def. Ex. G) fills in the "time of occurrence" box as 21:10 pm, and; Pereira testified that he stopped Howard "anywhere between 9:05, 9:10." (Tr.1 76:5-7.) The absence of further phone
More specifically reviewing the testimony offered on behalf of Howard:
Gillen testified that the phone records and her examination of the phone established that five calls were made on Howard's cellphone between 9:01 and 9:14 pm. The government conducted a vigorous cross-examination of Gillen about how she got the cellphone from Howard's great-grandmother and what she did afterwards. The Court gleaned the following:
When Howard testified, he identified the cellphone that Gillen testified about as the same type of phone he had on the night of the arrest, and stated that he was making and receiving calls on his cellphone when he was leaving 18 Stratford Place. He said that when he was brought to police headquarters, he had been asked what to do with his personal property, and that the Essex County Sheriff's Department had returned the property, including the cellphone, to his grandmother. (Tr.2 105:12-18.) He identified the cellphone in the courtroom as his after recognizing names in the directory. He said the phone was a chirp phone (usable along the lines of a walkie-talkie).
About his encounter with the police that night, Howard said that as he was leaving the building with the cellphone in his right hand, he heard someone call out, "You with the black jacket on, stop!" and he stopped. (Tr.2 94:1-6.) He identified the speaker as Pereira, who approached him with his partner and started asking questions. (Tr.2 94:21-25.) Howard testified that he stopped and answered the questions, standing with his hands by his side, his palms up, and his cellphone visible in his right hand. (Tr.2 95:6-96:14.) "So every time I get stopped by officers I make sure I show them my hands and where they should see them." (Tr.2 97:3-4.) He denied that he tucked the phone in his waist area, or that he had his hand in his waist area. (Tr.2 97:5-9.)
During close questioning by the government, Howard stated that: he called his girlfriend (who had earlier called him) upon leaving 18 Stratford Place, and; he noticed the two police vehicles rolling slowly by, and he changed his destination, turning right, and "chirping" her with his cellphone. (Tr.2 129:14-135:12.) He testified that he changed direction so that he would not get questioned by the police. (Tr.2 133:11-15.) He also received a call from Hood, the friend whom he had been visiting. (Tr.2 131:3-14 and 137:2-5.) Howard was talking to Hood at the moment when he turned around, stopped and was approached by the officers. (Tr.2 147:1-12.)
The Court finds that at the time the police encountered him, Howard was using the cellphone that was introduced into evidence. His identification of the phone, the Sprint Nextel records, and the property sheet signed by Pereira all provide ample and objective proof of cellphone use and cellphone presence. The countervailing evidence — Pereira's sworn testimony, which initially omits the cellphone and then deems it unimportant — is unconvincing and, once rejected, casts doubt upon his testimony as a whole. Especially at odds with the cellphone use that is established by the evidence is Pereira's testimony that Howard "quickly shoved" the black object he was holding down the front of his waistband. That gesture is highly unlikely if Howard was holding a cellphone. And if, for some bizarre reason, Howard did shove a cellphone in the front of his waistband, then both Pereira's and Ramos' testimony that he was making furtive cupping motions at his waist while walking towards them makes no sense. Furthermore, Pereira's testimony is that the black object he
The Court finds Howard's testimony was believable based on his demeanor and because his version of events is coherent and makes sense, and it is powerfully corroborated by the cellphone evidence. Because of this, there is simply no way to account for the version of events given by Pereira and Ramos — what they said they saw Howard do, why they stopped him, and under what circumstances they seized the gun he possessed — other than to conclude their version is not truthful. As such, the Court finds that Howard did not shove a black object in his right hand into the front of his waistband. The Court finds instead that he had a cellphone in his hand; that the police stopped him; that he did not make furtive gestures at his waist because he had no reason to; and after Howard complied with the directions to stop, the police briefly questioned him (but could not have learned anything to raise their suspicions because they denied questioning him at all when they testified); and that they patted Howard down in the manner he described, pulling a gun out of the back of his waistband.
Based on these findings, the Terry stop was unconstitutional. The facts the Court has found do not establish grounds for the police to reasonably suspect that Howard was engaged in criminal activity or that he posed a danger to the officers' safety.
In granting Howard's motion to suppress on grounds the Terry stop was illegal, the Court rejects the government's position in its post-hearing brief that Howard should be denied the remedy of the exclusionary rule. For this proposition, the government relies on language in Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 702, 172 L.Ed.2d 496 (2009) that the exclusionary rule serves to deter conduct that is "deliberate, reckless, or grossly negligent." But where Herring really speaks to this case is in the broader pronouncement in the sentence just before that: "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." The record and the court's observations of the witnesses' demeanor leave this Court with no doubt that the testimony of the officers was deliberate, that its content was not credible, and that the officers' culpability is at the bullseye of what the exclusionary rule seeks to deter.
However bad the neighborhood or notorious the actor, when required, police officers must come into court and tell the truth about how they performed a Terry stop. That did not happen here and the price of exclusion is appropriate. Doing otherwise would incur the much higher price of undermining the rule of law.
Howard's motion is granted. An appropriate order will be entered.
