MATSUMOTO, District Judge.
Defendant Ray Vasquez ("defendant") is charged with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 3551 et seq. (ECF No. 6, Indictment ¶ 1.) Specifically, the defendant is charged with knowingly and intentionally possessing a .22 caliber Erma pistol (the "handgun") and ammunition on or about November 24, 2010 after, on a separate and earlier occasion, he had been convicted of a felony. (See id.) Presently before the court is a motion by defendant
According to the Complaint and Affidavit in Support of Arrest Warrant, on November 24, 2010, at approximately 4:00 PM, New York City Police Department ("NYPD") Officer Lawrence Perrotta and his partner, later identified as Officer Sean Finnegan, were on a routine Street Narcotics Enforcement Unit ("SNEU") operation in the vicinity of a building located at 578 Williams Avenue in Brooklyn, New York.
On July 13, 2011, defendant moved to suppress the handgun as the fruit of an illegal search and seizure in violation of the Fourth Amendment of the United States Constitution. (See ECF No. 16, Notice of Motion to Suppress ("Mot. to Suppress").) In support of his motion, defendant submitted a declaration under penalty of perjury stating that, on the afternoon of November 24, 2010, police officers arrested him and his "friend Jose," later identified as Jose "Jay" Soler, inside an apartment on the first floor of 578 Williams Avenue. (ECF No. 16, Declaration ¶ 1 (emphasis added).) Defendant further stated he had been living in the apartment a few months and that "[w]hen the police came," he and Mr. Soler "were hanging out and talking." (Id. ¶ 2.) In describing how the police entered the apartment, defendant stated that the police "pushed into the apartment, searched the apartment and arrested us," and that the police "came out with a gun which they said they found in one of the rooms." (Id.) Defendant asserted in his declaration that the police did not say they had a warrant, did not show defendant or Mr. Soler a warrant, and did not ask for permission to enter the apartment or search it. (Id.) Finally, defendant affirmed in his declaration that before he was arrested, he was not outside the apartment, was not holding a gun in his hand, and did not drop a gun to the ground. (Id. ¶ 4.) On August 2, 2011, the government filed an opposition to defendant's motion. (See ECF No. 17, Memorandum in Opposition to Motion to Suppress Physical Evidence).
The court held a suppression hearing on September 23, 2011, at which the government presented a single witness, Officer Perrotta, whose testimony was consistent with that of the Complaint and Affidavit in Support of Arrest Warrant described above. Because the court found Officer Perrotta's testimony regarding the circumstances of defendant's arrest and seizure
On November 9, 2011, on the basis of the government's disclosure of notes of a recent interview of Mr. Soler and of paperwork from Mr. Soler's arrest by other members of Officer Perrotta's SNEU team on November 24, 2010 at 578 Williams Avenue, defendant moved to reopen the suppression hearing without opposition from the government. (ECF No. 38, Motion to Suppress (Reopen Suppression Hearing).) The court granted the motion and held a supplementary suppression hearing on November 21-22, 2011 at which the defendant called six witnesses. Two of these witnesses, NYPD Lieutenant Raymond Cotton and Officer Jenica Nathaniel, were members of the SNEU team from the 75th Precinct in East New York, Brooklyn and were on patrol in the same vicinity as Officers Perrotta and Finnegan on November 24, 2010. Three other defense witnesses, Maria Torres, Enid "Jahaira" Acevedo, and Mr. Soler, were civilian witnesses who resided at 578 Williams Avenue at the time of defendant's arrest. The defendant's final witness was Phillip Martin, an investigator with the Federal Defenders of the Eastern District of New York. In rebuttal, the government called Officer Perrotta's partner, Officer Finnegan, and Special Agent Ismail Hernandez from the Bureau of Alcohol, Tobacco, and Firearms ("ATF"). After the November 23, 2011 suppression hearing, the defendant submitted a post-hearing brief in support of his renewed motion to suppress (see ECF No. 51, Memorandum in Support of Motion to Suppress Physical Evidence ("Def. Mem.")), the government submitted an opposition (see ECF No. 52, Memorandum in Opposition to Motion to Suppress Physical Evidence ("Gov't Opp'n")), and the defendant submitted a reply brief (see ECF No. 54, Reply to Response to Motion to Suppress Physical Evidence ("Def. Reply")).
Having considered the appropriate burdens of production and proof, the testimony of witnesses for the government and defendant, the suppression hearing exhibits, the parties' written submissions, and having resolved issues of credibility, the court again denies defendant's motion to suppress. The court sets forth below the findings of fact and conclusions of law upon which this determination is based. See Fed.R.Crim.P. 12(d) ("When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record.").
During the three days of suppression hearings, the court was presented with two vastly different and irreconcilable accounts of defendant's arrest and the seizure of the handgun — that of the NYPD witnesses and that of the civilian witnesses living in defendant's building at 578 Williams Avenue. Officers Perrotta and Finnegan testified that they arrested the defendant after observing him standing in an entranceway of 578 Williams Avenue with a firearm in his right hand that was visible in plain view from the street. In contrast, two of the civilian witnesses, Maria Torres and Jose Soler, testified, consistent with the defendant's declaration, that the police entered defendant's apartment without a warrant by breaking or kicking down the door to his apartment and that defendant did not have a handgun. The third civilian witness, Enid "Jahaira" Acevedo, testified that she was not in the building at the time of defendant's arrest.
At approximately 4:00 PM on November 24, 2010, Officers Lawrence Perrotta
While the officers were walking south on the west side of Williams Avenue toward Newport Street, Officer Perrotta observed the defendant standing approximately one foot inside the entranceway of 578 Williams Avenue with a firearm in his right hand. (Sept. 23, 2011 Tr. at 10, 12-13, 15; Tr. at 206-07.) Officer Perrotta ordered the defendant "to drop" by shouting "police, don't move," and the defendant released the firearm and it fell on the ceramic tile floor at the entrance of the building. (Sept. 23, 2011 Tr. at 11, 15-16; Tr. at 203; see Gov't. Ex. 4 (picture of open doorway of 578 Williams Avenue).) Officer Finnegan then pushed the defendant approximately two to three feet inside the vestibule of 578 Williams Avenue in
After the defendant and the firearm were secured, because it was a cool November day and the defendant was wearing "a thin layer on the top and a pair of shorts," the officers accompanied the defendant to his rear apartment on the first floor of 578 Williams Avenue to "g[e]t clothes to keep him warm."
While Officers Perrotta and Finnegan were on patrol near Williams Avenue and Newport Street on November 24, 2010 at approximately 4:00 PM, three other NYPD officers from the 75th Precinct's SNEU were also on patrol nearby in a separate police van. (Sept. 23, 2011 Tr. at 34, 37-38; Tr. at 5, 31-32, 200.) These NYPD officers were Lieutenant Raymond Cotton, who was a sergeant at the time of defendant's arrest ("Sergeant Cotton"), Officer Jenica Nathaniel, and Officer Jesus Diaz. (Id.) Officer Perrotta testified that these officers were not present when he observed defendant with a firearm, but that he had seen Officers Nathaniel and Diaz five to ten minutes prior to observing the defendant and then saw them again less than thirty minutes after defendant's arrest. (Sept. 23, 2011 Tr. at 38-39.) Officer Perrotta also testified that he did not recall seeing any other people in the building when he walked out of 578 Williams Avenue with the defendant (id. at 46), and Officer Finnegan has no independent memory of another arrest in the vicinity of 578 Williams Avenue at or about the time that the defendant was arrested. (Tr. at 230-32.)
Sergeant Cotton testified that while he was in the police van with Officers Nathaniel and Diaz, Officer Perrotta used the "talk-around" channel on his police radio to tell Sergeant Cotton to come to 578 Williams Avenue. (Id. at 19-20.) Sergeant Cotton, along with Officers Nathaniel and Diaz, then drove the van to 578 Williams Avenue. (Id. at 20.) Upon his
The NYPD arrest report for Mr. Soler's November 24, 2010 arrest, which was completed by Officer Nathaniel and approved by Sergeant Cotton, states that the arrest location is the "front of 578 Williams Avenue" and contains a time of occurrence of 4:05 PM and a time of arrest of 4:10 PM. (Id. at 16-17; Def. Ex. C.) The arrest report also states that Mr. Soler "was observed in possession of a quantity of marijuana during a SNEU operation in plain view." (Def. Ex. C.) The complaint report for defendant's November 24, 2010 arrest, which was completed by Officer Perrotta and also approved by Sergeant Cotton, similarly states that the occurrence location is the "front of 578 Williams Avenue" and has an occurrence time of 4:05 PM through 4:10 PM. (Tr. at 17-18; Def. Ex. D.) The narrative description in the complaint report for defendant's arrest, which states that defendant "was observed [in] the entranceway of 578 Williams with a loaded firearm" that he "was holding in his hand in public view," is also consistent with Officer Perrotta's testimony described above. (Def. Ex. D.)
Additionally, Sergeant Cotton and Officer Finnegan testified that SNEU officers are not trained to perform forced entries into an apartment where a warrant has been issued and that they do not perform such entries. (Tr. at 24-25, 208-09, 211.) Rather, such forced entries are executed by an Emergency Service Unit ("ESU") consisting of six to eight officers, and the ESU officers typically have protective helmets, special bullet proof vests, rifles, and riot shields. (Id. at 25-27, 209-10.) If such safety and tactical precautions are not taken, Officer Finnegan testified that a breached entry would be an extreme hazard to an officer's safety. (Id. at 210.) Both Sergeant Cotton and Officer Finnegan
As described above, in support of his motion to suppress, defendant submitted a declaration stating that, on the afternoon of November 24, 2010, police officers "pushed into" his apartment on the first floor of 578 Williams Avenue, searched the apartment, arrested defendant and Mr. Soler inside the apartment, and "came out with a gun which they said they found in one of the rooms." (Declaration ¶ 2.) Defendant further stated that the police did not have a warrant and that he was not standing outside the apartment with a gun in his hand. (Id. ¶¶ 2-4.)
Maria Torres lives in an apartment on the second floor of 578 Williams Avenue with her granddaughter and grandson, and she testified at the suppression hearing pursuant to a defense subpoena. (Tr. at 44, 53-54.) Ms. Torres' daughter, Enid "Jahaira" Acevedo, lives in the first-floor apartment at the front of 578 Williams Avenue and defendant lives in the rear first-floor apartment. (Id. at 49, 75.) Ms. Torres has known the defendant for approximately three-and-a-half years as a neighbor, and although Ms. Torres does not know defendant's actual name, she has heard her daughter refer to the defendant as "Samurai," personally calls him Samuel, and considers him "a friend, respectful person, a good person who minds his own business, a friend." (Id. at 46, 52.)
Ms. Torres testified that on November 24, 2010 before defendant's arrest, she was at home in her apartment at 578 Williams Avenue when she heard "loud bangings on the ... door to the entrance of the building." (Id. at 47.) She was frightened because her grandson was outside, and so she opened the door to her apartment and spoke loudly, asking "who is it." (Id.) The people at the entrance to the building identified themselves as police, asked Ms. Torres where she lived, to which she responded the second floor, and the police said that "it was okay that they were going to go to the rear apartment." (Id. at 47, 63-64.) Ms. Torres then opened the door for the police, who were in "civilian clothes," and then she returned to her apartment upstairs and closed the door. (Id. at 48-49, 63-66.) Ms. Torres could not recall exactly how many police officers were at the front door to the building, but she testified that it was more than two and closer to "three or four" officers. (Id. at 64-65.)
When she was back in her apartment, Ms. Torres testified that she heard the police "knocking loudly in the rear door and I also heard when it was very strong and they broke the door down" to defendant's apartment. (Id. at 49-50.) During direct examination, Ms. Torres stated that she saw the police break down the door "[b]ecause at one point I opened the door, I went out into the hall and I looked and they were breaking it down with something that they brought with them, something they used to break down stairs." (Id. at 50.) During cross-examination, Ms. Torres confirmed that the police were using a battering ram to knock down the
When Ms. Torres did not hear any further noise downstairs, she went to her window and testified "that's when I saw they were taking out Samuel and the other fellow in cuffs" to "little vans." (Id. at 51.) After the police had left the building with defendant, Ms. Torres testified that she went downstairs and saw that the door to defendant's apartment was "broken" in that "the frame was loose from the door, that it was off its frame" and "they sort of like put it to the side." (Id. at 50-51, 67.) Finally, Ms. Torres testified that she does not know Mr. Soler and has not been contacted by the defendant or any of his friends and family since his arrest. (Id. at 51-52.)
Mr. Torres' daughter, Ms. "Jahaira" Acevedo, who has known the defendant for approximately three years, also testified at the suppression hearing pursuant to a defense subpoena. (Id. at 76, 82.) Ms. Acevedo confirmed that she was not present when the police arrested the defendant, and that Ms. Torres had called her while she was at a nail salon to tell her that the police were downstairs in the apartment building. (Id. at 71, 77.) After her nails had dried, Ms. Acevedo testified that she returned to 578 Williams Avenue — after the police had left — and observed that the front entrance door to the building "was a little dent, but the lock didn't want to lock," and that with respect to defendant's apartment door, "the whole frame of the door was out." (Id. at 77-79.) Ms. Acevedo also testified that she called Anthony Lugo or "Ank", Mr. Soler's cousin (Id. at 89) who lived with the defendant and "the other guy" whose name she did not know, in Apartment 1R, at 578 Williams Avenue, and told him "the cops went in his house, and the door was out of the hinges and he needed to come to the house." (Id. at 77-78, 89, 93.) Finally, Ms. Acevedo testified that she has not spoken with the defendant since his arrest. (Id. at 79.)
Because Ms. Acevedo was not present when the police arrested the defendant, and therefore has no personal knowledge of the circumstances surrounding defendant's arrest, the court does not credit her testimony.
Mr. Soler testified that he knew the defendant through his cousin, Anthony Lugo, and that he had known the defendant for a "few months" prior to the time of defendant's arrest. (Id. at 88-89.) Mr. Soler sometimes called the defendant Samurai because he likes knives and swords
On November 24, 2010, the day of the defendant's and Mr. Soler's arrests, Mr. Soler testified that he and the defendant
On cross-examination
Mr. Soler then testified that the police subsequently arrested him: "They put the cuffs on me, they picked me up and pushed me towards the living room, that they grabbed me, like pushed me towards the living room. Like they put us in separate rooms." (Id. at 97.) Mr. Soler described
In connection with his arrest on November 24, 2010, Mr. Soler was subsequently charged with Criminal Possession of Marijuana and was released the next day, on November 25, 2010. (Id. at 99-101.) Mr. Soler then returned to his apartment at 578 Williams Avenue the same day he was released and described his apartment door as "broken in two ... [b]asically, like the metal parts from the side of the walls were like ripped and pushed in, and the door was like bended in, like in the middle of the door, it was bended inways." (Id.) After a conversation with the defendant, Mr. Soler testified that he took pictures of the damaged door, and that when he developed the pictures at the request of Special Agent Hernandez, the pictures did not turn out properly. (Id. at 101-04, 126-27; see Def. Ex. F (contact sheet for the roll of film developed that does not show a damaged door).) In addition, after a conversation with defendant, Mr. Soler inquired about a surveillance camera across the street from 578 Williams Avenue "that wasn't facing to [defendant's] building." (Tr. at 126-27.)
Mr. Soler resolved his Criminal Possession of Marijuana charge by pleading guilty to disorderly conduct. (Id. at 178.) Mr. Soler, however, was subsequently arrested on two more occasions for possession of marijuana (Id. at 99) and has been arrested a total of ten times over his lifetime (Id. at 109). On cross-examination, Mr. Soler conceded that he has had several
Through Special Agent Ismael Hernandez, the government introduced a series of recorded phone calls made while defendant Vasquez was in prison at Rikers Island shortly after his arrest, (see Tr. at 236-39.) These calls are direct evidence of the defendant's admissions that he had a gun, and his efforts to convince others to lie on his behalf and to tamper with witnesses in order to fabricate a cohesive story regarding the circumstances of his arrest among himself and the other defense civilian witnesses, including Mr. Soler and Ms. Acevedo.
The first recording, between the defendant and Melissa Melendez, his girlfriend at the time (see id. at 108), was made at approximately 6:32 PM on November 26, 2010 — two days after the defendant's arrest — while the defendant was at the Otis Bantum Correctional Center at Rikers Island:
(Gov't Ex. 21A at 1-2.) Subsequently, the following day, on November 27, 2010, at approximately 7:36 PM, the defendant had another conversation with Ms. Melendez regarding her anticipated testimony:
(Gov't Ex. 22A at 7-9.) Finally, another two days later, on November 29, 2010, at approximately 5:52 PM, the defendant had a third conversation with Ms. Melendez about her testimony:
(Gov't Ex. 24A at 1-2.) These disturbing phone calls just days after the defendant's arrest reveal the defendant attempting to convince Ms. Melendez to perjure herself in front of the grand jury by testifying, contrary to the testimony of all the witnesses at the suppression hearing and the defendant's own declaration, that she was present in the defendant's apartment at 578 Williams Avenue at the time of his arrest and observed the police kick down the door and simply handcuff the defendant
The defendant not only attempted to fabricate a story with Ms. Melendez, but also sought to coordinate his story with Mr. Soler or "Jay" and Ms. Acevedo or "Jahaira."
(Gov't Ex. 22A at 2, 5-6.) The fact that defendant is compelled to instruct Mr. Soler to tell "the story" described above, which Mr. Soler states that he "know[s]" and which is consistent with defendant's declaration and the conversations he had with Ms. Melendez, strongly suggests Mr. Soler's testimony is a fabrication. Additionally, as the government points out, Mr. Soler's remark that Ms. Acevedo "had called her mom" after speaking with Mr. Lugo directly contradicts the testimony of Ms. Acevedo and Ms. Torres, who both testified that it was Ms. Torres who called Ms. Acevedo at the nail salon to tell her about the purported police entry into 578 Williams Avenue, and that Ms. Acevedo later called Mr. Lugo after she returned home. (Tr. at 71, 77; see Gov't Opp'n at 17 n.10.)
Defendant's "story" is further belied by his attempt on November 27, 2010 to have Ms. Melendez contact Ms. Acevedo ("Jahaira")
(Gov't Ex. 22A at 9-11.) The above conversation speaks for itself. Indeed, the defendant instructs Ms. Melendez how to start the conversation with Ms. Acevedo and to "work out the story with her," and he details exactly what Ms. Acevedo's testimony should be to corroborate defendant's declaration and the testimony of Mr. Soler. (Id.) Defendant specially instructs Ms. Melendez to tell Jahaira that he "wants [Jahaira] to say that the cops came in the house ... [t]hey kicked the door in" because "that alone works on my behalf, `cause it doesn't put me where they're saying that I'm at," and that Jahaira "never saw [defendant] with a gun." (Id.) While Ms. Acevedo ultimately did not testify that she was present at 578 Williams Avenue during defendant's arrest, the defendant's efforts to tamper with her testimony undermine her credibility as a witness.
As demonstrated in these recorded phone conversations, the story propounded by the defendant in his declaration and by the civilian witnesses through their testimony, is inherently unreliable because the defendant has clearly attempted to recruit others to fabricate testimony that corroborates his account. Additionally, the defendant attempted to ensure "the story matches up somehow" (Gov't Ex. 24A at 1) by harmonizing the circumstances surrounding his arrest among himself and two of the three civilian witnesses, all of whom lived within one floor of each other in the same building at the time of his arrest.
Finally, defendant's account of his arrest is most strongly undermined by his admission in three separate phone calls that he indeed did have a gun in his possession when he was arrested. The first admission by defendant occurs in a conversation five days after his arrest and three days after his conversation on November 26, 2010 with Ms. Melendez, in which he tells her to say they were in his apartment on the day of his arrest, (see Gov't Ex. 21A at 1-2.) On November 29, 2010, at approximately 12:24 PM, the defendant and an unidentified woman ("UF2") discuss the following:
(Gov't Ex. 23A at 1-2). Similarly, in another conversation at approximately 6:08 PM on the same day, the defendant told an unidentified woman that "[t]hey raided my crib ... I know, they came in my crib like fucking five o'clock in the afternoon, they kicked my door down. They caught me with a gun in my room." (Def. Ex. H1 at 5.) Although these accounts are consistent with the defendant's contention that the police entered his apartment without a warrant and by kicking down the door, the defendant's admission that he did in fact possess a gun directly contradicts his declaration and explains the statements he made to the defense civilian witnesses over the phone about the "story" they were to tell, indicating once again that the defendant's account cannot be credited.
The third conversation occurred on April 25, 2011 at approximately 10:37 AM between the defendant and his mother, during which the defendant explained the following:
(Gov't Ex. 25A at 1 (emphasis added).) The defendant then went on to describe a violent argument with Ms. Melendez's neighbor shortly before his arrest that had escalated "to the point where I was either going to kill him or he was going to try to kill me. One or the other." (Id. at 2.) This latter incident also provides a motive for why defendant possessed a gun on the day of his arrest and explains why, as Officers Perrotta and Finnegan testified, he was standing at the entrance to his building with a firearm in his hand.
"On a motion to suppress evidence in a criminal trial, once [defendant] establishes a basis for his motion, the burden rests upon the Government to prove, by a preponderance of the evidence, the legality of the actions of its officers." United States v. Wyche, 307 F.Supp.2d 453, 457 (E.D.N.Y.2004) (citations omitted); see also United States v. Matlock, 415 U.S. 164, 178 n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ("[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence."). "Deciding whether that burden has been met is not a mechanical, quantitative exercise; rather, the result turns on whether the trier of fact has been persuaded, even if only by the tiniest margin, that the requisite facts have been established." United States v. Irving, 09-CR-570 (JG), 2009 WL 4280287, at *2, 2009 U.S. Dist. LEXIS 110178, at *4 (E.D.N.Y. Nov. 25, 2009) (citing In re Winship, 397 U.S. 358, 367-68, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)).
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," U.S. Const. Amend. IV, "and this usually requires the police to have probable cause or a warrant before making an arrest." Herring v. United States, 555 U.S. 135, 136, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). In a "long line of cases, [the Supreme Court has] said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable." Virginia v. Moore, 553 U.S. 164, 171, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) (citations omitted); see also United States v. Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) ("The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest." (citations omitted)).
"Probable cause exists for an arrest if the totality of the circumstances, as viewed by a reasonable and prudent police officer in light of his training and experience, would lead that police officer to believe that a criminal offense has been or is being committed." United States v. Moreno, 897 F.2d 26, 31 (2d Cir.1990) (citations and quotation marks omitted); see also Savino v. City of New York, 331 F.3d 63, 76 (2d Cir.2003) ("Probable cause exists when an officer has `knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.'" (citation omitted)).
"Once an item of an incriminating nature is observed in plain view, police officers have probable cause to arrest a suspect." United States v. Cruz, 314 F.Supp.2d 321,
In carefully considering the evidence the parties adduced at the suppression hearing, the court, in order to make ultimate credibility determinations, has carefully weighed the conflicting factual accounts of defendant's arrest. After due consideration of all the credible evidence in the record, including the testimony and demeanor of the witnesses and the exhibits admitted into evidence, the court finds that "the government's presentation of the facts and the testimony of its witnesses are more credible than the version recited by the defendant." United States v. Marrero, No. 90 Cr. 823(LBS), 1991 WL 45058, at *3, 1991 U.S. Dist. LEXIS 3619, at *9 (S.D.N.Y. Mar. 26, 1991) (citation omitted).
Unlike Marrero and another case cited by the defendant, Irving, 2009 WL 4280287, 2009 U.S. Dist. LEXIS 110178 where there were direct material contradictions among the police officers' testimony, the testimony by Sergeant Cotton and Officers Perrotta, Finnegan, and Nathaniel was plausible, consistent, and credible.
The officers' credible testimony stands in stark contrast to that of the defendant's declaration and his civilian witnesses — at least two of which testified to circumstances indicating anti-police bias. The defendant's efforts to support his motion to suppress with a likely fabricated declaration and civilian witnesses who are likely testifying to a story concocted by defendant in accordance with his instructions are unavailing. Indeed, defendant's well-documented attempts to obstruct justice and tamper with witnesses render his declaration and his witnesses incredible. The defendant also admitted on two separate occasions that he did in fact have a gun in his possession on the day of his arrest, which directly contradicts his declaration and the testimony of Mr. Soler.
Moreover, there is a direct contradiction between the testimony of Ms. Torres and Mr. Soler regarding a material fact at issue — how the police entered defendant's apartment. Ms. Torres claimed that the police officers used a battering ram to break into the defendant's apartment (Tr. at 68-70), while Mr. Soler contended that the officers kicked the door down and said that he did not see a battering ram (Id. at 97, 117-18, 120). Given this inconsistency, it is no surprise that the defendant's and Mr. Soler's efforts to develop pictures of the allegedly broken door were not fruitful.
Finally, the court finds that the defendant's account of events is implausible given the credible and consistent testimony by Sergeant Cotton and Officer Finnegan that the SNEU team is simply not trained to perform forced entries into an apartment and that they do not kick down doors or perform such entries. (Id. at 24-27, 208-11.) Indeed, such forced entries are conducted by a designated Emergency Service Unit consisting of six to eight officers with protective helmets, special bullet proof vests, rifles, and riot shields. (Id.)
Accordingly, the court finds by a preponderance of the evidence that on November 24, 2010, Officer Perrotta, who was walking south with Officer Finnegan on Williams Avenue towards Newport Street, a drug prone area, observed the defendant in the entryway of 578 Williams Avenue holding a firearm in his right hand in plain view of the street. Officer Perrotta and his partner therefore had reason to believe
For the foregoing reasons, the government has met its burden to establish by a preponderance of the evidence that Officers Perrotta and Finnegan had probable cause to arrest the defendant and seize the handgun in plain view, and the motion to suppress is denied in its entirety.
The parties shall advise the court in writing via ECF by 5:00 PM on January 25, 2012 as to how they intend to proceed with this case, including whether they intend to proceed to trial on January 30, 2012.
SO ORDERED.
In addition, the defendant seeks to convince this court to disregard the police officers' testimony as false or unreliable on the basis of a New York Times article describing police abuses with respect to unjustified searches, the 1994 Mollen Commission report regarding police perjury in suppression hearings, and civil cases brought against Sergeant Cotton and Officers Nathaniel and Diaz. (see Def. Reply at 8-11.) Sergeant Cotton and Officers Nathaniel and Diaz, however, were not directly involved in defendant's arrest. Nevertheless, the court finds no basis on the record before it to question the credibility of the police officers in this case.
