100 F.3d 7 (2nd Cir. 1996), 339, United States v. Peterson

Docket Nº:339, Docket 96-1212.
Citation:100 F.3d 7
Party Name:UNITED STATES of America, Appellee, v. Shawn PETERSON, Defendant-Appellant.
Case Date:November 04, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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100 F.3d 7 (2nd Cir. 1996)

UNITED STATES of America, Appellee,


Shawn PETERSON, Defendant-Appellant.

No. 339, Docket 96-1212.

United States Court of Appeals, Second Circuit

November 4, 1996

Argued Oct. 4, 1996.

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Bernadette Miragliotta, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, Emily Berger, Assistant United States Attorney, Brooklyn, NY, on the brief), for Appellee.

Peter J. Fabricant, New York City, for Defendant-Appellant.

Before: KEARSE, LEVAL, and CABRANES, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Shawn Peterson appeals from a judgment entered in the United States District Court for the Eastern District of New York following a jury trial before Sterling Johnson, Jr., Judge, convicting him, as a convicted felon, of possessing a firearm, in violation of 18 U.S.C. § 922(g)(1) (1994). He was sentenced principally to 87 months' imprisonment, to be followed by a three-year term of supervised release. On appeal, Peterson contends that the district court erred (1) in denying his pretrial motion to suppress evidence, and (2) in excluding at trial the testimony he had given before a state grand jury. Finding no merit in his contentions, we affirm.


This case arose out of events that occurred early in the morning of September 20, 1994. The description by government witnesses included the following.

At approximately 12:50 a.m., New York City Police Officers Michael Saladino and Ischaler Grant were patrolling a high-crime area of Brooklyn in which police had made numerous arrests for weapons and narcotics offenses. Though they were in plain clothes and an unmarked car, Saladino and Grant were well known in the area as police officers. They observed three men, including Peterson, who had been standing on the sidewalk; when the men noticed the officers, they ducked behind a parked vehicle. Suspicions aroused, the officers parked and exited their car. As they did so, one of the three men emerged from behind the vehicle, identified himself as a security guard in a nearby housing project, and said, "Everything's all right over here." The officers, who were aware that some security guards at the project had been involved in ongoing criminal activity, including the possession and sale of guns, produced their identification and asked the men their names, addresses, and reasons for being at that location.

Peterson, who wore a noticeably bulging knapsack on his back, gave his name; as to his address, he at first stuttered Georgia but then changed his answer to Hempstead (a New York town). He appeared nervous, agitated, and evasive. He told the officers that he had come to visit a friend; when asked the friend's name, he did not answer. During the questioning of Peterson, the two other men departed without hindrance. When Peterson was asked what was in the knapsack, he responded, "what knapsack?" After Saladino pointed out the obvious, Peterson responded that there was nothing in the knapsack. When Saladino stated that he could clearly see that there was something in the knapsack, Peterson stated, "it's not my knapsack." Saladino then asked whether he could examine it, and Peterson removed the bag and handed it to Saladino. Inside the knapsack, Saladino found two .25 caliber semi-automatic handguns and several rounds of ammunition.

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Peterson was arrested and taken to the police station. After being advised of his Miranda rights, he told the police that he had been given the knapsack by Anthony Woods, one of the men on the scene who had departed. Peterson admitted that he had given Saladino permission to search the bag.

In October 1994, Peterson was indicted by a New York State grand jury for firearm possession. In February 1995, on the basis that he had been convicted of a felony in New York State in 1988, Peterson was indicted by a federal grand jury for possession of firearms by a felon. The state charge against Peterson was dismissed without prejudice.

Prior to trial, Peterson moved to suppress the evidence seized incident to his arrest. United States Magistrate Judge Roanne L. Mann, to whom the motion was referred for report and recommendation, received written submissions and heard evidence presented by the government, including that described above; Peterson did not testify. The magistrate judge recommended that the motion be denied on the grounds that Peterson's encounter with the police was consensual and did not require reasonable suspicion, and that even if the encounter became a detention upon Saladino's asking what was in the bag, the officers had reasonable suspicion justifying the detention. The magistrate judge further opined that Peterson's rights were not violated by the search of the knapsack, either because by denying ownership Peterson had abandoned it, or because, if he did not abandon it, he gave valid consent to its search. The district judge adopted the magistrate judge's recommendations and denied the motion to suppress.

At trial, the seized evidence was admitted. Peterson did not testify, but he sought to introduce testimony he had given...

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