U.S. v. Andrade, Criminal No. 06-10213-RWZ.
| Decision Date | 18 May 2007 |
| Docket Number | Criminal No. 06-10213-RWZ. |
| Citation | 502 F.Supp.2d 173 |
| Parties | UNITED STATES of America v. Clarence ANDRADE. |
| Court | U.S. District Court — District of Massachusetts |
Charles P. McGinty, Federal Defender's Office, Boston, MA, for Defendant.
Mary Elizabeth Carmody, U.S. Attoneys Office, Boston, MA, for Plaintiff.
ORDER ON PRETRIAL MOTION
Defendant, Clarence Andrade ("Andrade"), stands indicted on one count of possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1). He has moved to suppress evidence resulting from a police stop and search. (Docket # 21.) Based on the parties' motion papers and after an evidentiary hearing, I find the following facts and deny defendant's motion to suppress.
At 2:25 p.m. on Sunday, January 22, 2006, a New Bedford, Massachusetts, police operator received an emergency 911 telephone call from a male caller. The caller, told by the operator he was on a recorded line, reported that "[t]hree guys [are] looking to start with some other guy outside on the street here." .) The operator, who had a caller ID display showing the name and address associated with the calling telephone number, asked:
to which the caller replied "Yup." (Id.) He proceeded to tell the operator that there were "three guys, one looks to be Latino or something, ... just threatened the other guy, saying I'll come back and shoot you or kill you or whatever" and identified the individual being threatened as "liv[ing] here ... on the third floor." (Id.) Finally, he described the men and the direction in which he saw them leaving: "they all got hooded sweatshirts: a white, a gray and a black," and "... the three guys now, they're walking south on [what] looks like Pleasant Street." (Id.)
Sergeant John T. Catterall ("Catterall"), the Newt' Bedford patrol supervisor at the time, received a textual report of the call on a mobile data computer in his cruiser. (Catterall Aff. ¶ 4 .) This report identified the caller as the first-floor tenant at 37 Madison Street and the potential victim as living on the third floor. (Id.) He proceeded to 37 Madison Street, notified dispatch that he did not see the suspects there, then got out of his car to locate the caller. (Id. ¶ 9.) Just before he began to interview the first-floor tenant, Catterall heard over his walkie-talkie that another officer had stopped some males at Russell and Purchase Streets. (Hr'g Tr. 78:16-80:5, 114:19-22, Mar. 20, 2007 (Docket # 33).) The first-floor tenant, Jason Alcock ("Alcock"), who shared a last name and residence with the registered owner of the telephone account, acknowledged that he had made the 911 call. (Catterall Aff. ¶¶ 10, 18.) Following his conversation with Alcock, Catterall interviewed Ernie Souza ("Souza"), the third-floor tenant at 37 Madison. (Id. 81:19-23.)
As it turned out, Alcock had related the facts of the interaction incorrectly to the 911 operator. The individuals had not threatened to shoot the third-floor tenant, rather the third-floor tenant had been lighting firecrackers and the three men stopped to admonish him. (Id. 82:5-12.) They "yell[ed] to him that it wasn't smart for him to light firecrackers when there was a shooting nearby earlier that morning." (Catterall Aff. ¶ 11.) Souza stated that "no one mentioned shooting anyone." (Id.) After an unfriendly exchange of words, the men walked off. (Id.)
Prior to the 911 call just described, shortly after midnight on the same day, New Bedford police had received numerous reports of shots fired. (Id. ¶ 2.) The police responded and recovered approximately a dozen spent casings from the area of Purchase Street and Madison Street. (Id.) About an hour later, two men with non-life threatening gunshot wounds arrived at St. Luke's Hospital. They admitted to being in the area, but provided no further information. (Id.) A police lieutenant prepared a memo detailing these facts and distributed it at 3:08 a.m. by email to, inter alia, Officer Gary Sarmento ("Sarmento"). Police email records indicate Sarmento opened the memo at 10:30 that morning, and he testified that he read it prior to encountering defendant that day.1 (Sarmento Aff. ¶ 3 ; Hr'g Tr. 8:13-9:4 Number 37 Madison Street is located one house away from the intersection of Madison and Purchase Streets. (Catterall Aff. ¶ 5.)
Sarmento is an experienced officer who has been involved in numerous criminal investigations, including investigations of shootings and gang activity. (Sarmento Aff. ¶ 2.) At the March 2007 hearing, he testified that he has been a New Bedford policeman for 15 years; for the last 18 months he has been assigned to the community policing unit. (Id. ¶ 1.) Sarmento described the area around Madison and Purchase Streets in downtown New Bedford as "a high crime area that is inhabited by, among others, youths involved in gang activity and is an area where, in [his] experience multiple shootings have occurred." (Id. ¶ 2.)
In mid-afternoon of the day of the shootings, Sarmento was on uniformed patrol in a marked police car in downtown New Bedford. (Id. ¶ 3.) He was aware that no one had been arrested or identified for the earlier shootings. (Id.) At approximately 2:37 p.m., he heard a radio dispatch advising that "a complainant on the first floor" of 37 Madison Street reported:
... some males were arguing with a party that lives on the third floor here, and they threatened to come back and shoot the party. [T]hey are going to be three males, all had hooded sweatshirts, uh, black, gray and white in color. Left south on Pleasant Street on foot.2
.) Sarmento confirmed with the dispatcher that the males were "walking south on Pleasant from Madison" and reported that he was in the area. (Id.) He turned east onto Russell Street, one block west of Pleasant Street. Russell Street runs one block south of and parallel to Madison Street and perpendicular to Pleasant Street. (See Sarmento Aff., Ex. D.) He did not see anyone as he crossed Pleasant Street, however, three houses down, at the next intersection, he observed four men and a woman walking south down Purchase Street (Sarmento Aff. ¶ 6.) Three of the men were clad in a black, a gray and a white hooded sweatshirt respectively. (Id.) Approximately fifteen seconds after Catterall radioed that he was going to try and locate the caller at 37 Madison Street, Sarmento reported to dispatch that he "[had] those males at, uh, Russell and Purchase." (Dispatch Call Tr., Jan 22, 2006, 14:35:42.)
Sarmento pulled over, got out of his car and told the group to stop. (Sarmento Aff. & para;¶ 7-9.) Four of the individuals complied, but defendant continued forward. Sarmento put out his arm to block defendant and again ordered him to stop. (Id.) Defendant continued forward, walked into Sarmento's arm, refused to make eye contact and looked around "as if he was looking for a direction in which to flee." (Hr'g Tr. 17:22-18:14, 19:6-10, Mar. 21, 2007.) Sarmento observed that defendant and another male had their hands hidden in the front pockets of their sweatshirts. (Sarmento Aff. ¶¶ 7-8.) He also recognized one of the group, the male in the black hooded sweatshirt, as having a criminal history and as having been involved in "violent gang related activity." (Id. ¶ 11.) Sarmento then "grabbed Andrade by the sweatshirt and held him against the trunk of the cruiser bent over by the waist." (Id. ¶ 9.) He did the same to the second male who also had his hands hidden in his sweatshirt. (Id. ¶ 12.) Sarmento testified that he was concerned that the men might be armed and that he felt in danger. (Hr'g Tr. 20:4-22, Mar. 21, 2007.)
Sarmento asked another officer, just arriving on the scene, to take control of the second male and turned his attention to defendant, intending to frisk him for weapons. (Id. 22:2-8.) Looking down, he saw "the handle of the firearm in [defendant's] waistband." (Id. 22:11:13.) The firearm was visible because the sweatshirt had bunched up around the back of defendant's neck and been pulled up above his waist when Sarmento put him over the trunk of the cruiser. (Id. 22:14-24:14.)
Sarmento placed defendant on the sidewalk, handcuffed him, and begin to search him further. (Sarmento Aff. ¶ 14.) He discovered a second handgun along with a baggie containing several rounds of ammunition. (Id.) He then arrested defendant. (Id.)
The transcribed radio transmissions show one and one-half minutes elapsed between Sarmento's announcement that he spotted the group and another officer, Kurtis Gonsalves ("Gonsalves"), calling for additional police officers and sending a garbled transmission concerning a "firearm." (Id., Ex. B., 14:37:17.) The total time between Catterall's transmission that he was "gonna try to locate that caller [at 37 Madison Street]" and Gonsalves' transmission concerning a "firearm" was approximately two minutes. (Id.)
Andrade now moves to suppress the two guns and the ammunition seized on the ground that the officers had neither reasonable suspicion nor probable cause to stop and search him. (Docket # 21.) In particular, he argues that information received from the "anonymous" 911 caller cannot establish adequate reasonable suspicion to justify the stop by Sarmento. (See Docket # 22, 4-7.) The government argues that the totality of circumstances leading up to the arrest sufficiently established reasonable suspicion for a brief, investigative stop and a pat-frisk for weapons. (See Docket # 27.)
"An officer may conduct a brief investigatory stop when he or she...
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U.S. v. Andrade
...revealed that Andrade had two weapons and ammunition with him. Accordingly, the district court denied Andrade's motion. United States v. Andrade, 502 F.Supp.2d 173 (D.Mass. 2007). The defendant thereafter entered a guilty plea, reserving the right to challenge the denial of his suppression ......