U.S. v. Bellamy

• Decision Date: 09 January 2009
• Docket Number: No. 08-CR-204 (KAM).,08-CR-204 (KAM).
• Citation: 592 F.Supp.2d 308
• Parties: UNITED STATES of America, Plaintiff, v. Bill BELLAMY, Defendant.
• Court: U.S. District Court — Eastern District of New York

592 F.Supp.2d 308

UNITED STATES of America, Plaintiff, v. Bill BELLAMY, Defendant.

No. 08-CR-204 (KAM).

United States District Court, E.D. New York.

January 9, 2009.

COPYRIGHT MATERIAL OMITTED

Patrick Sean Sinclair, United States Attorneys Office, Brooklyn, NY, for Plaintiff.

Douglas G. Morris, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

MATSUMOTO, District Judge:

Before the court is defendant Bill Bellamy's motion to suppress all physical evidence seized on January 24, 2008, including a Ruger .357 revolver, ammunition, marijuana, crack cocaine, and "ziplock" bags containing those drugs and several pieces of paper. Bellamy is charged with (1) being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 3551 et seq.; (2) possession with intent to distribute cocaine base and marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 841(b)(1)(D), and 18 U.S.C. §§ 3551 et seq.; and (3) possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 3551 et seq. (See dkt. no. 7, Indictment.)

The court held a suppression hearing on July 24, 2008, at which the government presented one witness, New York City Police Department (NYPD) Officer Jason Ianno. Defendant similarly called one witness, Mr. Phillip Martin, an investigator for the Federal Defenders of New York.

The court ordered post-hearing supplemental briefing regarding specified issues on September 17, 2008, and granted the parties an extension to make submissions, the last of which was submitted by defendant on November 13, 2008. Upon consideration of the parties' written submissions and the testimony and evidence presented at the suppression hearing, and for the reasons stated below, the court grants defendant's motion to suppress the marijuana, crack cocaine, and "ziplock" bags containing those drugs and several pieces of paper, and denies defendant's motion to suppress the Ruger .357 revolver and ammunition.

I. FACTUAL FINDINGS

Officer Jason Ianno, whose testimony the court finds credible, has been a police officer with the NYPD for four years, assigned to patrol the 81st Precinct, which includes the Bedford Stuyvesant section of Brooklyn, New York. As a police officer, Officer Ianno received specialized training in narcotics packaging and arrests. He testified that a typical form of packaging for marijuana is to use small, jewelry-sized ziplock plastic bags, larger ziplock bags and cigarette wrappers. On a number of occasions, Officer Ianno has consulted with the NYPD Street Narcotics Unit (SNU), a precinct based unit that investigates and makes arrests for narcotics offenses. (Transcript of Suppression Hearing ("Tr.") 5-7.)

Officer Ianno is familiar with and has had training in the City's Field Trespass Affidavit Program (FTAP). FTAP is a program in which a landlord or owner of a premises executes an affidavit at the precinct, permitting the police to enter the building to ensure that individuals, who are neither tenants nor guests of tenants, are not allowed to loiter, trespass or conduct other illegal activities inside the building. Officer Ianno is not responsible for administering the FTAP program or for the filing of FTAP affidavits. (Tr. 7-8.)

Officer Ianno understood that on January 24, 2008, the Buckingham building, located at 165 Van Buren Street in Brooklyn, New York, was active in the FTAP program. He knew that the Buckingham building was a drug prone location because he worked "all the time" with the SNU team, which "keeps an eye" on the building and whether its FTAP affidavit is current. (Tr. 40-41.) Officer Ianno testified that, in addition to the FTAP affidavits, buildings that participate in the FTAP program have signs posted on the outside usually stating "no trespassing" or "tenants and their guests only." (Id. at 8.) On January 24, 2008, the Buckingham building, located in a "drug prone," high-crime area, had a sign posted over the doorway indicating "Tenants and their Guests ONLY—No Trespassing." (Tr. 13, 19, 37; Gov. Hr'g Ex. 3A.)

Prior to January 24, 2008, Officer Ianno had patrolled the vicinity around the Buckingham building, at the corner of Van Buren Street and Marcus Garvey Boulevard,¹ and testified that complaints of trespass in the vicinity were a "common occurrence," and that he would answer at least one such complaint a night in that area. Officer Ianno also recalled making two arrests for drug trafficking in the vicinity of the Buckingham building. He did not receive any complaints about trespassers or drug trafficking on the evening of January 24, 2008. (Tr. 16-17, 36-37.)

On January 24, 2008, at approximately 8:30 p.m., Officers Ianno and Edgar Gonzalez were in uniform, patrolling the 81st precinct in a marked police van driven by Officer Gonzalez. The officers were driving westbound² on Van Buren Street, toward the intersection of Marcus Garvey Boulevard. As the police van approached the Buckingham building, Officer Ianno looked through its wire mesh door into the lighted vestibule and observed Bellamy, whom he described as a "suspicious-looking gentleman" and as a large black male wearing a "dark lidded cap" and dark jacket, standing in the front vestibule. (Tr. 8-9, 14, 18-19.)

Officer Ianno perceived Bellamy as a suspicious individual because Bellamy "appeared to be waiting for somebody," indicating the possibility that Bellamy was engaged in a "drug transaction" or "trespassing possibly in a drug transaction," in an FTAP location. (Tr. 19.) Officer Ianno, however, did not testify regarding the length of time that he was able to observe Bellamy as he and Officer Gonzalez drove by in the police van. (Id.) Officer Ianno suspected Bellamy of trespassing based on prior complaints of trespassing in the area and the officer's understanding that the owner of the Buckingham building participated in the NYPD's FTAP program.³ (Tr. 7-8, 19, 36-37; Compl. ¶ 4.)

After seeing Bellamy through the Buckingham building's door, the officers decided to stop him. (Tr. 19.) Accordingly, they circled the block and parked the police van on the southbound, left side of Marcus Garvey Boulevard near the corner of Van Buren Street, behind the Buckingham building line and along side the edge of the building, out of sight of the building's entrance "so the van wouldn't be observed." (Id. at 20-21.) Upon exiting the vehicle, but before approaching the Buckingham building entrance, Officer Ianno observed another man coming from the general vicinity of the Buckingham building toward Marcus Garvey Boulevard where the officers' van was parked.⁴ This second man, an "unkempt" black male, wearing a black hat, dark pants and a dark jacket, appeared to Officer Ianno to be addicted to crack, but not currently under the influence of drugs. (Tr. 21-23, 56-57.) Officer Ianno stated that, as a police officer, he has "daily" encounters with individuals under the influence of, or addicted to, drugs. Officer Ianno did not observe this second individual interact with anyone else, describe any facts or express any belief that this second person had been engaged in a drug transaction or other criminal activity. The officers did not stop this individual or ask him any questions. (Tr. 22, 56-57.)

When the officers rounded the corner from Marcus Garvey Boulevard onto Van Buren Street, they walked onto a wheelchair-accessible ramp leading from the entrance of the Buckingham building. (Tr. 23.) Looking straight at the entrance to the building, the ramp to the sidewalk is on the left side of the door and stairs leading from the door to the sidewalk are on the right side of the door. (Def. Mot., Ex. E.) As the officers walked onto the ramp, they observed Bellamy coming down the ramp toward the officers. (Tr. 23; Compl. ¶ 5.) Upon observing the uniformed officers, Bellamy "started to make furtive movements," and "started moving his eyes back and forth as though looking for an escape." (Tr. 23.) Officer Ianno stated that Bellamy moved his eyes back and forth repeatedly, although he did not count the number of times that he did so, and was about fifteen feet away from the officers. (Tr. 25-26, 59-60.) Officer Ianno defined "furtive movements" as "a nervous movement indicative of someone being nervous or someone who's ... got something that they're trying to hide." (Tr. 59.) Officer Ianno also testified that Bellamy took a "stutter step,"⁵ describing it as follows: "It's basically when you're approaching, you see something that catches you by surprise and you kind of freeze for a second as you're moving." (Tr. 24, 59.)

The officers did not recognize Mr. Bellamy or have any knowledge of him before January 24, 2008. (Tr. 58.) The officers approached and asked Bellamy if he lived in the building, to which he responded affirmatively. (Tr. 23, 60.) The officers did not know if Bellamy answered them truthfully at the time he responded that he lived in the building. (Tr. 60.)

Officer Ianno took Bellamy "by the elbow," turned him around in a counterclockwise direction and "brought" Bellamy back up the ramp to the area in front of the entrance of the Buckingham building, where there was better, direct light from two exterior lights and the interior vestibule light. (Tr. 24-25.) Officer Ianno recalled that there was no direct light in the middle of the ramp where the officers first encountered Bellamy.⁶ Officer Ianno testified that there was also a streetlight on the corner that provided direct light. (Tr. 25.)

Officer Ianno turned Bellamy around so that Bellamy's face was to the wall and his back was to the officers. (Tr. 68.) Officer Ianno asked Bellamy for identification, which he agreed to provide. (Tr. 23, 60.) After responding that he possessed identification, Bellamy reached for his identification with his left hand toward his left front pocket⁷ (Tr. 23, 27, 69), at which time Officer Ianno observed a plastic ziplock bag...