U.S. v. Harty, Criminal No. 04-10120-RGS.

• Decision Date: 07 March 2007
• Docket Number: Criminal No. 04-10120-RGS.
• Citation: 476 F.Supp.2d 17
• Parties: UNITED STATES of America v. Loren HARTY.
• Court: U.S. District Court — District of Massachusetts

476 F.Supp.2d 17

UNITED STATES of America v. Loren HARTY.

Criminal No. 04-10120-RGS.

United States District Court, D. Massachusetts.

March 7, 2007.

COPYRIGHT MATERIAL OMITTED

Christopher F. Bator, William H. Connolly, Robert E. Richardson, United States Attorney's Office, Boston, MA, for United States of America.

Stylianus Sinnis, Timothy G. Watkins, Federal Defender's Office, Boston, MA, for Loren Harty.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTIONS TO SUPPRESS AFTER EVIDENTIARY HEARINGS

STEARNS, District Judge.

INTRODUCTION

Defendant Loren Harty was arrested by Boston police officers on January 20, 2004, and charged under state law with, among other crimes, the illegal possession of a firearm. Probable cause for Harty's arrest was based on identifications made by civilian witnesses during a street side showup. Upon being taken into custody, Harty's boots were seized as evidence. While the state charges were pending, Harty was indicted by a federal grand jury as a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). While being driven by agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) to the federal court in Boston for an initial appearance, Harty made incriminating statements. He now seeks to suppress the identifications, the boots, and the statements. For reasons that will be explained, the motions to suppress the identifications and the boots will be DENIED. The motion to suppress the statements will be ALLOWED.

FINDINGS OF FACT

After an extended evidentiary hearing and post-trial briefing, I make the following findings of fact.

1. Shortly after 4:00 p.m. on January 20, 2004, the Boston police received two 911 calls reporting gunshots at 42 Julian Street in Roxbury. The callers gave their names and addresses. One of the callers Mariluz Cortez, resided at 38 Julian Street. Cortez described the gunman as a 5'3" to 5'4" black Hispanic male in his thirties, medium build, and wearing a black jacket, black jeans, and a black hat. Cortez stated that the gunman was headed in the direction of a liquor store on Blue Hill Avenue.

2. The 911 reports were broadcast by a police dispatcher. Officers converged on 42 Julian Street and quickly located three witnesses in a second floor apartment — Mark McCallister, the tenant, Damien Wiley, his cousin, and King Belin, a friend of Wiley's. Wiley stated that he had met Belin just before 4:00 p.m. on Blue Hill Avenue while walking to McCallister's apartment. The two men were accosted by a man whom they did not know. The man said to them, "You know me, I'm L. Got anything?" Wiley and Belin replied "no." They then asked "L" to leave them alone. In response, "L" challenged them to a fight. Wiley and Belin attempted to walk away, but "L" followed them to 42 Julian Street. After exchanging words with Wiley at the entrance to the building, "L" disappeared. Wiley and Belin proceeded to McCallister's apartment. Ten minutes later, the three men heard a ruckus on the street. From a window, they saw "L" waving his arms in their direction and shouting insults. McCallister left the apartment and confronted "L," demanding that he leave. "L" refused, insisting that McCallister, "Tell them niggers to come down. I am going to pop them." "L" then drew a silver-colored handgun from the waistband of his pants. Upon seeing the gun, McCallister ran back into the building. As he fled up the stairs, he heard a gunshot. "L" chased McCallister into his apartment. He then began kicking at the door screaming, "I am going to get you motherfuckers."

3. Eric Gaines, a hospital security guard who lived in the first floor apartment at 42 Julian Street, arrived home just before the scuffle between McCallister and "L" began. Gaines told a Suffolk County grand jury that he also had been accosted on Blue Hill Avenue by "L." In Gaines' opinion, "L" was drunk or high on drugs. Gaines told "L" that he did not know who he was. "L" nonetheless followed Gaines home. As they walked to 42 Julian Street, Gaines observed the handle of a gun protruding from beneath "L's" shirt. As Gaines fumbled for the key to his apartment, "L" became agitated and began yelling to the residents of the second floor apartment to "bring them niggers downstairs so I can pop them." McCallister then came out of the building and confronted "L". Gaines attempted to push McCallister back inside the vestibule. "L" followed them and drew the gun. As McCallister scrambled up the stairs, Gaines struggled to open the door to his apartment. Failing in the effort, he ran back towards the street, brushing by "L" as he did so. As he reached the door, he heard the report of a gunshot coming from the hallway.¹

4. Officers Jon-Michael Harber and Edward Gately were among the officers in the area of Julian Street when the 911 calls were broadcast. They drove immediately to the liquor store on Blue Hill Avenue that they knew to be closest in proximity. When they arrived at the store some two or three minutes later, they saw Harty walking towards them. Gately noted that Harty bore a resemblance to the description of the gunman. Harty was then twenty-eight years old, black, had a medium build, and was wearing a black jacket and dark jeans.²

5. Harber recognized Harty from a prior arrest. He said to Gatley, "That's Loren Harty. Stop him." Harber knew that Harty had been previously arrested for felony offenses, including a firearms charge. As Harber and Gately got out of their cruiser, Harty threw his hands in the air insisting, "I didn't do anything." In Harber's opinion, Harty appeared uncharacteristically nervous. When Harber began a pat frisk, Harty exclaimed, "I don't have nothing. I don't have a gun."

6. After speaking with the officers at 42 Julian Street, Harber and Gately decided to have Harty taken to the scene of the shooting for purposes of a showup. Upon arriving at Julian Street, Harty was confined in a cruiser while Harber went to the second floor apartment to speak with McCallister, Belin, and Wiley. The three men told Harber that they would be able to identify the gunman. At Harber's radioed request, Harty was removed from the cruiser and positioned between Gately and at least one other uniformed officer. Wiley and McCallister made positive identifications of Harty from the vantage of the second floor window.³

7. When Harber radioed Gately that Harty had been positively identified by the men in the apartment, Gately placed Harty under arrest. Approximately seventeen minutes had elapsed from the time Harty had been stopped on Blue Hill Avenue.

8. While Harty was standing by the cruiser, Cortez shouted to the officers from her third floor window that Harty was the man she and her son had seen earlier with a gun. After completing the arrest, Gately spoke to Cortez. She stated that she had sent her twelve year old son out earlier to rent a video. He had come running back up the stairs screaming about a man with a gun. Cortez then went to the window. She observed Harty standing in front of 42 Julian Street waving a gray handgun and yelling for someone to come outside. After hearing a gunshot, Cortez returned to the window and saw Harty walk behind a building at 4 Rand Place towards the liquor store on Blue Hill Avenue. She then called 911.

9. Gately traced the route Cortez had seen Harty take. He followed a set of footprints in the snow to an open field at the intersection of Julian Street and Rand Place.⁴ He found a silver-plated .357 magnum Ruger revolver hidden between two rocks and covered with a brick. The chamber of the revolver contained four live rounds of ammunition and one spent cartridge.

10. While in state custody awaiting trial, Harty was indicted by a federal grand jury. On March 19, 2004, at the conclusion of a state court proceeding, he was taken into federal custody by ATF Special Agent Lisa Rudnicki. While en route to the federal courthouse in Boston, Rudnicki read the Miranda warnings to Harty from a wallet card. Harty indicated that he understood his rights. Rudnicki then told Harty that he had been indicted as a felon in possession of a firearm. Harty expressed disbelief that the "feds would take his case." Harty was nervous, visibly upset, and began hyperventilating. Rudnicki asked Harty if he had any information about the gun that ATF might find "useful." Harty stated that he had taken the gun "off some kids" with whom he had been fighting. Special Agent Phillip Ball, who was driving the car, interrupted and told Harty "do himself a favor" by talking first with his attorney. Rudnicki then told Harty that if he had anything else to say he should arrange an interview through his lawyer. Rudnicki then began asking Harty for "personal information." When Harty insisted to Rudnicki that his prior arrests were for minor alcohol-related offenses, she showed him a copy of his Board of Probation criminal record. She also told Harty that in her opinion he qualified as an armed career criminal.

DISCUSSION

A. The Motions to Suppress Identifications

Harty makes three interwoven arguments for suppressing the McCallister and Wiley identifications. First, he maintains that he was stopped and detained by Harber and Gately without reasonable suspicion. Second, he argues that his involuntary removal to 42 Julian Street converted the detention into a de facto arrest for which there was no probable cause. And third, he argues that this "unbroken chain of illegality" implicates the "fruit of the poisonous tree" doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In the alternative, Harty contends that the showup identification was impermissibly suggestive and therefore intrinsically unreliable.

1. Reasonable Suspicion

"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.... A brief stop of a suspicious individual, in...