U.S. v. Jenkins

• Decision Date: 08 July 2004
• Docket Number: No. 04 Cr. 179(DC).,04 Cr. 179(DC).
• Citation: 324 F.Supp.2d 504
• Parties: UNITED STATES of America, v. James JENKINS and Derrick Luther, a/k/a "Derrick L. Hall," Defendants.
• Court: U.S. District Court — Southern District of New York

324 F.Supp.2d 504

UNITED STATES of America, v. James JENKINS and Derrick Luther, a/k/a "Derrick L. Hall," Defendants.

No. 04 Cr. 179(DC).

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

July 8, 2004.

David N. Kelley, United States Attorney for the Southern District of New York, by John J. O'Donnell, and Glenn Colton, Assistant United States Attorneys, New York, NY, for Plaintiff.

Leonard F. Joy, The Legal Aid Society, by Steven M. Statsinger, and Richard E. Signorelli, New York, NY, for Defendants.

MEMORANDUM DECISION

CHIN, District Judge.

On January 18, 2004, at approximately 11:30 p.m., defendants James Jenkins and Derrick Luther were passengers in a sports utility vehicle (the "SUV") in the Bronx. Police officers in an unmarked car stopped the SUV. Two hand guns were found. Jenkins and Luther each made statements admitting responsibility for one of the weapons. Both had previously been convicted of a felony, and they were indicted in this case for unlawful possession of a weapon.

Jenkins and Luther move to suppress the guns and their statements. An evidentiary hearing was held on June 15, 2004. For the reasons that follow, the motions are denied. My findings of fact and conclusions of law follow.

STATEMENT OF THE CASE

A. The Facts

On the evening of January 18, 2004, Jenkins and Luther were riding in the SUV, a 2000 bluish-grey Ford Expedition, in the Bronx. (Tr. 6, 8, 17, 93-94, 133, 140; Luther Exs. A1-A9).¹ Three others were in the SUV as well: the driver, Keith Hazel; the owner, Rodney Hall; and a woman. (Tr. 15, 17, 101). Hall and Luther are brothers. (Id. 132).

New York City police officers Owens and Lynch and sergeant Patelli were in plain clothes riding in an unmarked police vehicle. (Id. 6-7). Owens was driving. (Id. 7). At approximately 11:30 p.m., as the officers were proceeding northbound on Valentine Avenue, a two-way street, he saw the SUV coming toward him headed southbound on Valentine, in the vicinity of 182nd Street. (Id. 7-8). The SUV had no front plate, and Owens took note of that fact. (Id. 8).

The front windshield of the SUV was not tinted, except for a six-inch strip across the top. The SUV had three side windows. The driver's side window was not tinted, but the middle and rear side windows were fully tinted. The rear windshield was fully tinted as well. The tinting in the middle and rear side windows and in the rear windshield was so dark that the officers could not see inside the vehicle through those windows. (Luther Exs. A1-A9; Tr. 93-94). The SUV also had side rearview mirrors on both the driver's side and the passenger's side. (See Tr. 41; Luther Exs. A2, A3).

As the SUV passed, Owens and Lynch saw that at least some of the SUV's windows were tinted.² (Tr. 8, 14, 99, 109). Owens looked in his sideview mirror, and he was unable to see a rear license plate. (See id. 8, 14, 45). Lynch also could not see a rear license plate. (Id. 99, 109). In fact, the SUV had a rear temporary Delaware plate (id. 136), but the temporary plate was extremely difficult to read. (See Luther Exs. A1, A2; GX 6).³ The rear license plate was illuminated only by two small yellow lights that did not provide much illumination. (Id. 94). A reasonable police officer seeing the temporary plate at night from a distance as the SUV was moving would have had great difficulty determining that it was any kind of legitimate license plate, much less a temporary Delaware plate.

Owens decided to stop the SUV. (Id. 14). He made a broken u-turn, proceeded southbound on Valentine Avenue, caught up to the SUV, and pulled it over. (Id. 13-14). Only "[s]econds" elapsed from the moment Owens first noticed the SUV until he stopped it. (Id. 35).

Owens exited the police vehicle and approached the SUV, on the driver's side. His focus was on the driver of the SUV. As he walked toward the SUV, because of the tinted windows, he could not see how many people were in the SUV. He saw that the driver's window was down a bit; it came down further as he got closer. (Id. 14-16).

In the meantime, Lynch and Patelli had exited the police vehicle as well. Lynch approached the SUV on the driver's side, behind Owens. Patelli approached on the passenger's side. (Id. 16, 100). Lynch also could not see inside the SUV, because of the heavily tinted rear windows. Lynch noticed that there was a rear license plate, but he did not look at it closely and did not determine whether it was valid. (Id. 100-01). He did notice letters and numbers and saw that it was a temporary, out-of-state plate. He did not realize at that point that it was a Delaware plate. (Id. 112).

As Owens started to speak to the driver, Keith Hazel, he noticed an odor of marijuana coming from the now-opened driver's window of the SUV. Owens asked Hazel "who was smoking marijuana," and Hazel responded that he did not smoke marijuana. (Id. 18; see also id. 102). Owens then asked Hazel for his driver's license and the paperwork for the SUV. Hazel replied that he did not have a license. (Id. 18). Eventually, the officers realized that there were four other individuals in the SUV, including Luther, Jenkins, and the owner of the SUV, Hall. All five occupants were asked to exit the SUV. The officers recovered two weapons, a .380 caliber hand gun and a .22 caliber revolver. Jenkins and Luther made incriminating statements, both orally and eventually in writing. Jenkins admitted that the .380 was his and Luther admitted that the .22 was his. (Id. 17-25, 28, 31-33, 101-06; Gov't Exs. 1, 2, 4, 5).

B. The Officers' Stated Reasons for Stopping the SUV

Owens testified that he made the decision to stop the SUV because he observed that it had excessively (and illegally) tinted windows and no license plates, front or rear. (Tr. 8, 14, 39-40, 45, 48). Lynch testified that when he first saw the SUV he thought it had illegally tinted windows and no rear plate; he did not notice whether the SUV had a front plate. (Id. 99-100).

In fact, as the Government now essentially concedes, the SUV did not have illegally tinted windows. The front windshield was tinted only to the extent of a six-inch border running across the top, which is permitted under New York law, and the driver's side window was not tinted at all. See N.Y. Veh. & Traf. Law §§ 375(12-a)(b)(1), (2) (McKinney Supp.2004). The center and rear side windows and the rear windshield were tinted, but this tinting was permitted under New York law as well because the SUV had side mirrors. See id. § 375(12-a)(b)(4).

Likewise, the Government now concedes that the SUV had a temporary Delaware plate in the rear. Under New York law, in certain situations, only a rear plate is required. Here, as the SUV was registered in Delaware, only a rear plate was required in Delaware, and the dealer in Delaware issued Hall (the owner of the SUV) only one temporary plate, the SUV was not required to have a front plate. (Tr. 139). See N.Y. Veh. & Traf. Law §§ 402(1), (5) (McKinney Supp.2004).

Hence, the traffic violations that the officers testified they thought they saw did not actually exist. Indeed, both officers testified that they realized, later in the evening of January 18, 2004 or early in the morning of January 19, 2004, after the SUV was brought back to the police precinct, that the front windshield and driver's side window were not illegally tinted and that there was a rear temporary Delaware plate. (Tr. 40-41, 48-49, 55, 57, 62, 112-14).

C. Prior Proceedings

On February 24, 2004, Jenkins and Luther were indicted in this case on one count each of unlawful possession of a firearm after having been convicted of a felony. These suppression motions followed. The Court conducted an evidentiary hearing on June 15, 2004. Owens, Lynch, and Hall testified. The SUV was produced for inspection by the Court, in the street outside the Courthouse (both in the sunlight and in the shade) as well as in the garage inside the Courthouse (where the lighting conditions were closer to what they were at 11:30 p.m. at night on January 18, 2004 on Valentine Avenue in the Bronx).

At the conclusion of the hearing, the Court reserved decision. The parties thereafter submitted post-hearing papers.

DISCUSSION

A. Applicable Law

The Fourth Amendment guarantees "[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. The stop of an automobile, "even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons' within the meaning" of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Accordingly, "such stops must be justified by probable cause or a reasonable suspicion, based on specific and articulable facts, of unlawful conduct." United States v. Scopo, 19 F.3d 777, 781 (2d Cir.1994). Where the stop leads to an arrest, a two-step inquiry is required: whether the stop was supported by "reasonable suspicion," and if so, whether the arrest was supported by probable cause. See United States v. Perea, 986 F.2d 633, 644 (2d Cir.1993) ("an encounter that began as a permissible Terry stop may have ripened into an arrest, which must be supported by probable cause").⁴

Police officers may make a "brief, investigatory stop" when they have a "reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Although "reasonable suspicion" is a "less demanding standard" than probable cause, "at least a minimum level of objective justification" is required, and the officers "must be able to articulate more than an `inchoate and unparticularized suspicion or "hunch"' of criminal activity." Id. at 123-24, 120 S.Ct. 673 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Whether police officers had a reasonable suspicion that criminal activity was afoot is determined by examining the "totality of the...