U.S. v. Mason

• Decision Date: 04 March 2008
• Docket Number: No. 07-CR-0902 (CPS).,07-CR-0902 (CPS).
• Citation: 550 F.Supp.2d 309
• Parties: UNITED STATES of America, Plaintiff, v. Donald MASON, Defendant.
• Court: U.S. District Court — Eastern District of New York

550 F.Supp.2d 309

UNITED STATES of America, Plaintiff, v. Donald MASON, Defendant.

No. 07-CR-0902 (CPS).

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

March 4, 2008.

COPYRIGHT MATERIAL OMITTED

Shreve Ariail, U.S. Attorney's Office, Eastern District of New York, Brooklyn, NY, for Plaintiff.

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

MEMORANDUM OPINION AND ORDER

SIFTON, Senior District Judge.

Defendant Donald Mason (the "defendant") was indicted on December 20, 2007, on one count of knowingly and intentionally possessing a High Standard .357 revolver and ammunition, on November 26, 2007, having previously been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). A superseding indictment, filed January 10, 2008, charged that, on November 26, 2007, defendant (1) did knowingly and intentionally possess with intent to distribute five grams or more of cocaine base, in violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii); (2) did knowingly and intentionally possess a firearm in furtherance of the crime charged in the first count, in violation of 18 U.S.C. § 924(c)(1)(A)(I); and (3) did knowingly and intentionally possess a High Standard .357 revolver, and ammunition, having previously been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Now before the Court is defendant's motion to suppress physical evidence and various statements, which was the subject of a hearing before the undersigned on February 11, 2008. For the reasons stated below, the motion is denied. What follows sets forth the findings of fact and conclusions of law on which this determination is based.

Background

New York Police Department ("NYPD") Officers Mourad Arslanbeck and David Porras (the "Officers") are members of the Manhattan Impact Response Team, a division of the NYPD Housing Bureau. Feb 11, 2008 Hearing Transcript (mistakenly dated Nov. 20, 2003) at 6, 135 (hereinafter "Tr. at ___"). Officers Arslanbeck and Porras, as well as other members of this team, "saturate high-crime public housing areas ... to deter crime [by] flooding the area with a lot of cops. And also, to reinforce quality of life issues such as drinking in public." Tr. at 6. On the night of November 25 and continuing into the early morning of November 26, 2007, the Officers were on foot patrolling the Tilden Housing Development, which includes 265 Livonia Avenue, in Brooklyn, New York.¹ Tr. at 13-14, 16, 136. Officer Porras testified that he had been told by his supervisors that the' Tilden development was a "high-crime area" that had experienced what he described as "a mass of shootings and robberies." Tr. at 66-67.

Officer Porras testified that he had patrolled twenty-five or more public housing developments over the course of his career prior to November 25, 2007 and, during that time, had seen "hundreds" of people entering buildings in such developments. Tr. at 8. He testified that in his experience residents generally enter public housing buildings by using a key and that nonresidents, use a dial pad to ring the apartment of the person they are visiting. They announce themselves through an intercom to anyone who responds from the apartment, and then get "buzzed in" by the occupant of the apartment in order to enter the building. Tr. at 9. A panel next to the door at 265 Livonia Avenue in fact lists the apartments in the building and a corresponding four digit code to be entered on the dial pad to reach that apartment via the intercom. Tr. at 73-74; Gov't Ex. 3; Def. Ex. D.²

Officer Porras testified that "on rare occasions" he had also seen New York City Housing Authority employees or emergency workers gain access to public housing buildings employing pass codes entered into the same dial pad used to dial specific apartments. Tr. 9-10. Officer Arslanbeck also testified that he, too, was aware of this use of pass codes and that, in his experience, each building has a separate code. Tr. 138-39.³

The Officers entered 265 Livonia Avenue twice during their patrol. As the Officers are not issued either keys or pass codes, Tr. at 11, the Officers gained entrance to the building the first time by "piggybacking," entering as another person entered or left the building. Tr. at 29. The second time, the Officers were let in by an older gentleman who used a four digit pass code to open the door. Tr. at 25-26; 140-142. The Officers did not inquire whether the gentleman, who was standing outside the entrance but did not attempt to enter the building after he had let the Officers in, lived in the building or how he knew the code. See Tr. at 142.

A somewhat worse for wear sign in the lobby of 265 Livonia Avenue, posted above the mailboxes on the left side of the lobby, read in bold but delapidated lettering: "LOITERING AND TRESPASSING IN LOBB[Y, ROO]F, HALLWAY AND STAIRS NOT PERMITTED VIOLATOR[S] ARE SUBJECT TO ARREST AND PROSECUTION BY THE [NEW YORK CITY HOUSING AUTHORITY] POLICE DEPARTMENT." Tr. 34-25, 97; Gov't. Ex. 10. The chief investigator for the defendant credibly testified that he did not see any "No Trespassing" signs posted outside of 265 Livonia Avenue. Tr. at 167; see also Def. Exs. C, B, L, K, and M;⁴ Tr. at 162.

Following their second entrance into 265 Livonia Avenue, at approximately 1:55 a.m. on the morning on November 26, 2007, the Officers were standing in the lobby, positioned behind a column. Officer Porras had his back to the door and Officer Arslanbeck was in front of him, facing the door, but also at least partially concealed by the pillar. Only Officer Arslanbeck could see the door. Tr. at 90. The door to the building was made of metal, id., with eighteen portholes, of which all but the three at the top and the three at the bottom were covered. Tr. at 91. Officer Porras testified both he and Officer Arslanbeck were "paying attention to how people [were] entering the building, whether with a key or piggybacking behind somebody." Tr. at 30.

At approximately 1:55 a.m., Officer Arslanbeck saw, through the bottom portholes of the door, an unidentified person approach. Tr. at 143. He also testified that he heard someone punching in numbers on the dial pad, "followed by a little beep and then ... the magnets releasing from each other and the door opening." Tr. at 143-44. Officer Porras testified that he heard four beeps on the dial pad, the door open, and footsteps enter the building. Tr. at 40. Neither Officer heard a key in the lock, a buzzer, or any voice on an intercom. Tr. at 40, 144. Defendant then entered the building. Tr. at 41-42, 144.

The Officers came around the column and approached the defendant. Tr. at 42, 148. When they were a few feet away from the defendant, Officer Porras remarked to defendant that he did not enter with a key. Defendant did not respond. Tr. at 43-4, 47, 103-04, 112, 148.⁵ Office Porras then asked defendant if defendant were a resident of the building, to which the defendant responded that he was not. Tr. 44, 99, 148. Officer Porras next requested identification from the defendant, which the defendant produced. Tr. at 45, 149. The Officers determined from the identification that defendant lived at 305 Livonia Avenue, a nearby building in the Tilden development. Tr. at 45, 100.

Officer Porras next asked where the defendant was going. Defendant stated that he was going to the "fourth floor." Tr. at 46; see also Tr. at 149. After this question, Officer Porras observed defendant "lift[]," "pick[]," or "pull" up his jeans by the seams just below the pockets. Tr. 47-48, 112-13, 151.⁶

Officer Porras' practice in this situation was to escort defendant to wherever he was headed to verify if he was a guest. Tr. 12-13, 48. Officer Porras testified that he then asked defendant "if he had anything on him that might hurt my partner or I, if he had any weapons ... I asked him if he had any weapons that might hurt my partner or I[sic]." Tr. at 48-49. Officer Arslanbeck recalled that Officer Porras asked the defendant if he was "carrying any weapons on him." Tr. at 149. Both Officers recalled that, following this question, the defendant's "attitude or demeanor totally changed." Tr. at 149. According to Officer Arslanbeck, defendant "got up, a little more rowdy, started waving his arms, speaking in a higher voice, cursing." Tr. at 149. Officer Porras similarly testified that defendant "began to act hostile," "was mad" and "start cursing." Tr. at 49, 113. He also testified that defendant's "arms went up and his stance widened." Tr. 114.⁷ Both Officers testified that they attempted to calm defendant down. Tr. at 49, 149.

At this point, defendant "ran towards the door using his body to shove [Officer Porras] in the shoulder" and "pushed through Officer Porras." Tr. at 49, 149.⁸ The Officers chased defendant and caught him before he reached the door. There was a brief scuffle, during the course of which defendant's jacket came off and his shirt lifted up. Tr. at 50, 149. During the scuffle, Officer Arslanbeck saw a firearm tucked into defendant's waistband and Officer Porras saw "what looked like the butt of a handgun." Tr. at 51, 149-50. Officer Porras used mace on the defendant, and defendant stopped resisting. Tr. 51.

Seconds after defendant was handcuffed, defendant said, "I'm holding." Tr. at 54, 151. At this point, defendant was handcuffed on the ground, on his stomach. Officer Porras rolled defendant to his side, reached into the front of his waistband, and recovered the firearm, which Officer Porras testified was a black .357 magnum, Sentinel MK III, from defendant. Tr. at 54, 56, 150. Neither Officer gave defendant his Miranda warnings at this point or later. Tr. 59, 155.⁹ Defendant asked for some water, presumably because he had been sprayed in the face with mace, and stated "I'm going away for a long time." Tr. 57, 155.

After this exchange, Officer Arslanbeck searched defendant's jacket and found a black plastic bag...