U.S. v. Scopo

• Decision Date: 21 March 1994
• Docket Number: D,No. 168,168
• Citation: 19 F.3d 777
• Parties: UNITED STATES of America, Appellant, v. Ralph SCOPO, Jr., Defendant-Appellee. ocket 93-1201.
• Court: U.S. Court of Appeals — Second Circuit

Page 777

19 F.3d 777

62 USLW 2638

UNITED STATES of America, Appellant, v. Ralph SCOPO, Jr., Defendant-Appellee.

No. 168, Docket 93-1201.

United States Court of Appeals Second Circuit.

Argued Sept. 10, 1993.

Decided March 21, 1994.

Andrew Weissmann, Asst. U.S. Atty., Brooklyn, NY (Mary Jo White, U.S. Atty. for the Eastern District of New York, David C. James, Asst. U.S. Atty., of counsel), for appellant.

Steven R. Kartagener, New York City (Kartagener & Stavis, New York City, James J. DiPietro, Aronne & DiPietro, Brooklyn, NY, of counsel), for defendant-appellee.

Before: NEWMAN, Chief Judge, PIERCE and MINER, Circuit Judges.

PIERCE, Circuit Judge:

On February 11, 1992, defendant-appellee Ralph Scopo, Jr., was indicated for the possession of a firearm with the manufacturer's serial number removed, obliterated or altered and which had been shipped and transported in interstate commerce, in violation of 18 U.S.C. Sec. 922(k) (1988 & Supp. IV 1992), based upon his possession of a fully loaded .38-caliber pistol in the backseat of his car discovered in a January 17, 1992 search of the car incident to a traffic stop. On July 2, 1992, a suppression hearing was held in the United States District Court for the Eastern District of New York (I. Leo Glasser, J.) to determine the admissibility of the firearm seized from Scopo's car, and statements made to the police following his arrest. In an order dated February 19, 1993, the district court granted appellee's motion to suppress the firearm and the statements. The court found that: (1) the stop of Scopo's car, through the pretext of a minor traffic violation, was unjustified because there was no reasonable suspicion that he was engaging in criminal activity; (2) Scopo's arrest was a pretext to search his car for weapons; and (3) therefore the stop and arrest of Scopo violated the fourth amendment. United States v. Scopo, 814 F.Supp. 292 (E.D.N.Y.1993). The Government appeals from this ruling. For the reasons set forth below, we reverse the order of the district court, and remand for further proceedings consistent with this opinion.

BACKGROUND

This case involves an investigation into the criminal activities of the Colombo Family of La Cosa Nostra by a joint task force known as the Colombo Family Strike Force ("CFSF"), which was comprised of Federal Bureau of Investigation Agents ("FBI") and New York City Police Detectives. Scopo was indicted for the possession of a firearm with the manufacturer's serial number removed, obliterated or altered and transported in interstate commerce, in violation of 18 U.S.C. Sec. 922(k), on February 11, 1992. ¹ On April 22, 1992, Scopo moved to suppress the physical evidence found in his vehicle by the police following a traffic stop and arrest on January 17, 1991, and his ensuing statements made to the police. A suppression hearing was held on July 2, 1992. New York City Police Detectives Matthew Higgins and Benjamin Gozun, CFSF members, testified at the hearing as to the events leading to Scopo's arrest. FBI Agent R. Lindley DeVecchio, also a CFSF member, testified as an expert on the Colombo Family.

The facts produced at Scopo's suppression hearing revealed the following: Since November, 1991, the Colombo Family has been engaged in an internal shooting war which has resulted in several fatalities. The internal war was between those loyal to the jailed head of the Colombo Family, Carmine Persico, and those loyal to Victor Orena, the acting head of the Colombo Family. The two factions divided into "hit teams," which travelled in "caravans" of two to four vehicles to carry out both offensive and defensive activities related to the internal feud. See United States v. Orena, 986 F.2d 628, 629 (2d Cir.1993) (for general discussion of Colombo Family War). One of the major goals of the CFSF was to quell the violence of the shooting war within the Colombo Family by taking "guns out of circulation whenever possible."

On the evening of January 17, 1992, while conducting surveillance of a place where members of the "Orena" faction of the Colombo Family were known to meet--the Mill Basin Social Club, located in Brooklyn, N.Y.--Detectives Higgins and Gozun observed two unoccupied cars parked in front of the club--a dark purple 1992 Cadillac (the "Cadillac") and a 1987 Chevrolet Blazer (the "Blazer"). Shortly thereafter, the police observed a group of men leave the club, including Scopo and his brother, Joseph Scopo, Salvatore Micciotta, and Anthony Mesi. Scopo, Joseph Scopo, and Micciotta were known to the CFSF as members of the Colombo Family. ² Mesi was not identified as having an affiliation with the Colombo Family. The men entered separate cars, including the Cadillac and the Blazer, and drove to Joseph Scopo's home, located on East 72nd Street in Brooklyn.

Thereafter the Cadillac, occupied by Scopo, and the Blazer, occupied by Mesi, proceeded to Micciotta's home, located on East 73rd Street in Brooklyn, where they "double-parked on the wrong side of the street, facing the wrong direction." The police observed Mesi leave Micciotta's home with what appeared to be a filled rifle carrying case, and re-enter the Blazer. The Cadillac and the Blazer then proceeded along Flatlands Avenue in Brooklyn, followed by four or five unmarked police cars in which there were altogether nine plainclothes detectives. Twice, the two cars were observed changing lanes without signalling. Since this was in violation of N.Y.Veh. & Traf.Law Sec. 1163(d) (McKinney 1986), the CFSF officers following Scopo and Mesi stopped them for the traffic violations--"boxing" in the Blazer and the Cadillac by positioning their police cars "in front, to the side and the rear" of the cars--as they paused for a red light at an intersection 2.2 miles from the traffic violation. According to Higgins, waiting until the cars had stopped before pulling the drivers over to the side of the road is considered the safest course of action for a nighttime stop. Detectives Higgins and Maggiore approached the driver's side of Scopo's car, and Detective Gozun approached the passenger side. Higgins and Gozun, and possibly Maggiore, had drawn their guns, which was described as a routine practice during a nighttime traffic stop. As Higgins and Gozun approached the Cadillac, they saw Scopo throw an object down inside the car. ³ After Scopo alighted from his car as directed, he was frisked for weapons. Upon pulling forward the passenger seat in the Cadillac to search for the object Scopo was observed throwing down, the police found a fully loaded .38-caliber pistol. According to the police, the butt of the gun had been in "plain view," protruding from a map pouch attached behind the front passenger seat. At that point, Scopo was placed under arrest for the possession of a firearm. Scopo stated upon arrest that "[i]t's not my car, not my gun." The police also uncovered a hunting rifle in Mesi's vehicle. ⁴ Scopo and Mesi were then transported to the 75th precinct, where each was issued a traffic summons for changing lanes without signalling, and Scopo was read his Miranda rights. After being read his rights, Scopo reportedly stated to the police: "F--- those A-B-C men, they promised my father ten and they gave him one hundred and fifteen." Scopo was thereafter indicted on February 11, 1992, for possession of an altered firearm with the manufacturer's serial number removed, obliterated or altered, in violation of 18 U.S.C. Sec. 922(k).

The testimony elicited from the witnesses at Scopo's July 2, 1992 suppression hearing revealed that Scopo's arrest was not based upon any information from informants, covert surveillance, wiretapping, or any specific knowledge or information indicating that Scopo was about to engage in criminal activity. In addition, Detective Higgins testified that a typical police duty, in this type of surveillance, was to "issue traffic summonses."

On April 22, 1992, Scopo moved to suppress both the physical evidence and his statements to the police. In a memorandum and order dated February 19, 1993, the district court granted Scopo's motion, suppressing both the firearm and statements he made in the police precinct. The court found in particular that: (1) the stop of Scopo's car, under the pretext of a minor traffic violation, was not justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny because there was no reasonable suspicion that Scopo was engaging in a criminal activity, Scopo, 814 F.Supp. at 296; and (2) Scopo's arrest was merely a pretext for searching his car for weapons, as evidenced by (a) the testimony of Detective Higgins that the CFSF often utilized the traffic laws to stop suspected Mafia members and confiscate weapons, and (b) the fact that Scopo and Mesi were not stopped until 2.2 miles after the alleged traffic violations. Id. at 304-05. The district court's order was entered on February 23, 1993. The Government filed a timely notice of interlocutory appeal on March 18, 1993, pursuant to 18 U.S.C. Sec. 3731 (1988).

DISCUSSION

The Government, upon appeal, asks this Court to rule on an issue we have hitherto not directly addressed: whether an arrest based upon an observed traffic violation, where the "defendant was also suspected of participating in other criminal activity," violates the fourth amendment because it is based on pretext. The Government argues that the district court erred in granting Scopo's motion because: (1) Scopo's traffic violation created probable cause to stop him; and (2) the district court did not apply a wholly objective standard to analyze the actions of the police officers, which is contrary to established fourth amendment precedent. Scopo contends that the district court was correct because there was no reasonable suspicion to stop him, and because the traffic violation was a pretext to conduct a warrantless search of his car and arrest him. Scopo also argues that the district court's...