United States v. Davis

• Decision Date: 01 July 2015
• Docket Number: No. 14–CR–0567 (MKB).,14–CR–0567 (MKB).
• Citation: 111 F.Supp.3d 323
• Parties: UNITED STATES of America, v. Clive DAVIS, Defendant.
• Court: U.S. District Court — Eastern District of New York

111 F.Supp.3d 323

UNITED STATES of America,

v.Clive DAVIS, Defendant.

No. 14–CR–0567 (MKB).

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

Signed July 1, 2015.

Craig R. Heeren, United States Attorney's Office, Brooklyn, NY, for Plaintiff.

Michael K. Schneider, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge:

Defendant Clive Davis, also known as "Cliver Davis," "Link Davis," "Olive Davis, Jr.," and "Clive Davis, Jr.," is charged in a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e) and 3531 et seq. On February 19, 2015, Defendant moved to suppress physical evidence acquired by law enforcement officers after a search of his person on June 6, 2014. The Court held a suppression hearing on May 15, 2015. For the reasons discussed below, the Court denies Defendant's motion.

I. Background

a. Facts alleged in the Complaint

According to the criminal complaint filed on September 26, 2014, Defendant has twice been convicted of a crime punishable by a term of more than one year of imprisonment. (Compl. ¶ 8.) On September 23, 1998, he was convicted of attempted robbery in the third degree in Kings County Supreme Court, in violation of section 160.05 of the New York Penal Law. (Id. ) On September 10, 2010, Defendant was convicted of conspiracy to possess with intent to distribute cocaine base in the District of Connecticut, in violation of 21 U.S.C. § 846. (Id. )

On or about June 6, 2014, at approximately 12:38 AM, two uniformed New York Police Department ("NYPD") officers, Fink and Baldofsky, were on foot patrol in Brooklyn. (Id. ¶ 2.) At the southeast Corner of Flatbush Avenue and Clarendon Road, Fink and Baldofsky observed an individual wearing blue jeans and a black t-shirt with a patterned design carrying an open, green beer bottle. (Id. ¶ 3.) The man, later identified as Defendant, was walking toward the officers on Clarendon Road when he threw the open bottle onto the ground. (Id. ) After observing this, the officers approached Defendant. (Id. ¶ 4.) Defendant attempted to push past Fink and made contact with him, at which point Fink attempted to stop Defendant. (Id. ) Defendant "attempted to resist Fink, and flailed his arms to avoid being stopped." (Id. )

At this time, Baldofsky approached Defendant from behind and observed a large bulge in Defendant's back, near the waistband of his pants. (Id. ¶ 5.) Upon lifting Defendant's shirt, Baldofsky observed a gun, which he recovered and secured. (Id. ) The gun was later identified as a black nine millimeter ("9MM") M11 Cobray semiautomatic handgun, which are manufactured outside of the State of New York. (Id. ¶¶ 5–6.) Defendant was handcuffed and patted down, at which point the officers discovered an ammunition clip containing twenty-five 9MM rounds in Defendant's left front pocket. (Id. ¶ 6.)

b. Motion to suppress

On February 19, 2015, Defendant moved to suppress the physical evidence acquired by law enforcement officers on June 6, 2014. (Def. Mot. to Suppress, Docket Entry No. 11.) Defendant requested an evidentiary hearing. (Decl. of Michael K. Schneider in Supp. of Def. Mot. to Suppress ("Schneider Decl.") 4, Docket Entry No. 11–1.) Defendant argued that the evidence obtained during the June 6, 2014 encounter with the NYPD officers was the product of an illegal seizure and subsequent search of Defendant's person, which were not conducted pursuant to a warrant or justified by an "exception to the warrant requirement." (Schneider Decl. 3–4.) In an affirmation submitted on or about March 25, 2015, in support of his motion to suppress, Defendant states that in the early morning hours of June 6, 2014, he was walking on a public sidewalk in Brooklyn. (Davis Aff. ¶ 2, Docket Entry No. 13–1.) As he was walking, police officers approached him and told him to stop. (Id. ¶¶ 1–2.) Defendant continued walking, and the police officers "chased" him and "forced [him] to the ground." (Id. ¶¶ 4–5.) While on the ground, the police officers searched the Defendant's person and found a gun in the waistband of his pants, and a loaded magazine of ammunition in his pants pocket. (Id. ¶ 6.)

Prior to the submission of Defendant's affidavit, the government sought denial of Defendant's motion without an evidentiary hearing, arguing that Defendant did not submit an affidavit based on personal knowledge in support of the motion, failing to create a factual dispute to necessitate a hearing. (Gov. Mem. in Opp'n to Mot. to Suppress ("Opp'n Mem.") 4–8.) The government further argues that the motion should be denied because the undisputed evidence establishes that (1) there was probable cause to arrest Defendant, and search Defendant incident to that arrest, (a) for carrying an open container of alcohol and (b) for littering, and (2) even if there was no probable cause to arrest Defendant, the officers had reasonable suspicion to stop Defendant and perform a protective pat-down search. (Opp'n Mem. 5–15.)

c. May 15, 2015 suppression hearing

On May 15, 2015, the Court heard testimony from police officer Michael Baldofsky and former police officer Michael Fink, and heard oral argument on the motion. Except for some minor inconsistencies in the testimony, discussed below, the Court finds that Baldofsky and Fink testified credibly as to their recollection of the events occurring between the evening of June 5, 2014 and the early morning hours of June 6, 2014.¹ Based on the evidence presented at the hearing, the Court makes the following findings of fact.

On the evening of June 5, 2014, into the early morning hours of June 6, 2014, NYPD police officers Baldofsky and Fink were assigned to the "impact unit" in the 70th Precinct in Brooklyn, New York. (Tr. of Suppression Hr'g held on May 15, 2015 ("Tr.") 4:24–5:4, 50:5–12.) Their shift began at approximately 5:30 PM on June 5, 2014, and continued to approximately 2:05 AM on June 6, 2014. (Tr. 6:2–4, 51:3–9.) As part of the "impact unit," Baldofsky and Fink were on foot patrol, in full uniform, in the area surrounding the intersection of Flatbush Avenue and Clarendon Road in Brooklyn, New York, and were tasked with addressing "quality of life issues." (Tr. 6:8–7:2, 51:10–21.) That night, it was clear and warm, and the officers spent approximately four hours patrolling the area, walking around the block and speaking to individuals whom they encountered. (Tr. 10:2–4, 53:7–8, 72:12–18.) Neither officer encountered significant vehicular traffic or foot traffic that evening. (Tr. 37:10–14, 65:12–18.)

At approximately 12:40 AM on June 6, 2014, Baldofsky and Fink were standing on the southeast corner of the Intersection, an area lit by an overhead streetlamp and some lighting at a construction site across the street. (Tr. 8:6–23, 10:7–14, 31:2–23, 40:3–4, 54:2–3.) The officers were both standing parallel to the buildings on Clarendon Road, facing to the north, when they noticed Defendant walking west on Clarendon Road in their direction. (Tr. 64:6–22.) Defendant was wearing a multicolored shirt and jeans, and was holding what appeared to both officers to be a Heineken beer bottle in his hand.² (Tr. 10:17–11:2, 54:19–55:1.) The bottle was not obscured by a paper bag, and Baldofsky testified that he was able to see that the bottle was open.³ (Tr. 11:19–12:3, 55:2–10.) Neither officer witnessed Defendant drink from the bottle at any time. (Tr. 38:2–5, 62:13–20.) Baldofsky and Fink witnessed Defendant take a few more steps toward them and lightly toss or drop the bottle a few feet away from him into a "planter"—a square cut-out in the sidewalk, close to the road, where a tree was growing. (Tr. 12:5–19, 40:12–41:2, 55:11–21.) The bottle landed, intact, in the dirt surrounding the tree, and Baldofsky witnessed liquid emptying from the bottle.⁴ (Tr. 12:30–21, 44:3–11, 56:9–13.) Defendant continued to walk toward the officers and the intersection with Flatbush Avenue. (Tr. 12:22–25, 41:7–9, 56:14–17.)

Fink stepped forward and turned toward Defendant, blocking Defendant's path, while Baldofsky remained on Fink's right side, with his body turned toward the opposite side of Clarendon Road. (Tr. 13:19–25, 41:14–18, 69:10–18.) Fink said something to Defendant like "stop" or "what's going on," though he could not recall what exactly he said. (Tr. 41:23–42:2, 69:19–70:6.) Defendant continued walking, brushing

against or otherwise making physical contact with Fink, who put his hands up to grab Defendant by the arm or shoulder. (Tr. 42:12–43:7, 57:6–20, 70:5–19.) Defendant turned away from Fink, who noticed a bulge at the waistband of Defendant's pants. (Tr. 57:19–20, 70:20–71:5.) Fink hit the bulge with his hand, and determined that it felt metallic and sounded like metal. (Tr. 59:24–58:9, 71:6–10.) Fink then said "gun" and grabbed Defendant by the shoulders, at which point Baldofsky noted the bulge in Defendant's waistband, as well.⁵ (Tr. 14:11–14, 43:8–20, 71:25–72:3.) Fink held Defendant while Baldofsky, believing the bulge was a firearm, lifted up Defendant's shirt, saw that there was a firearm in his waistband, removed it, and placed it on the sidewalk out of Defendant's reach. (Tr. 14:15–15:1, 44:21–45:3, 58:13–14, 70:10–11.) At the same time, Fink pulled Defendant to the ground and restrained him so he could not get away. (Tr. 15:2–6, 58:13–18.) Fink called for backup on his radio and both officers held Defendant with his hands behind his back until backup arrived approximately forty-five seconds to a minute later. (Tr. 15:9–15, 58:17–3.) Defendant was then handcuffed and placed under arrest and Baldofsky and one or two other police officers searched him. (Tr. 15:16–24, 59:4–6.) During the search, the searching officers found a loaded magazine in Defendant's pants pocket. (Tr. 15:22–24, 33:17–22.)

Defendant was taken to the 70th precinct station house, and Baldofsky remained on the scene to gather pictures of the event and to preserve the evidence. (Tr....