United States v. Dekattu
| Decision Date | 08 March 2019 |
| Docket Number | 1:18-CR-0474 |
| Parties | United States v. Ngomani Dekattu, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
On August 30, 2018, the defendant in this case was indicted for unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g). See Indictment ¶ 1, ECF No. 7. On January 11, 2019, the defendant moved in advance of trial to suppress "tangible evidence seized as a result of Mr. Dekattu's stop and arrest, as well as all fruits of the illegal seizure" in addition to "statements obtained in violation of his Fifth Amendment rights." Notice of Mot. ¶ 1, ECF No. 26. The parties briefed the motion, and I held an evidentiary hearing on February 25, 2019. Decision was reserved while the parties submitted supplemental briefing. See Min. Entry, ECF No. 42. The motion is now ripe for disposition. For the following reasons, the defendant's motion is denied.
Shortly before midnight on August 2, 2018, the defendant and his nephew were walking home from the store when they were spotted by members of the New York City Police Department. Tr. 12:17-22, 18:5-8, 19:11-19, 68:22-69:13, 72:6-12, 74:2-9. NYPD Officers Ronnie Rivera and Joseph Bautista were sitting at a red light in an unmarked police car at thenorth side of the intersection of East 52nd Street and Clarkson Avenue in Brooklyn, in an area that Rivera testified was a "high crime area" with a "high" "level of firearms." Tr. 13:25-15:4, 35:1-7, 43:20-22. The officers were present as part of the department's Anti-Crime Team. Tr. 13:1-10. Their vehicle was unmarked, but Rivera, then riding in the passenger seat, was in uniform. Tr. 13:19-15:7. The front windows of the vehicle were not tinted, and Rivera testified that he was able to see across the intersection. Tr. 17:22-24, 24:10-13, 43:23-44:3. NYPD Sergeant Michael Scally and Officer Jose Villafane were behind them in a second car. Tr. 43:4-10.
While the officers waited at the red light, the defendant and his nephew rounded the corner from Clarkson onto East 52nd, heading south. Tr. 20:11-15, 23:3-24:3, 74:2-9.2 According to Rivera, when the defendant turned the corner, he "kept looking back over his shoulder, and he was fixing his waistband area." Tr. 20:11-16.3 At that time, Rivera testified, he and the defendant made eye contact. Tr. 23:8-24:8. Rivera also testified that he looked at the defendant's "waistband area" and there "appeared to be a bulge" there, which Rivera suspected to be "a firearm." Tr. 20:17-25. Rivera estimated that the bulge was about two or three inches long and that the defendant appeared to be adjusting it from the front of his waistband to the side. Tr. 21:21-22:24, 39:12-18.4 At that point, Rivera testified, he andBautista agreed that they would "approach" the defendant "and question him in reference to the bulge." Tr. 42:9-25.
As they walked down East 52nd Street, the defendant and his nephew briefly stopped and interacted with a group of people who were congregated outside of a rowhouse. Tr. 48:5-23, 75:1-76:10. After that interaction, they continued south on East 52nd. Tr. 76:11-15. Meanwhile, Rivera and Bautista had also continued south on East 52nd, in their vehicle. Tr. 23:3-7. Rivera testified that he then got out of the vehicle, approached the defendant on foot, and tried to engage him in conversation. Tr. 23:3-7, 24:19-22.5 The defendant "became irate," however, retorting "that he did not want to talk" and that the officer should "get the fuck away." Tr. 24:19-25:4. The defendant and his nephew then continued to walk down the street. Tr. 25:10-13, 49:8-10, 78:4-6. Rivera got back into the vehicle, and the officers drove to the end of the block, ahead of the defendant. Tr. 25:10-17, 50:5-13.
As the defendant and his nephew neared the intersection of East 52nd Street and Lenox Road, Bautista, Rivera, and Villafane exited their vehicles and approached them. Tr. 26:3-18, 78:4-8; Def. Ex. A-2, at 0:34-0:49; Def. Ex. B, at 0:04-0:24. As the officers and the defendant walked toward each other, one of the officers called out, "where're you guys going?," to which the defendant shouted back, "we live right here; we're going home." Def.Ex. B, at 0:04-0:07. The defendant and Bautista then came to a stop, facing each other. Id. at 0:07-0:11; see also Tr. 27:5. At this point, the defendant was surrounded on three sides by Bautista, Rivera, and a fence. Def. Ex. A-2, at 0:46-0:54; Def. Ex. B, at 0:07-0:11. Bautista asked the defendant where he was coming from, and the defendant responded that he was coming from the store. Def. Ex. B, at 0:10-0:13. The two men then began to speak over each other, and Bautista told the defendant to "breathe" and "calm down." Id. at 0:18-0:24. The defendant then asked whether he could go home. Id. at 0:23-0:27. Bautista replied, "no, I gotta check you out," and reached out and placed his hand on the defendant's wrist. Id. at 0:26-0:33.
At this, the defendant became extremely agitated. Id. at 0:27-0:53; see also Tr. 27:6-8, 56:13-15. He began calling loudly for his sister, and bystanders began to gather. Tr. 51:5-15 60:12-15, 80:21-23; Def. Ex. A-3, at 0:00-0:19; Def. Ex. B, at 0:31-1:05. At this time, Scally walked up behind the defendant. See Def. Ex. A-2, at 0:49-1:25. The defendant continued to shout that the police were stopping him for no reason, and the defendant's sister, who had arrived on the scene, yelled at the defendant to calm down. Def. Ex. B, at 0:42-1:26; see also Tr. 66:1-3. After more back and forth between Bautista and the defendant, Bautista said again, "I'm gonna check you out," to which the defendant initially protested before saying, "I have a pocket knife on me." Def. Ex. B, at 1:25-1:57. The defendant then produced a knife. Tr. 27:15-28:1, 66:20-21, 82:19-83:1; Def. Ex. B, at 1:52-2:00. Rivera testified that he saw the knife and recognized it as a gravity knife. Tr. 27:25-28:11. Once the knife was produced, Scally called "ninety-two," a coded instruction to the officers to arrest the defendant. Tr. 28:12-29:1; Def. Ex. B, at 1:59-2:03. An alert bystander screamed, "they're gonna cuff you," and a struggle ensued. Def. Ex. B, at 2:07-2:33.
According to Rivera, as the officers struggled with the defendant, the officers and the defendant fell to the ground, at which point Rivera heard Scally shout that the defendant had thrown something underneath a parked car. Tr. 30:16-25. Rivera testified that Bautista then looked beneath the car and discovered a firearm. Tr. 31:1-5. According to Rivera, once the officers successfully handcuffed the defendant, he was placed "into a police vehicle immediately." Tr. 52:1-5. Ultimately, Rivera testified, the police recovered a second magazine of ammunition, consistent with the caliber of the firearm found underneath the vehicle, inside a pair of black gloves on the defendant's person. Tr. 31:9-32:6.
United States v. Goines, 604 F. Supp. 2d 533, 539 (E.D.N.Y. 2009) (citation omitted) (first quoting United States v. Delossantos, 536 F.3d 155, 158 (2d Cir. 2008); then quoting United States v. Matlock, 415 U.S. 164, 177 n.14 (1974)).
"Under Terry [v. Ohio, 392 U.S. 1 (1968)], a police officer may briefly detain an individual for questioning if the officer has 'a reasonable suspicion that the individual is, has been, or is about to be engaged in criminal activity." United States v. Padilla, 548 F.3d 179, 186 (2d Cir. 2008) (quoting United States v. Villegas, 928 F.2d 512, 516 (2d Cir. 1991)). The officer's suspicion "must be both reasonable and articulable": "an 'inchoate and unparticularized suspicion or "hunch"' of criminal activity is insufficient." United States v. Muhammad, 463 F.3d 115, 121 (2d Cir. 2006) (quoting Terry, 392 U.S. at 27). That said, "'reasonable suspicion' is a less demandingstandard than probable cause and requires a showing considerably less than preponderance of the evidence." Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
In determining the legality of a Terry stop, the court considers "only 'the facts available to the officer at the moment of the seizure.'" United States v. Bellamy, 592 F. Supp. 2d 308, 315 (E.D.N.Y. 2009) (quoting Terry, 392 U.S. at 21-22). A seizure has occurred at the moment when, "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J.)). Yet "the proper inquiry is not whether each fact considered in isolation denotes unlawful behavior, but whether all the facts taken together support a reasonable suspicion of wrongdoing." Id. at 317 (quoting United States v. Lee, 916 F.2d 814, 820 (2d Cir. 1990)). For "a 'series of acts, each of them perhaps innocent in itself,' can when 'taken together warrant[ ] further investigation.'" Padilla, 548 F.3d at 187 (quoting Terry, 392 U.S. at 22).
Finally, the court must also consider "the degree of restraint imposed on the individual's freedom." United States v. Streifel, 665 F.2d 414, 421 (2d Cir. 1981). For if the officer's actions are "so intrusive as to be tantamount to an arrest," then Terry does not apply, and probable cause is required. United States v. Ceballos, 654 F.2d 177, 182-84 (2d Cir. 1981).
In this case, when Rivera first saw the defendant, the defendant was adjusting his waistband in a manner that suggested to Rivera that the defendant had a firearm hidden there. See Tr. 20:11-25. Then when the defendant saw the officers, he walked away from them while continuing to look back at them over his shoulder. See Tr. 23:8-15. These events transpired near midnight, in...
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