United States v. Diaz

• Decision Date: 14 August 2015
• Docket Number: No. 15–CR–272 (JMF).,15–CR–272 (JMF).
• Citation: 122 F.Supp.3d 165
• Parties: UNITED STATES of America, v. Jose DIAZ, Defendant.
• Court: U.S. District Court — Southern District of New York

122 F.Supp.3d 165

UNITED STATES of America,

v.Jose DIAZ, Defendant.

No. 15–CR–272 (JMF).

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

Signed Aug. 14, 2015.

Robert Wood Allen, U.S. Attorney's Office, New York, NY, for Plaintiff.

Jonathan Andrew Marvinny, Federal Defenders of New York Inc., New York, NY, for Defendant.

OPINION AND ORDER

JESSE M. FURMAN, District Judge:

Defendant Jose Diaz, charged with one count of being a felon in possession of a firearm in violation of Title 18, United States Code, Section 922(g) (Docket No. 6), was arrested after a police officer encountered him drinking alcohol in the stairwell of an apartment building and a search revealed that he was in possession of a firearm. He now moves to suppress the firearm on the ground that it was obtained in violation of his rights under the Fourth Amendment to the United States Constitution. (Docket No. 9). Diaz's motion presents two difficult legal questions: first, whether the stairwell in which he was drinking qualifies as a "public place" within the meaning of New York City's "open-container" law, which generally prohibits drinking alcohol in public places; and second, whether, in light of Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), a search is reasonable under the Fourth Amendment if a police officer has probable cause to arrest a person but elects to issue a summons or citation instead of effecting an arrest and, but for the fruits of search itself, would not have arrested the person.

Diaz has strong arguments on both fronts, but his motion ultimately fails. First, applying recent Supreme Court precedent, the Court concludes that it need not decide whether the stairwell at issue is a "public place" within the meaning of New York City's open-container law—an issue upon which New York's own courts are divided. That is because, even assuming arguendo that the police officer was mistaken in believing that the stairwell qualified as a "public place" for purposes of the open-container law, that belief was objectively reasonable and provided her with probable cause to arrest Diaz. Second, applying binding Second Circuit precedent, the Court holds that whether the officer intended to arrest Diaz at the time of the search is irrelevant and that the search was lawful because the officer had probable cause to arrest Diaz and the search was substantially contemporaneous with the arrest. The Second Circuit's precedent is certainly in tension, if not conflict, with the Supreme Court's decision in Knowles. But it is the prerogative of the Second Circuit (or the Supreme Court), not this Court, to decide if it remains good law in light of Knowles. Ultimately, notwithstanding the strong arguments in Diaz's favor, the Court concludes that it is bound by the Second Circuit's precedent. Accordingly, and for the reasons stated below, Diaz's motion must be and is denied.

BACKGROUND

As noted, Diaz is charged in a one-count indictment with possessing a firearm having previously been convicted of a felony after a police officer's search revealed that he was carrying a gun. On June 19, 2015, he moved to suppress the evidence seized as a result of the search—including the gun—on the ground that it was obtained in violation of the Fourth Amendment. (Docket No. 9). Disputing several facts alleged by the Government—most notably, that he was holding a cup and drinking alcohol—Diaz argued that the officer could not lawfully search him incident to his arrest because there was no probable cause to arrest him for a crime. (Jose Diaz's Mem. Law Supp. His Mot. To Suppress Physical Ev. (Docket No. 10) ("Diaz Mem.") 2–4; id., Ex. D ("Diaz Aff.")). The Government opposed Diaz's motion, but conceded the need for an evidentiary hearing. (Gov't Mem. Law Opp. Def. Jose Diaz's Mot. To Suppress Physical Ev. & Statements (Docket No. 11) ("Gov't Mem.") 2). Accordingly, on July 24, 2015, the Court held a hearing at which the Government called as witnesses the two police officers involved in the incident, Officers Chris Aybar and Jose Espinal, and Diaz testified on his own behalf. (July 24, 2015 Tr. (Docket No. 20) ("Tr.") 3, 49, 78). The Court finds that the Officers largely testified credibly and, with one prominent exception discussed below, therefore credits their version of events. By contrast, the Court does not find that Diaz's testimony was credible to the extent that it conflicted—as it did significantly—with the Officers' testimony. In light of those credibility determinations, the Court makes the following findings of fact.

On the night of March 21, 2014, Officers Aybar and Espinal were conducting a foot patrol in the 42nd police precinct in the Bronx, New York. (Tr. 3–4, 78–79). At some point late that night, the Officers entered 584 East 167th Street, a four- or five-story apartment building, to conduct a "vertical" patrol as part of the New York City Police Department's "Clean Halls" program. (Tr. 4–5, 20, 79; see also Jose Diaz's Post–Hrg. Mem. Law Supp. His Mot. To Suppress Physical Ev. (Docket No. 18) ("Diaz Supp. Mem.") 9 (asserting that the apartment building had twelve units, not fifteen as Diaz had testified at the suppression hearing)). A "vertical" patrol is one in which the Officers move, floor by floor, through a building, checking for trespassing or other illegal activity. (Tr. 4–5). See generally United States v. Pitre, No. 05–CR–78, 2006 WL 1582086, at *1 (S.D.N.Y. June 6, 2006) (describing the process of conducting a vertical). As Officer Aybar—who has been a police officer for approximately a year and a half—explained it, the Clean Halls program is "when management from the building want officers to go inside the building and look for any trespassing or any violations occurring inside the building." (Tr. 3, 5, 20). See generally People v. Powell, 180 Misc.2d 627, 691 N.Y.S.2d 263, 265 (Sup.Ct.1999) (describing the Clean Halls program).

The Officers gained entry to the building through the front door, which was propped open. (Tr. 5, 22). Immediately thereafter, the Officers detected "an odor of marijuana." (Tr. 5). They then proceeded up the stairs to the third-floor landing, a "small area" where they saw three men: Diaz, Joshua Knox, and Collin Maloney. (Tr. 6–8, 79, 82; see also Gov't Ex. ("GX") 1; Diaz Supp. Mem. 8). Knox was on the landing, leaning against a wall while Diaz and Maloney were seated on the stairs going up to the fourth floor. (Tr. 8, 25). Officer Aybar observed all three men holding red Solo—that is, opaque plastic—cups; on the floor, near Diaz, she observed a partially empty New Amsterdam peach vodka bottle. (Tr. 9–12, 14, 26, 30, 81; GX 2). In addition, Knox was holding both a lit marijuana cigarette and a box with what turned out to be eleven "roaches"—that is, the remains of other marijuana cigarettes. (Tr. 14, 23). Officer Aybar instructed all three men to stand against the wall, which they did, apparently without incident. (Tr. 12, 13, 31, 58–59, 82). As she approached Diaz, she detected "a strong odor of alcohol." (Tr. 12, 17, 27–29). In addition, she examined the cup that Diaz had been holding, and observed that it held a small amount of clear liquid that also smelled like alcohol. (Tr. 28). At that point, Officer Aybar intended to issue Diaz a summons for violating New York City's open-container law, which was her uniform practice in such situations. (Tr. 18, 32–33). As she explicitly testified, she had no intention of arresting him. (Tr. 32–33).

When Diaz was by the wall, Officer Aybar asked him for identification. (Tr. 12, 17, 32, 41–42). In response to her request, Diaz began fumbling in the pockets of the jacket he was wearing, as if to retrieve something (albeit not, in Officer Aybar's view, his identification); he also touched, or rearranged, his waistband. (Tr. 17, 38–39, 41–42; see also Tr. 79–80). "[F]eel[ing]" unsafe, Officer Aybar immediately proceeded to "frisk" Diaz and discovered in the pocket of his jacket a loaded .380 caliber Tauras handgun. (Tr. 19, 42). At that point, Officer Aybar arrested Diaz for unlawful possession of a firearm. (Tr. 33). Later, at the precinct, she also gave him a summons for violating the open-container law. (Tr. 15, 33; GX 5A; Gov't Mem. 3). On the summons, Officer Aybar recorded that Diaz had said "I was just drinking." (Diaz Mem., Ex. C (summons)). At the hearing, she reaffirmed that he had made that statement, but she did not recall when he had done so. (Tr. 28–29).¹

As noted, the Court does decline to credit Officer Aybar's testimony in one critical respect. After the Government's redirect examination, in response to additional questioning by the Court, Officer Aybar testified that Diaz "refused to give" his identification to her when asked, telling her that "he didn't have an ID." (Tr. 42–43). That testimony was potentially significant because Officer Aybar had earlier testified that in the event someone who had committed an open-container violation did not have identification, she "would have to" arrest him or her "and verify who they were." (Tr. 18–19; see also Tr. 43). The Court, however, is not prepared to find that Diaz refused to provide identification.² First, Officer Aybar did not mention Diaz's alleged refusal until the Court's questions. That is, she did not mention it in her state grand jury testimony, which took place only days after the incident; she did not mention it in any of her meetings with either the state prosecutor or the Assistant United States Attorney; and she did not mention it in her testimony on direct examination, cross-examination, and redirect, despite having testified in detail about the (brief) encounter and being asked "what, if anything, in total, did Mr. Diaz say?" (Tr. 28, 44–47). Even assuming (as Officer Aybar claims (Tr. 44, 47–48)) that she was never asked a question that specifically called for that information, the failure to disclose such an obviously significant statement by Diaz is hard to fathom. Second, although Officer...