United States v. Janvier
| Decision Date | 26 July 2011 |
| Docket Number | Crim. Action No. 10cr10029–NG. |
| Citation | 798 F.Supp.2d 362 |
| Parties | UNITED STATES of America, Plaintiff, v. Jean JANVIER, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
OPINION TEXT STARTS HERE
Behzad Mirhashem, Federal Public Defender Office, Boston, MA, for Defendant.
John A. Wortmann, Jr., United States Attorney's Office, Boston, MA, for Plaintiff.
MEMORANDUM AND ORDER RE: DEFENDANT'S MOTION TO SUPPRESS
The Memorandum and Order of July 11, 2011, is hereby amended and replaced by this Memorandum and Order due to formatting and typographical errors. Every other aspect of the Memorandum remains intact.
Jean Janvier (“Janvier”) was arrested following an anonymous 911 call about a man with a gun. That call, together with Janvier's behavior when the police arrived at his home, 17 Gleason Street, justified a stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), according to the police. I disagree.
The 911 information and the officer's observations supposedly led him to “run after” Janvier on the steps leading to his apartment, then reach out and touch a gun in Janvier's waistband. The fruits of the stop led to Janvier's arrest for unlawful possession of a firearm, a firearm with altered serial numbers, and unlawful possession of ammunition.
The problem is that the anonymous caller's description of “a man with a gun” did not match Janvier's. The location identified in the call, at least as an initial matter, covered a number of houses on Gleason Street, Dorchester, not merely Janvier's. And when the unmarked but very obvious police car arrived, Janvier, who was standing on the small porch of his own home, simply turned to go inside. Nothing about the call should have focused suspicion on him; and nothing about his behavior at the scene justified the Terry stop.
Defendant filed a motion to suppress the fruits of the search. The government opposed; I held a hearing over two days, with multiple exhibits. While I greatly appreciate the need to put an end to gun violence in Boston, and I understand that the area in which Janvier's home was located was a “high crime area,” there are rules—constitutional rules—that define how officials must go about their investigations. Following the constitution makes for less efficient law enforcement, to be sure, but, in the final analysis, far more legitimate. Defendant's Motion to Suppress (document # 17) is GRANTED.
I. FACTSA. The 911 Call
Exhibit 1 to the December 29, 2010, suppression hearing is the 911 call tape, which the Court has listened to several times. Some parts are difficult to understand. What follows is an account of the call, reflecting a consensus account of its contents.
At about 9:00 p.m. on October 25, 2009, the Boston Police Department (“BPD”) received a call over its emergency 911 system. The caller was a woman, who, after being advised that the call was being recorded, was asked for the location of her emergency. She said it was Gleason Street. When asked for further details, the caller said it was between “17, 18, 19 and 23.” Eventually she reported that the man was “standin' up on 18 Gleason Street.”
The caller reported that the man was “harassing” and that he was “trying to find 18 Gleason Street.” She indicated that the man had a gun, that he “had it in his pocket, then he threw it, then he put it in the back of his pants.” When asked which back pocket the gun was in, the caller told the operator that the man had the gun in “his waistband.”
The caller described the man as follows: He was black, less than 30 (although she later said “like 26, 27, I'm not sure.”). He was wearing black jeans, a white t-shirt, black hoodie sweater, and black sneakers. She described his height as “maybe 5'6?, 5'7?” and weight, “umm he's like, I don't know about, maybe ... maybe 210,” and that he had “low cut hair.”
The caller then complained to the operator about the questions she was being asked. When asked for more details about the man's appearance, the caller hung up.1 She never gave her name or address. She never expressed a willingness to be called back. While the testimony suggested that some time later—after Janvier's arrest—the BPD was able to identify the subscriber of the cell phone from which the call was made, no attempt was made to get in touch with her.
After receiving the report, the 911 operator sent out the message, dispatching police to Gleason Street. Sgt. James Tarantino (“Tarantino”) responded from an unmarked gang unit cruiser, which he operated along with Gang Unit Officer Jack Conway (“Conway”) and Massachusetts State Trooper Steve Johnson (“Johnson”).
The radio operator advised these officers that, “Guys, its black male, black hoodie, white shirt, black jeans, black sneakers, about 210, he has the gun in the back of his waistband.” She then added that the man was “about 5'7?.”
Janvier did not meet the description. The weight, the sneakers, the pants, and the hoodie did not match. He was wearing blue jeans and a dark jacket, but had on a white sweater with a hood worn over a white shirt with a large design in the center. He wore white sneakers, and had on a “big black puffy coat” like a bomber jacket. The height and race of the man was a closer match; Janvier was 5'8?, Haitian, and 24 years old.
But the most significant detail that did not match Janvier was his build: He was considerably slighter than the description by 70 pounds. He weighed 140 pounds—not 210—which even the officer characterized as a “slim” build. Boston Police Dep't Booking Form and Incident Report, 1 (document # 19–3) [hereinafter “Police Report”]. As the officer noted, the details that did match could not have been more generic—“dark top, black man in his 20's.” Hr'g Day 1 Tr. 64:3–7.
The police saw no one else on Gleason Street but the three men outside of 17, not 18, Gleason Street.
B. The Setting
The setting of the stop was significant, so significant that the defense sought to have the Court take a view of the area. When the Court denied that motion, the defendant prepared a video,2 which I found to be highly probative.
This was a residential area. Number 17 Gleason Street was a two family home with a small porch. Janvier lived there with his parent and sisters. The house was surrounded by a metal fence with a latched gate. There was a street light across the street, but the officer who made the stop could not recall if there was any light on the porch. Two of Janvier's acquaintances were standing in the driveway when the police arrived. At the entrance to the house, one short stairway lead downstairs to one apartment; another lead upstairs to Janvier's apartment. The stairway leading to Janvier's apartment had just four steps. A young man like Janvier could get there in seconds from the front door.
C. High Crime Area
As they responded to the call, Conway and his partners knew that this was an area frequented by members of the Greenwood Street gang. They also knew there had been two firearm incidents in the ten days before.3 Police Report, 2. Indeed, the data generated by the BPD suggested this was a “high crime area.” Hr'g Day 1 Tr. 32:8–18.
The cruiser was a silver Crown Victoria, which, though unmarked, was easily identified as a police vehicle. Moreover, the officers were wearing their badges around their necks and at least Conway was dressed in a black long sleeved t-shirt that said “Boston Police” on the front, and “Gang Unit” on the back.
D. The Stop
Conway testified that when they arrived at 17 Gleason Street, Janvier was on the porch of his home, talking to his two friends who were in the driveway. 4 The officers did not recognize Janvier; they did recognize one of the individuals in the driveway. When Conway was specifically asked if any of the three men matched the 911 description he was equivocal: “They all kind of did with the dark clothing.” 5 Hr'g Day 1 Tr. 43:17. Conway spoke to the two in the driveway; “What's up guys?” he said. Hr'g Day 1 Tr. 46:6–7.
Conway ran after Janvier into the house at 17 Gleason Street, because of Janvier's behavior when the police arrived. Janvier, Conway testified, was trying to hide the gun, was looking furtively from “left to right” and was “fleeing” into his home. But Conway's account of Janvier's behavior on the porch shifted during the suppression hearing, differed from his previous reports, and from an earlier hearing.
During direct examination, Conway testified that, even though Janvier was talking to his two friends who were in front of him—necessarily facing them, with his back to his house—Janvier's “back was somewhat exposed.” Hr'g Day 1 Tr. 43:11–13.6 Later, he acknowledged that Janvier's back was not visible to him when he arrived. Indeed, given Janvier's position on the porch, he did not have to do anything evasive to keep his back from view when the police arrived. Hr'g Day 1 Tr. 74:21–25.7 Moreover, Janvier was wearing a “puffy jacket” the very jacket that the government later claimed justified the anonymous caller making a 70–pound mistake in identifying him. That jacket, as the picture of Janvier suggests, fully covered his back, including his waistband. Hr'g Day 1 Tr. 52:22, Ex. 4A.
Conway also reported that Janvier started looking left to right and appeared “nervous,” not an unreasonable response, if I credit the testimony, for both the innocent and the guilty when police officers arrive at your doorstep. Conway then “got to the fence and put [his] hands on it” at which point Janvier took another step closer to the doorway, while keeping his back hidden from view. Hr'g Day 1 Tr. 45:8–9, 12. On cross-examination, Conway acknowledged that Janvier actually turned fully to go inside, with his back directly in view. Hr'g Day 1 Tr. 84:7–10. Without any more information, Conway said that he “believed the gentleman on the porch had the firearm,” and so he pushed open the gate and ran through. Hr'g Day 1 Tr. 46:14–16. In fact, while Conway may have had a hunch about...
To continue reading
Request your trial