United States v. Levy
| Decision Date | 21 November 2016 |
| Docket Number | 16-CR-270 |
| Citation | 217 F.Supp.3d 643 |
| Parties | UNITED STATES of America v. George LEVY, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Robert L. Capers, United States Attorney, E.D.N.Y., By: Ian Craig Richardson, U.S. Attorney's Office, E.D.N.Y., 271 Cadman Plaza East, Brooklyn, NY 11201, for United States.
Mia Eisner-Grynberg, Federal Defenders of New York, One Pierrepont Plaza, 16th floor, Brooklyn, NY 11201, for Defendant.
Table of Contents
This case arises during a time in which courts are on the edge of a series of subtle decisions regarding the balance required in encouraging effective police action to protect the public while preventing police abuse; respect by the public for sound police work is essential.
Framing the appropriate symmetry is particularly necessary since New York City's stop– and-frisk policy as a method for seizing illegal weapons has been appropriately limited by case law and changes in police tactics. See Floyd v. City of New York , 959 F.Supp.2d 540 (S.D.N.Y. 2013). This case represents a classic illustration of the current tension between police officers who are carrying out their duty to prevent crime and members of communities who may have experienced police misconduct.
In this case the police did their job well in protecting the public against possible crime – and they violated no constitutional right of defendant while doing so. It would be a travesty to permit the criminal here to suppress evidence of his criminality. Despite the police officers' gilding of their observations to make them appear more incriminatory than they were, the unvarnished evidence demonstrates that no right of defendant was violated.
Defendant George Levy moves to suppress (1) physical evidence recovered by officers of the New York City Police Department ("NYPD") following an allegedly unlawful stop and search, and (2) post-arrest statements claimed to have been made under coercion.
He is charged with possessing a firearm after having been previously convicted of one or more crimes punishable by a term of imprisonment exceeding one year, in violation of sections 922(g)(1) and 924(a)(2) of the United States Code, title 18. See Indictment, May 18, 2016, ECF No. 9.
The firearm was discovered by NYPD officers after one of them looked into a stopped vehicle. Defendant challenges the lawfulness of that discovery. According to defendant, the look into the vehicle in which he had been a recent passenger "was not justified by any suspicion of criminal activity." Def.'s Mot. to Suppress, Sept. 1, 2016, ECF No. 19 ("Def's Mot."), at ¶ 9. He moves to suppress the physical evidence recovered from the vehicle and his person: any evidence recovered should be suppressed, he claims, as "a fruit of the poisonous tree." Id. at ¶ 10.
Defendant also argues that his post-arrest written and oral statements were unlawfully coerced. Id. at ¶¶ 12-16. More than eleven hours passed between his arrest and the oral statement he now moves to suppress. Id. He contends that he spoke following unlawful threats that his girlfriend would lose her nursing license and custody of her children if he did not take responsibility for the gun and his admissions. Id.
The relevant facts are disputed by the parties. The court held a full bench trial on the question of what happened at or near the time of arrest. Set out below are the proposed storylines of the parties and the findings of the court beyond a reasonable doubt.
The parties appeared in person at the suppression hearing on October 5, 13, and 14, 2016. Hr'g Tr., Oct. 14, 2016 ("Hr'g Tr."). Defendant submitted a declaration and testimony in support of his motion. Def.'s Mot. at Ex. A, Sept. 1, 2016, ECF No. 19 ("Levy Decl."). The police submitted testimony in support of their version of what occurred.
According to defendant, on February 4, 2016, at approximately 1:35 a.m., he was sitting in the front passenger seat of his girlfriend's car, a Chrysler Pacifica ("Pacifica"). Levy Decl. at ¶ 2. She was driving. She pulled up and parked the car in front of her apartment building. He opened the front passenger door and exited. He states that the car was legally parked and "was not sticking out into the street in any way." Id. at ¶¶ 2-3. His girlfriend, Jessica Beniquez, testified at the evidentiary hearing that she had picked defendant up that evening, they purchased a snack of chips and soda at a corner store and then she drove herself and defendant to her apartment, where they were planning to spend the night. Hr'g Tr. 295:10-296:15, 328:14-329:12. She testified that she parked the Pacifica, which is registered to herself, "perfectly," approximately four inches from the curb across the street from her apartment building, with "nothing sticking out into the street." Id. at 298:6-14; Ct. Ex. 5B, Oct. 14, 2016.
When the officers approached the car, Ms. Beniquez had already turned off the engine; all the windows were closed. Her intention was to park the car for the night. She had begun exiting the car from the driver's door. Hr'g Tr. at 298:20-300:3, 329:18-330:17.
As the officers pulled up, her left leg was already out of the car. At the same time, defendant was exiting the car on the passenger side. Id. at 330:20-331:3. When the officers approached, the passenger door was wide open, and defendant was outside of the car, leaning into it to retrieve Ms. Beniquez's purse and the purchases they had just made. Id. at 331:5-24.
Defendant testified that at this point he had "one bag of marijuana inside of [his] underwear and one unlit marijuana cigar in [his] pocket." Levy Decl. at ¶ 3. According to his declaration, no "lit or burning marijuana" was present on either his person or in the vehicle. Id. Ms. Beniquez testified that neither she nor the defendant had been smoking marijuana in the car during or prior to the officers' arrival; it is a firm principle of hers that "there is no marijuana smoking in [her] car." Hr'g Tr. at 300:14-301:3.
The police provide a different account. They testified that three plainclothes NYPD officers on anti-crime patrol in an unmarked car pulled up next to the vehicle after they observed it "parked with the rear end ... sticking out into the street and impeding traffic." Gov't Mem. in Opp'n to Def.'s Mot. to Suppress, Sept. 8, 2016, ECF No. 21 ("Gov't Opp'n Mem."), at 2; Hr'g Tr. at 14:1-15:8. The officers' car stopped alongside the car in order to instruct the driver to park properly. Hr'g Tr. at 15:9-24. Through the open windows of their unmarked car, the officers claimed they smelled marijuana emanating from the Pacifica. Gov't Opp'n Mem. at 2; Hr'g Tr. at 16:9-13. The stopped Pacifica's dome light was on. Within the vehicle, they observed a woman sitting in the driver's seat, just rising to exit. The defendant was standing just outside the wide-open passenger door of the vehicle, leaning into the car. Hr'g Tr. at 15:25-16:8.
The three officers approached the vehicle. Two officers asked defendant's girlfriend for her license and registration, which she promptly provided. Gov't Opp'n Mem. at 2; Hr'g Tr. at 105:12-20. According to the government, "[w]hen the driver of the Pacifica opened the door of her car to hand her license to the officers, [the officers] immediately noticed that the odor of marijuana became much stronger." Gov't Opp'n Mem. at 2.
The two officers took the driver of the vehicle to its rear. The third officer, Officer Taveras, approached defendant, who at that time was "standing outside of the open front passenger door of the Pacifica." Id. They indicate that defendant "appeared to be moving something in the car" and "nervously glanced at the officer." Id.
According to the police, the officer approaching the passenger door "smelled a strong odor of marijuana." Id. He asked defendant whether he was smoking marijuana and whether he had any marijuana on him. Id. This officer says that defendant admitted to having a marijuana cigarette, handed it to the officer, and stated that "there might be some marijuana in the Pacifica:"
Defendant denies telling the officers that there were any drugs or other contraband in the vehicle. Def's. Mot. at ¶ 8. The officers found no smoked marijuana butt in or near the car. Hr'g Tr. at 72:18-20, 73:13-16, 127:8-25, 130:2-3, 231:13-232:7, 346:7-16.
Both defendant and his girlfriend were directed to stand at the rear of the vehicle. Levy Decl. at ¶ 4; Gov't Opp'n Mem. at 2. The police deny defendant's assertion that the officers "began to search the entire vehicle." Levy Decl. at ¶ 4.
The police testified that, after taking defendant to the rear of the vehicle, Officer Taveras walked to the still fully open front passenger door to conduct a search for any marijuana defendant stated may have been in the car. Hr'g Tr. at 23:13-16; Gov't Post-Hr'g Mem. of L. in Opp'n to...
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