United States v. McDow

Decision Date28 June 2016
Docket NumberS2 15 Cr. 233 (PGG)
Citation206 F.Supp.3d 829
Parties UNITED STATES of America, v. James MCDOW, Defendant.
CourtU.S. District Court — Southern District of New York

Gina Marie Castellano, U.S. Attorney's Office, New York, NY, for United States of America.

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, United States District Judge

Defendant James McDow is charged with conspiracy to distribute and possess with intent to distribute heroin and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. (S2 Indictment (Dkt. No. 128)) McDow has moved to suppress certain evidence obtained during an encounter with New York City Police Department ("NYPD") officers on August 4, 2014, at 2559 Decatur Avenue, Bronx, New York. (Dkt. No. 76) The evidence at issue includes 153 glassines of heroin; eight Ziplock bags of crack cocaine; $2300 in cash; two cellular phones; and statements McDow made to the police at that time. (Paul Affirm. (Dkt. No. 77)) McDow has also moved for disclosure of Rule 404(b) evidence, as well as Brady and Giglio material. Finally, McDow has moved for an order permitting him to (1) make further motions as he deems necessary; and (2) join in any motions made by co-defendants. (Dkt. Nos. 76, 77)

For the reasons stated below, McDow's motion to suppress will be granted, and McDow's remaining motions will be denied.

BACKGROUND
I. MCDOW'S AFFIDAVIT

In an affidavit submitted in support of his motion to suppress, McDow asserts the following:

... On August 4, 2014, I was arrested by the New York City police and charged with Criminal Possession of a Controlled Substance in the Third Degree, Criminal Possession of a Controlled Substance in the Fourth Degree, and Criminal Possession of a Controlled Substance in the Seventh Degree.
... While standing on the sidewalk in front of 2559 Decatur Avenue, County of Bronx, I was stopped and questioned at approximately 6:18 P.M. when two police officers in uniform drove up in an unmarked car and after they got out of the car and approached me they told me to move away from that location. When I proceeded to do so[,] they called me back, asked if I had any weapons on my possession and, after I told them I did not, they proceeded to search inside all of my pockets.
... The police officers then asked if I had a key to the building I was standing in front of, specifically 2559 Decatur Avenue, and when I answered that I did[,] they requested that I open the front door. After I did as directed I was again searched thoroughly inside the building and then asked if I lived inside the building. I told them that I did not but [that] my God mother lived on the fourth floor. We then walked upstairs where I opened the apartment door to my God mother's apartment. After doing so we returned downstairs.
... When we arrived downstairs I was again searched through this time, after the police looked inside my pockets, I was strip searched by them.
... Thereafter I was placed under arrest. When I asked why I was being arrested I was told it was for trespassing inside of 2563 Decatur Avenue. I was then taken to the police car, and then to the precinct where I was processed and thereafter brought to the Criminal Court.
... At no time prior to being taken into custody, was I given my Miranda rights.

(McDow Aff. (Dkt. No. 78) ¶¶ 4-9)

II. EVIDENCE AT SUPPRESSION HEARING

On April 14, 2016, and April 18, 2016, the Court conducted an evidentiary hearing concerning McDow's suppression motion. (Suppression Hearing Tr. (Dkt. Nos. 132, 141) ("Hearing Tr.")) The Government called NYPD officers Brandon Gembecki and Sean Kinane, both of whom are assigned to the 52nd Precinct in the Bronx. (Hearing Tr. (Dkt. No. 132) at 2-3, 51)1 McDow did not testify at the hearing.

A. The Video Evidence

During the suppression hearing, the Government introduced a video that shows the August 4, 2014 encounter between McDow and Officers Gembecki and Kinane outside 2559 Decatur Avenue (the "Building").2 (Government Exhibit ("GX") 2) The video contains three segments. The first segment shows the initial encounter between McDow and the two police officers on the sidewalk outside 2559 Decatur Avenue, and their subsequent entry into the Building. The second segment shows the scene outside 2559 Decatur while McDow and the police officers are inside the Building. The third segment shows the two police officers and McDow exit the Building and walk to the officers' vehicle. See id.

The first video segment begins with McDow standing on the street in front of 2559 Decatur Avenue with several other African-American men. No criminal activity is apparent. (GX 2, Video Segment 1 at 0:00-0:25) Officer Gembecki and Kinane's police vehicle pulls up and stops in front of the Building, and the two officers are shown exiting the vehicle. (Id . at 0:09-0:30) Officer Gembecki speaks to the group—including McDow—and the men then walk away. (Id. at 0:34-45) Gembecki appears to direct McDow to return, however. (Id. at 0:53-56)

Officer Gembecki and McDow then engage in a conversation in front of the Building. (Id. at 0:58) While Officer Gembecki is speaking with McDow, Officer Kinane takes a position directly in back of McDow. Officer Kinane remains in this position throughout the conversation between Officer Gembecki and McDow. (Id. at 1:00-07) The video shows Officer Gembecki searching the right front pocket of McDow's pants. (Id. at 1:09-32) Officer Gembecki also appears to be directing McDow to empty his right front pocket, and McDow appears to reach into that pocket. (Id. at 1:15-20) The video then shows Officer Gembecki searching McDow's left front pocket and left rear pocket. (Id. at 1:32-36, 1:34-47, 1:57-2:09) As Officer Gembecki searches McDow's rear left pocket, McDow looks over his shoulder, where Officer Kinane is standing close behind him. (Id. at 2:06-09).

McDow then takes a key out of his pocket and uses it to open the front door of the Building. (Id. at 2:50-59) This segment ends after McDow enters the Building, followed by the two police officers. (Id. at 3:00-09)

The second video segment—which is 21 seconds long—shows the sidewalk outside the Building during the time that McDow and the two police officers are inside the Building. (GX 2, Video Segment 2)

The third video segment shows McDow walking out of the Building with the two police officers. (GX 2, Video Segment 3 at 1:15) McDow—who is handcuffed—follows Officer Gembecki to the officers' vehicle; Officer Kinane follows McDow. (Id. at 1:15-26)

B. The Police Officers' Testimony

In August 2014, Officers Gembecki and Kinane were assigned to a "conditions team" at the 52nd Precinct. (Hearing Tr. (Dkt. No. 132) at 3, 51) A "conditions team" "address[es] conditions that are occurring in [the] precinct," including "narcotics, prostitution, [and] quality of life [offenses]." (Id. at 3, 51) On August 4, 2014, the day of McDow's arrest, Officers Gembecki and Kinane were focused on narcotics activity. (Id. at 5, 53-54) Each officer has made hundreds of narcotics arrests in the course of his career. (Id. at 3, 52)

Officers Gembecki and Kinane were working the 3:00 p.m. to 11:35 p.m. shift on August 4, 2014 (id. at 4), and that afternoon they proceeded to Decatur Avenue between East 193rd Street and Fordham Road. (Id. at 5, 52) The officers selected that block because "[i]t was a known narcotics-prone location." (Id. ) Both officers had conducted patrols on that block and had observed crack pipes, needles, and other drug paraphernalia in the lobbies and stairways of buildings in the area. (Id. at 4, 26-27, 52-53) Officer Gembecki had dealt with an apparent drug overdose in that area (id. at 4), and Officer Kinane had made arrests and done car stops in that area, during which he had recovered narcotics. (Id. at 52, 71)

Officers Gembecki and Kinane—who were in uniform—arrived at Decatur Avenue at approximately 5:45 p.m. in an unmarked police vehicle. (Id. at 5, 8, 26, 53-54, 58) It was daylight when the officers arrived. (Id. at 7, 55) The officers went to a rooftop on the southeast corner of East 193rd Street and Decatur Avenue. (Id. at 5, 54) At that location, they were approximately five stories above street-level. (Id. at 24-25) From the rooftop, the officers were able to observe "the entire block [of Decatur Avenue] from Fordham [Road] to 193rd Street." (Id. at 54) While the officers were on the rooftop, Officer Kinane used binoculars to observe the street. (Id. at 7, 55) Officer Kinane reported his observations to Officer Gembecki, who was "securing the roof" and who was not observing the street. (Id. at 7, 22-23, 55)

From the rooftop, Officer Kinane noticed a "large individual" who was "possibly" wearing a "white [tee]-shirt." (Id. at 55, 75) Officer Gembecki stated that Officer Kinane described a "male black, heavyset, wearing a white ... long-sleeve shirt." (Id. at 7) Officer Kinane watched this individual—Defendant McDow—for approximately "forty-five minutes, [or] an hour maybe."3 (Id. at 57)

Officer Kinane testified that he

observed the defendant ... between ... East Fordham [Road] and 193[rd Street] on Decatur [Avenue] standing on the street. [He] observed what [he] believed to have been a buyer, somebody coming to purchase narcotics, walk down the street and approach a possible lookout or a ... steer[er][,] somebody who would say, this is where you go to purchase narcotics. As [he was] observing ... this individual then ... approached McDow. And [he] observed a quick exchange or a quick meeting. And then the individuals would leave the location shortly after.

(Id. at 56)4

When asked what he meant by an "exchange," Officer Kinane explained that he "meant ... two people meeting ... each other, and then one of them leaving the location, the other one staying." Officer Kinane believed that such an encounter was "a narcotics transaction." (Id. ) Officer Kinane could not "remember exactly how many" such "quick meetings" he observed McDow engage in, but he "believe[s] it was more than one." (Id....

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