United States v. McDow
Decision Date | 28 June 2016 |
Docket Number | S2 15 Cr. 233 (PGG) |
Citation | 206 F.Supp.3d 829 |
Parties | UNITED STATES of America, v. James MCDOW, Defendant. |
Court | U.S. District Court — Southern District of New York |
Gina Marie Castellano, U.S. Attorney's Office, New York, NY, for United States of America.
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. 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.
In an affidavit submitted in support of his motion to suppress, McDow asserts the following:
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.
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)
(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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