United States v. Rowson
| Decision Date | 26 January 2023 |
| Docket Number | 22 Cr. 310 (PAE) |
| Parties | UNITED STATES OF AMERICA, v. ISZAYAH ROWSON, Defendant. |
| Court | U.S. District Court — Southern District of New York |
This decision resolves two motions by defendant Iszayah Rowson. Rowson moves to suppress a firearm seized from him during a traffic stop on the grounds that the livery car in which he was a passenger was stopped, and he was thereafter frisked in violation of the Fourth Amendment. Rowson also moves to dismiss the one-count Indictment, which charges him with receipt of a firearm in violation of 18 U.S.C. § 922(n) which makes it a crime for a person while under indictment for a crime punishable by imprisonment for a term exceeding one year to ship, transport, or receive a firearm that has travelled in interstate or foreign commerce. Drawing on New York State Rifle & Pistol Association, Inc v. Bruen, 142 S.Ct. 2111 (2022), Rowson argues that § 922(n) is facially unconstitutional under the Second Amendment.
For the reasons that follow, the Court denies both motions.
On June 2, 2022, the Grand Jury returned the Indictment, charging Rowson with a single count of violating § 922(n), on or about March 5, 2022. Dkt. 11. The charges arose from a stop shortly after 9:45 p.m. that evening by two New York City Police Department (“NYPD”) officers of an Uber livery car in the Bronx, on the ground that the backseat passenger, Rowson, was not wearing a seatbelt, as required by law. After an exchange with Rowson, and after he was asked to and did exit the vehicle, an officer patted down Rowson and found a firearm in the waistband of his pants. The gun had been stolen on February 8, 2022 in Virginia. Dkt. 8 (“Bail Hearing Tr.”) at 6 7. At the time, Rowson was under indictment in New York State for criminal possession of a weapon in the second degree, in violation of New York State Penal Law (“NYSPL”) § 265.03(3), and criminal possession of a firearm, in violation of NYSPL § 265.01-(b)(1). Dkt. 11. Both are felony offenses. See NYSPL § 70.02.
On November 15, 2022, Rowson moved to suppress the firearm and to dismiss the Indictment. Dkt. 32. In support, he filed a memorandum of law, Dkt. 33 (“Mem.”), and exhibits. On December 2, 2022, the Government filed an opposition brief. Dkt. 35 (“Opp.”). It opposed an evidentiary suppression hearing. Id. at 12. On December 6, 2022, the Court ordered that the hearing would proceed as scheduled. Dkt. 36.
On December 12, 2022, the Court heard testimony from two police officers, received documentary and photographic evidence, and heard argument. At the close of the hearing, the Court invited supplemental briefing on the motion to dismiss. On December 23, 2022, the parties submitted supplemental briefs. Dkts. 41 (“Gov't Ltr. Br.”), 42 (“Def. Ltr. Br.”).
A. Factual Findings
Based on the evidence at the suppression hearing, the Court finds the following facts. The evidence consisted of the testimony of (1) Lieutenant Rafael Tosado, a 17-year NYPD veteran, see Suppression Hearing Transcript (“Tr.”) 17; and (2) Officer[1] Eric Bernard, a seven-year NYPD veteran, Tr. 69. Tosado and Bernard (the “officers”) conducted Rowson's traffic stop, frisk, and arrest. Unless otherwise indicated, the Court credits the testimony cited herein. The Court also received photographs of Rowson taken at the police station immediately after his arrest, GX8, GX11, GX12; photographs of signage posted on the Uber, GX9, GX10; photographs of the gun and ammunition recovered from Rowson, GX6, and of the firearm itself, GX7; video footage from the officers' body-worn cameras, GX1 (Tosado), GX2 (Bernard); and a still image from the same footage, GX4. See generally Tr. 21 (GX2), 24 (GX11), 28 (GX1), 31 (GX9), 32 (GX10), 38 (GX12), 39 (GX8), 45 (GX6), 46 (GX7), 87 (GX4).
On the night of March 5, 2022, the officers were patrolling the 46th precinct in the Bronx in an unmarked police car. Tr. 17 18, 70. Their purposes were to prevent crimes and to respond to crimes in progress. Tr. 17-18. Such patrols address all offenses, including vehicular offenses. See Tr. 69-70. Under New York law, vehicle passengers, including those in the back seat, are required to wear a seatbelt. Tr. 26; see also N.Y. Vehicle & Traffic Law § 1229-c.
Lieutenant Tosado was driving; Officer Bernard sat in the passenger seat. Tr. 18.[3] On numerous occasions, both officers had stopped cars based on the fact that a backseat passenger was not wearing a seatbelt. Tr. 26 (Tosado), 79 (Bernard). Both had received training in identifying concealed firearms and had experience conducting firearm-related arrests. Lieutenant Tosado had been trained in recognizing the shape, sizes, and common methods of concealed carrying, and had participated in numerous gun arrests as part of a team focused on gun crimes. Tr. 46-47. Some of these arrests had arisen from observing bulges in clothing indicative of a firearm. Tr. 47. Officer Bernard had been trained in the concealment of firearms, and in common “characteristics,” “body movements,” and “demeanors” of a person carrying a concealed weapon. Tr. 90. He had participated in numerous gun arrests, including ones where the concealed firearm produced a bulge in the suspect's clothing. Tr. 90.
At 9:45 p.m., the officers were driving north along Webster Avenue, in the vicinity of East Tremont Avenue and East 178th Street. Tr. 18. Webster Avenue has four traffic lanes- two northbound and two southbound; one of which in each direction is a bus lane. Tr. 18-19,71. The officers were driving northbound in the bus lane, Tr. 19, 22, at under 10 miles per hour, Tr. 74 (Bernard), and perhaps under five miles per hour, Tr. 23 (Tosado).
Both officers wore body cameras[4]; neither had previously interacted with Rowson. Tr. 25 (Tosado), 75 (Bernard). As they approached a red light, the officers noticed a four-door Toyota Camry, Tr. 19, 52, which they identified as a livery cab from its license plate. Tr. 72. The driver-side window of the officers' car was halfway down, giving them an unobstructed view. Tr. 23 (), 77. This portion of Webster Avenue was well lit by streetlights and ambient light from commercial and residential buildings. Tr. 18-19, 28-29 (Tosado); 71-72 (Bernard). Lieutenant Tosado looked to his left, through his window, and into the Camry. Tr. 27, 75; GX2 00:05-:12. Its windows were untinted. Tr. 23, 75.
Lieutenant Tosado noticed that the Camry's rear passenger, later identified as Rowson, was not wearing a seatbelt. Tr. 23. Rowson was sitting on the right-hand side of the Camry, the side closest to the officers, and wearing a white shirt and light-washed denim jacket. Tr. 24 (Tosado), 78, (Bernard); see also GX11 (Rowson in clothes from March 5, 2022). Lieutenant Tosado testified that Rowson's light-colored clothing made it easier to spot the absence of a dark-colored seatbelt chest strap. Tr. 24. He also testified that the Camry was clearly visible for a couple of seconds while both cars were stopped at the red light. Tr. 51.
Officer Bernard testified that he also saw that Rowson was not wearing his seatbelt. Tr. 72, 75-76. He could see into the Camry, despite being in the police car's passenger seat, because Lieutenant Tosado's window was lowered, and the Camry's windows were not tinted. Tr. 75; see generally Tr. 75-77. Officer Bernard testified that he also inferred that Rowson was not wearing a seatbelt from the absence of a dark-colored chest-strap against Rowson's lightcolored clothing. Tr. 76-78.
The officers “wav[ed] the vehicle” past them to confirm their “initial sight that the defendant was not wearing a seatbelt.” Tr. 79; see also Tr. 26; GX2 00:29. Both testified that, before waving the Camry past, they had “already discussed that [they] were going to pull over” the Camry based on having observed Rowson not wearing a seatbelt. Tr. 79 (Bernard); see also Tr. 80 ( ), Tr. 26-27 ( ). As the Camry passed the police car, Officer Bernard saw, for a second time, that Rowson was not wearing a seatbelt. Tr. 80. Consistent with this, the body camera footage reflects that, after waving a car past, Lieutenant Tosado looked carefully out his window at a passing black sedan (the Camry). See GX2 00:29-:33.
The officers pulled over the Camry. GX11:00:03; Tr. 30, 81. Lieutenant Tosado approached the Camry's driver and asked for his license, consistent with departmental policy for traffic stops. Tr. 33; GX1 l:03-:22. The driver told Lieutenant Tosado that he had asked Rowson to wear a seatbelt, but that Rowson had refused. Tr. 33. The Camry had two signs instructing passengers to wear their seatbelts. Tr. 30-32; GX9-10. Meanwhile, Officer Bernard approached Rowson on the Camry's rear, passenger side. Tr. 33, GX2 1:03-: 15. Both officers testified that, as they approached the Camry, they again saw, through its untinted windows, that Rowson was not wearing a seatbelt. Tr, 30, 55 (Tosado); Tr. 82 (Bernard).
The area in which the officers stopped the Camry is a high-crime area, with “a lot of shootings, robberies, gun possession, a lot of violence, a lot of assaults, a lot of fights.” Tr. 40 (Tosado), 93 (Bernard). The area of the stop was well...
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