United States v. Torres

• Decision Date: 09 May 2017
• Docket Number: No. 16-cr-767 (RJS).,16-cr-767 (RJS).
• Citation: 252 F.Supp.3d 229
• Parties: UNITED STATES of America, v. Nathan TORRES, Defendant.
• Court: U.S. District Court — Southern District of New York

252 F.Supp.3d 229

UNITED STATES of America,

v.Nathan TORRES, Defendant.

No. 16-cr-767 (RJS).

United States District Court, S.D. New York.

Signed May 9, 2017

Gillian Grossman, U.S. Attorney's Office, Southern District of New York, New York, NY, for United States of America.

Jennifer Elaine Willis, pro hac vice, Federal Defenders of New York, New York, NY, for Defendant.

OPINION & ORDER

RICHARD J. SULLIVAN, District Judge:

Now before the Court is Defendant Nathan Torres's motion to suppress physical evidence and post-arrest statements obtained by law enforcement officers from Defendant in the course of an investigative stop and frisk. For the reasons stated below, the Court denies the motion.

I. BACKGROUND

According to the indictment, which was returned on November 17, 2016, Defendant is charged with possessing a firearm after having been previously convicted of a felony in violation of 18 U.S.C. § 922(g). (Doc. No. 6.) On January 11, 2017, Defendant filed the present motion (Doc. No. 11), asserting that law enforcement officers lacked reasonable suspicion to stop and frisk him on the evening of September 17, 2016. The Court thereafter held a suppression hearing, at which the government called three New York City police officers—Officer Alexis DeJesus, Sergeant Brian Manning, and Sergeant Stephen Schoefer—concerning the events of September 17, 2016. The Court also received several exhibits into evidence. Following the hearing, the parties filed additional written submissions, and on March 10, 2017, the Court heard additional oral argument from counsel.¹

A. Summary of the Hearing Testimony

Each officer has served in the New York City Police Department (NYPD) for several years, with Manning and Schoefer rising to the rank of sergeant. (Hr'g Tr. 8:15, 73:5–6, 73:11–17, 121:13–14.) All three officers work in the anticrime unit of Patrol Borough Bronx. (See Hr'g Tr. 8:18–19, 73:11–17, 121:5–7.) At least two of the officers, DeJesus and Schoefer, were previously assigned to the 44th Precinct in the Bronx, an area that includes the site of Defendant's stop, frisk, and arrest. (See Hr'g Tr. 14:5–19, 121:8–9.)

On the night of September 17, the police officers were on patrol in an unmarked police car. (Hr'g Tr. 9:5–7, 9:15–21, 74:1–15.) They were dressed in plainclothes. (Hr'g Tr. 9:10–14, 74:6–7.) At approximately 10:00 p.m., the officers received a report of "shots fired" in the vicinity of 167th Street and Clay Avenue in the Bronx. (Hr'g Tr. 11:23–13:18, 77:2–25.)

Shortly before midnight, the officers were together in a car headed westbound on 167th Street. (See Hr'g Tr. 13:21–14:2, 16:10–14.) Manning was driving the car, Schoefer was sitting in the front passenger seat, and DeJesus was in the back seat. (Hr'g Tr. 10:18–23, 74:16–18, 122:11–13.) As their vehicle turned the corner onto Clay Avenue, the officers observed Torres and an unidentified individual in conversation on the sidewalk at the southeast corner of the intersection. (Hr'g Tr. 16:1–14, 76:11–23, 121:25–122:14.) Defendant was wearing a t-shirt and sweatpants, and he was carrying a plastic bag and a sweatshirt. (Hr'g Tr. 17:2–24, 78:7–12, 122:11.) As the police car turned onto Clay Avenue, Torres made eye contact with the officers in the vehicle, which came to a stop. (Hr'g Tr. 18:10–14, 78:16–21.) According to DeJesus, Torres's "eyes opened up and he froze," looking "afraid." (Hr'g Tr. 18:10–11, 18:23–25.) Torres then ended his conversation and began walking in the opposite direction, away from the police officers' vehicle. (Hr'g Tr. 18:15–17, 122:11–14.) In response, Manning backed up the patrol car to follow Torres, who then reversed direction again and began walking south along Clay Avenue, away from the officers' car. (Hr'g Tr. 18:12–17, 19:24–20:3, 80:19–23.)

Once the officers had backed up to the corner, the car stopped and the officers testified that DeJesus exited the vehicle and identified himself as a police officer. (Hr'g Tr. 21:10–21:14, 83:16–84:17, 85:14–19.) At that moment, Torres started running southbound on Clay Avenue (Hr'g Tr. 21:16–23, 83:16–18), whereupon DeJesus pursued Torres down the sidewalk on foot (Hr'g Tr. 23:9). Manning, still behind the wheel of the police car, then drove south on Clay Avenue alongside Torres, and Schoefer, who had gotten out of the vehicle, ran down the street following the patrol car. (Hr'g Tr. 28:6–7, 84:18–85:13, 123:22, 124:21–23.) While pursuing Torres, Manning identified himself as a police officer and ordered Torres to stop running. (Hr'g Tr. 86:1–12.) The officers testified that as Torres ran, his right hand remained close to his right pocket. (Hr'g Tr. 23:10–11, 25:18–26:13, 87:16–88:7.) In particular, Manning testified that "as the fleeing began, [Torres] grabbed onto that pocket and was holding onto it as he was running," and he "would not take it off during the pursuit." (Hr'g Tr. 87:1–3.) During the flight, Manning, believing that Torres was about to remove a gun from his pocket, shouted, "If you pull it out, I will shoot you." (Hr'g Tr. 88:7–12.) Manning also stated that he observed Torres's "pocket kind of [sit] a little heavy." (Hr'g Tr. 88:23–24.)

Once Torres neared the intersection of 166th Street and Clay Avenue, he threw himself on the pavement, discarded the bag he had been carrying, and lay face-down on the ground. (Hr'g Tr. 26:15–19, 29:2–18, 89:3–4.) DeJesus immediately approached Torres and frisked his right pants pocket (Hr'g Tr. 26:25), which contained a hard object that DeJesus thought felt like a gun. DeJesus thereafter removed a loaded .32 caliber semiautomatic firearm from Torres's pocket (Hr'g Tr. 27:7–10, 30:20–22, 89:7–10, 89:20–90:1; GX 2), at which time Torres was placed under arrest. (Hr'g Tr. 37:7–8.) Torres later made inculpatory statements to the police officers. (Hr'g Tr. 38:6–7, 90:5–9.)

B. Surveillance Videos

In addition to hearing the testimony of the three officers, the Court received several exhibits into evidence. Of consequence to this motion are three surveillance videos, apparently taken from security cameras positioned along the front of residential buildings on Clay Avenue that captured different parts of Torres's flight and the officers' pursuit. Two of the videos, GX 3 and GX 4, were introduced by the government and one, DX 1, was introduced by Defendant.

The first video, GX 3, is just under four minutes long. The video was taken by a camera that apparently faces north up Clay Avenue. In the video, two parked cars can clearly be seen alongside the sidewalk in the frame. When the video begins, an individual with his back to the camera, identified as Torres, can be seen in a white t-shirt and red sweatpants, talking to a person who cannot clearly be seen. While standing on the corner, Torres paces and turns several times, revealing a slight bulge in his right pants pocket between his thigh and knee. Toward the end of the video, a car—identified by the officers as their unmarked police car—can be seen making a left turn onto Clay Avenue, whereupon Torres wanders off the screen toward the right. He then reappears in the frame and shortly thereafter takes off running down the block. An individual, identified as DeJesus, appears behind Torres in a black and white striped shirt and pursues him. Both Torres and DeJesus quickly run out of the frame.

The second video, DX 1, is thirty-five seconds long. This footage is also taken from a camera pointing northbound up Clay Avenue, but this camera was positioned farther down the block from the one that recorded GX 3. As a result, a greater extent of the street and sidewalk—approximately seven parked car lengths—is in the frame. The corner, where Torres's flight began, cannot clearly be seen, so when figures first appear in the frame, Torres's flight and DeJesus's pursuit are already in progress. During the chase, an object in Torres's right pants pocket can be observed swinging as Torres runs down the street. The chase can be seen in this video for less than five seconds.

The last video, GX 4, is the only one of the three taken from a southbound-facing camera. The video is approximately two-and-a-half minutes long. About five car lengths of sidewalk is illuminated and clearly visible in the forefront of the frame, but more of the darkened street can be seen along the periphery. This video opens with a child in a stroller and two adults unloading a double-parked car. Toward the end of the video, Torres and DeJesus run into the frame as the camera catches their chase from behind. The officers' car can also be seen driving alongside Torres and DeJesus. Torres can be seen running in this video for approximately five seconds. While the end of the pursuit is not captured by the surveillance footage, the video does show the police car's brake lights go on at the end of the block, presumably where Torres flung himself onto the street and the chase ended.

II. LEGAL STANDARD

Police officers may institute a brief investigative Terry stop if they hold a " ‘reasonable suspicion’ to believe that criminal activity has occurred or is about to occur." United States v. Tehrani , 49 F.3d 54, 58 (2d Cir. 1995). In the course of a Terry stop, police officers may conduct a limited frisk for weapons if the officers have a reasonable suspicion that the suspect is "armed and dangerous." Arizona v. Johnson , 555 U.S. 323, 326–27, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009).

"Reasonable suspicion requires more than an ‘inchoate and unparticularized suspicion or hunch.’ Police ‘must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion [on a citizen's liberty interest].’ Like probable cause, reasonable suspicion is determined based on the totality of the circumstances[,] but ‘the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.’ " United States...