United States v. White

• Decision Date: 08 February 2018
• Docket Number: 17–CR–333 (WFK)
• Parties: UNITED STATES, v. David WHITE, Defendant.
• Court: U.S. District Court — Eastern District of New York

298 F.Supp.3d 451

UNITED STATES,

v.David WHITE, Defendant.

17–CR–333 (WFK)

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

Filed February 8, 2018

Penelope J. Brady, United States Attorney's Office Eastern District Of New York, Brooklyn, NY, for United States.

Len H. Kamdang, Federal Defenders of New York Inc., Brooklyn, NY, for David White.

DECISION & ORDER

WILLIAM F. KUNTZ, II, United States District Judge:

Defendant David White ("Defendant") seeks the suppression of evidence, including a firearm and ammunition, which he alleges was obtained illegally and in violation of the protections of the Fourth Amendment. The Government argues that the search at issue was lawful. The Government also argues that, in any event, the evidence is admissible pursuant to the inevitable discovery doctrine. For the reasons discussed below, the Defendant's motion to suppress is DENIED.

BACKGROUND

On June 23, 2017, the Defendant was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 3551 et seq. ECF No. 8. On July 5, 2017, the Defendant was arraigned before Magistrate Judge Peggy Kuo and entered a plea of not guilty. ECF No. 10. On September 15, 2017, the Defendant filed a motion to suppress evidence pursuant to Federal Rule of Criminal Procedure 12(b)(3)(C). ECF No. 18 ("Def. Mot. to Suppress"). Specifically, the Defendant seeks to suppress a firearm, ammunition, and all other tangible evidence obtained as a result of what the Defendant contends was an illegal car search that occurred in the early morning hours on May 31, 2017. Id. at 1–2. On September 29, 2017, the Government filed its opposition to the Defendant's motion to suppress. ECF No. 23 ("Gov't Opp."). This Court held a suppression hearing on November 3, 2017, during which the Government presented two witnesses: New York Police Department ("NYPD") Officer Philip Tantillo and NYPD Lieutenant Matthew Cahill, two of the officers involved in the May 31, 2017 search at issue. See November 3, 2017 Suppression Hearing Transcript ("Tr."). The Court finds the testimony of the two officers credible. The Court also notes that video footage of the incident is consistent with their testimony. See Gov't Ex. 1. The Defendant did not present any witnesses at the hearing. Following the suppression hearing, the Government submitted a post-hearing brief on December 15, 2017, ECF No. 32 ("Gov't Post–Hr'g Br."), and the Defendant submitted a post-hearing brief on December 16, 2017, ECF No. 33 ("Def. Post–Hr'g Br."). On December 22, 2017, both the Government and the Defendant submitted proposed findings of fact and conclusions of law. ECF No. 34 ("Gov't Proposed Findings") & ECF No. 35 ("Def. Proposed Findings").

FINDINGS OF FACT

On May 31, 2017, at approximately 1:50 A.M., NYPD Officer Philip Tantillo and Lieutenant Matthew Cahill,¹ who at the time were both members of the 73 ^rd Precinct anti-crime team, were on patrol in an unmarked police vehicle near the vicinity of 337 Bristol Street when they observed a black Honda Accord parked in front of a fire hydrant, a violation of the New York State Vehicle and Traffic Law. Tr. 5:7–7:9; 47:9–48:14. Lieutenant Cahill testified that the engine was running. Tr. 83:9–10. When asked why he was there, the Defendant stated that he was waiting for his girlfriend. Tr. 50:23–25; 70:5–6. Both officers testified that the Defendant was sitting behind the steering wheel of the vehicle and they each smelled marijuana. Tr. 7:4–6; 48:10–49:10; 67:20–23; 69:10–12. Officer Tantillo testified that, upon making these observations, he approached the Defendant and asked him for identification. Tr. 7:10–21. Lieutenant Cahill approached the passenger side of the car. Tr. 48:16–19. Officer Tantillo then gave the Defendant's identification to Lieutenant Cahill, who ran a check on it. Tr. 8:8–14; 11:8–12; 49:15–50:14. Officer Tantillo questioned the Defendant about an NYPD "PCT" shirt on his dashboard, which Officer Tantillo testified is the uniform shirt worn by members of the NYPD communications section. Tr. 10:19–11:7. The Defendant stated that his girlfriend worked for the NYPD, but the officers later learned from the Defendant's girlfriend that she worked for the Post Office, not the NYPD. Tr. 11:5–7; 30:17–20; 71:22–72:5. The Defendant had apparently placed the shirt there hoping he would not get a ticket for parking in front of a fire hydrant. Tr. 10:23–25.

Shortly thereafter, Lieutenant Cahill informed Officer Tantillo that the Defendant had been driving with a suspended license, a misdemeanor under the New York State Vehicle and Traffic Law. Tr. 11:19–12:1; 51:17–52:10. Officer Tantillo asked the Defendant to step out of the vehicle, but instead of complying with Officer Tantillo's order, the Defendant "rolled up the window and locked the doors" and said that he would not leave the vehicle. Tr. 12:2–8; 52:11–21. Officer Tantillo testified that he and Lieutenant Cahill informed the Defendant that if he did not comply, the officers would call the Emergency Services Unit. Tr. 13:1–4. During this time, the Defendant "was removing a jacket that he had on and he was moving around a lot, reaching underneath the front seat, the back seat, just lunging all around the car." Tr. 13:6–8; 33:11–19. Lieutenant Cahill testified that the Defendant "was making slight movements in the car, reaching under the seat of the car." Tr. 52:12–21. Officer Tantillo testified that although he called for the Emergency Services Unit, they did not arrive. Tr. 13:9–15. Instead, Sergeant Simms, another NYPD officer who was the patrol supervisor, arrived. Tr. 13:16–19; 35:23–36:3; 53:2–7. Sergeant Simms also instructed the Defendant to keep his hands on the steering wheel or on the dashboard, but the Defendant did not comply. Tr. 13:21–25; 53:9–19. Officer Tantillo testified that Sergeant Simms then used his ASP—an expandable metal baton—to break the driver's side window, at which point Lieutenant Cahill opened the door and the officers removed the Defendant from the vehicle, handcuffed him, and placed him near the back bumper of the vehicle. Tr. 14:9–15:23. Because the Defendant did not want to be seen by the public in handcuffs, the Defendant asked Officer Tantillo if he could put his hands against the back of the car, and Officer Tantillo complied. Tr. 17:23–18:3. Officer Tantillo testified that the Defendant also stated, "you already know what it is." Id.

Lieutenant Cahill testified that after the officers had removed the Defendant from the vehicle, Lieutenant Cahill searched the Defendant's person for the car keys so that the officers could remove the car from the scene. Tr. 54:4–55:6. Lieutenant Cahill testified that it was necessary to move the car because the driver's side window was broken, the car was still parked in front of a fire hydrant, and it was accessible for someone to steal the vehicle. Tr. 54:25–55:6. Having not found the car keys on the Defendant's person, Lieutenant Cahill then searched the vehicle itself for the keys, including the front and rear driver's side of the car, but to no avail. Tr. 54:22–56:11. He then checked the passenger's side of the car. Tr. 56:14–15. Lieutenant Cahill testified that he was looking in the rear passenger side of the car when he noticed a light jacket that the Defendant had placed in the back seat. Tr. 56:18–21. Lieutenant Cahill testified that when he attempted to move the jacket, he felt a weight inside of the jacket. Id. When he shined his flashlight on the jacket, he saw there was a gun in the pocket of the jacket. Tr. 56:24–57:1. At that point, Lieutenant Cahill testified that he stepped out of the car and signaled to Officer Tantillo he had found something inside of the car. Tr. 57:2–17. Officer Tantillo testified that although he did not specifically know a gun had been found at that point, he "knew something had been found" based on Lieutenant Cahill's body language. Tr. 18:22–19:12.

Lieutenant Cahill testified that he then asked the Defendant where the key was, and the Defendant told him it was under the driver's seat of the car. Tr. 57:23–58:14. Lieutenant Cahill was eventually able to locate the keys to the car. Tr. 58:15–24. He testified that he drove the car to the precinct and parked it in a secure garage. Tr. 59:13–60:22. Officer Tantillo testified that the Defendant was transported to the precinct in a marked police vehicle. Tr. 18:8–19. Officer Tantillo returned to the precinct in the same unmarked vehicle that he and Lieutenant Cahill were driving before they saw the Defendant's car in front of the fire hydrant. Tr. 18:20–21. Back at the precinct, after learning that a gun had been found inside the car, Officer Tantillo testified that he called the evidence collection team, or ECT, to come to the precinct to process the firearm. Tr. 19:13–20:2. Officer Tantillo also testified that he performed an inventory search, or "voucher," of the vehicle, which involves "itemizing the different things that are inside the vehicle. That way everything is accounted for, vouchered, given a number, and everything is in place." Tr. 22:3–15. Officer Tantillo testified that the NYPD has guidelines in the patrol guide for how to conduct an inventory search. Tr. 22:16–21.

In this case, that inventory search included vouchering the jacket, the gun, and some clothes in the trunk of the car. Tr. 22:25–23:6. Lieutenant Cahill also testified that under normal police procedure, if he had located the keys to the car on the Defendant's person without searching the vehicle, he "would have immediately drove the car back, and have [the Defendant] transported] back to the precinct." Tr. 63:23–64:6. Lieutenant Cahill testified that under normal police procedure, "[b]ack in the precinct an inventory search would be conducted, and the items inside would be voucher[ed] for safekeeping." Tr. 64:7–18.

DISCUSSION & ANALYSIS

I. Legal Standard

The Fourth Amendment to the U.S. Constitution protects the "right of ...