US v. Barber, No. 93-CR-83L.

• Decision Date: 10 September 1993
• Docket Number: No. 93-CR-83L.
• Citation: 839 F. Supp. 193
• Parties: UNITED STATES of America, Plaintiff, v. Jeffrey Jerome BARBER, Defendant.
• Court: U.S. District Court — Western District of New York

839 F. Supp. 193

UNITED STATES of America, Plaintiff, v. Jeffrey Jerome BARBER, Defendant.

No. 93-CR-83L.

United States District Court, W.D. New York, Criminal Division.

September 10, 1993.^*

Bradley E. Tyler, Asst. U.S. Atty., Rochester, NY, for plaintiff.

Daniel Aureli, Rochester, NY, for defendant.

DECISION AND ORDER and REPORT AND RECOMMENDATION

FISHER, United States Magistrate Judge.

The defendant is charged in a one count indictment with possessing a firearm shipped in interstate commerce while having been convicted of a felony drug offense in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). Following defendant's arraignment he filed omnibus motions, including a motion to suppress evidence. These motions were referred to me by district judge David G. Larimer pursuant to 28 U.S.C. § 636(b)(1)(A)(B). The following is my Decision and Order that defendant's omnibus motions be granted in part and denied in part as specified below, and my Report and Recommendation that the motion to suppress the gun and the motion to suppress defendant's statements be denied.

I. Motions for Discovery, for Brady Material, and for a Bill of Particulars

The parties identified no continuing disputes concerning the status of Rule 16 discovery and defendant's various requests for Brady material. On the other hand, the government opposes a motion for a bill of particulars and defendant continues to wish that one be filed. For the reasons stated in United States v. Torres, 901 F.2d 205, 234 (2d Cir.1990), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990), I find that a bill of particulars is not necessary in this case. As in Torres, the six requests are an "ill-disguised attempt at general pre-trial discovery." Id., 901 F.2d at 234 (quoting the district court's unpublished memorandum pertaining to defendant Cruz). As a separate matter, the court would not be inclined in view of the broad discovery afforded by the government to grant a bill of particulars as a matter of discretion. The motion to compel the filing of a bill of particulars is denied.

II. Motion for Disclosure of Grand Jury Proceedings

Defendant moves to inspect the grand jury minutes primarily for the purpose of discovering whether sufficient evidence was given to the grand jury and to determine whether the instructions given to the grand jury by the government's attorney were adequate. This motion is denied. "A review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct." United States v. Torres, 901 F.2d 205, 233 (2d Cir.1990), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). Defendant makes no factual showing in this case, and virtually admits that he cannot make such a showing.

Accordingly, "counsel's unsupported view that abuses may have occurred ... with respect to the grand jury system is insufficient in this case to overcome the presumption of regularity of the grand jury proceedings and does not justify disturbing the traditional secrecies surrounding such proceedings." United States v. Wilson, 565 F.Supp. 1416, 1436-37 (S.D.N.Y.1983), quoted in United States v. Marquez, unpublished 1992 WL 88139 (S.D.N.Y. April 22, 1992), and cited with approval in United States v. Torres, 901 F.2d at 233. See also, United States v. Piedrahita, 791 F.Supp. 418, 420 (S.D.N.Y.1992). Furthermore, an indictment cannot be dismissed, if facially valid, on the ground of insufficient evidence presented to the grand jury. Id., 791 F.Supp. at 420-21. See United States v. Williams, ___ U.S. ___, ___-___, 112 S.Ct. 1735, 1745-46, 118 L.Ed.2d 352 (1992). Cf. United States v. Roshko, 969 F.2d 1, 1 (2d Cir.1992) ("federal court review of grand jury proceedings is limited"). The motion for inspection is denied.

III. Motion in Limine

Defendant moves to preclude the prosecutor from cross examining him at trial with respect to prior bad acts. A hearing on this motion is granted, and deferred to the district judge who will try the case at the final pre-trial conference.

IV. Report and Recommendation on Motion to Suppress

In his original omnibus motions, defendant moved to suppress the loaded gun found in the trunk of his aunt's vehicle concealed in a teal blue gym bag. It is this weapon which is the subject of the felon-in-possession-of-a-weapon charge. The original motion papers allege that the traffic stop of defendant's aunt's vehicle was a pretext for a full search of the vehicle and that the search was otherwise in violation of the warrant clause of the Fourth Amendment. Furthermore, defendant contends that he did not consent to the search and that, even if he had consented, "it was unreasonable for the law enforcement officials to make such a request" for a consent.

Defendant's supplemental motion to suppress adds that probable cause was lacking for the police to make any inquiry regarding the contents of the vehicle, and that defendant was effectively under arrest by the "numerous law enforcement officers" at the scene who were armed and ordered defendant to get out of the vehicle. In his supplemental motion papers, defendant also moves to suppress statements he made at the scene. Finally, the court has accepted defendant's oral motion to suppress statements he made to an investigator at the stationhouse because the government chose to present proof of it at the suppression hearing, and requested an adjournment of the hearing for the purpose of developing the facts of the stationhouse interrogation. See letter of Bradley E. Tyler, AUSA, dated July 27, 1993, and attachment. Defendant makes no discrete challenge to the voluntariness of the statements, but moves to suppress on the ground that the standard pre-interrogation Miranda warnings were not properly administered. The hearing was held August 31, 1993.

A. The Hearing Testimony

Monroe County Deputy Sheriff Tyler Barrus testified that in the very early morning hours of January 20, 1993, he stopped a maroon Cadillac travelling northbound on Scottsville Road in western Monroe County. Barrus was travelling southbound at the time, and noticed that the Cadillac's back window was heavily tinted with two inch lettering which spelled "CAT." Barrus decided to stop the Cadillac and cite the driver for a violation of the New York Vehicle and Traffic Law relating to car windows modified to obstruct the view through the rear portion of the car. When Barrus approached the driver's window of the maroon Cadillac, he asked the driver to produce the customary identification documents. The driver explained that he had no "paperwork," but he identified himself as Jeffrey Jerome Barber and revealed his date of birth. Barrus went back to his patrol car to "run the data" through the Sheriff's Department computer system.

While Barrus was awaiting the results of the computer search, a second car pulled up, slowed, and then went on down Scottsville Road where it turned around, came back and parked in a Sugarcreek convenience store parking lot. The second car was a Chevrolet Chevette. Barrus observed a black male exit the Chevette and approach on foot as a third car, a Toyota, arrived on the scene. The man entered the Toyota. Barrus immediately summoned Deputy Sheriff Lance Hine to the scene for backup. New York State Troopers also appeared on the scene.

Thereafter, Barrus heard on his radio that the defendant was not the registered owner of the vehicle and that defendant's license was revoked, and had been suspended several times. Barrus determined that he should write an additional ticket to the defendant charging him with unlicensed operation of the car. Barrus also determined to find a licensed driver from among what he considered to be defendant's companions, who had arrived on the scene in the Toyota and Chevette.

The radio dispatch also informed Barrus that defendant had been arrested on a number of occasions, but his Department's computers did not reveal the nature of the arrests or dispositions. Deputy Hine, who arrived on the scene, contacted the Rochester City Police Department Records Unit and "ran defendant's name, his date of birth, and the moniker CAT" (the latter through the City Police Department's "clue record"). Hine learned that defendant had been convicted of a "B felony sale of narcotics" and he learned further that there had been other drug arrests involving the defendant in the city. When Barrus learned of this information, he determined to summon the Sheriff's Department Canine Unit to search for drugs. Within minutes, Sergeant Thomas E. McShea arrived with his narcotics dog Mark. The original stop had occurred at 2:00 a.m. on the morning of January 20th. Barrus testified that he requested the canine unit at 2:25 a.m., and both he and McShea testified that McShea arrived at 2:35 a.m.

Barrus set out to find a licensed driver to care for the maroon Cadillac. Upon inquiry, the passenger in the maroon Cadillac admitted that he was unlicensed. Barrus then turned to the Toyota, which was parked in front of the Cadillac. The individual who drove the Chevette to the Sugarcreek parking lot was, by that time, in the passenger seat of the Toyota. He identified himself as Louis Barber, the cousin of the defendant. Louis Barber also was an unlicensed driver. Barrus found that the driver of the Toyota was licensed but he could not drive the Cadillac because he had to care for the Toyota. Meanwhile, the two New York State Troopers who arrived on the scene were directed by Barrus to examine the Chevette and obtain information using the license plate and registration as source materials. When they did so, the troopers observed a shotgun on the front seat. The troopers seized it, finding a round in the chamber and the safety in the "off" position. This was the car that Barrus observed defendant's unlicensed cousin driving before the cousin walked over to the Toyota.

When asked why he detained the defendant to facilitate the canine search,...