US v. Bold

• Decision Date: 24 June 1993
• Docket Number: No. 92 CR 1335 (ERK).,92 CR 1335 (ERK).
• Citation: 825 F. Supp. 25
• Parties: UNITED STATES of America, Plaintiff, v. Steven BOLD, Defendant.
• Court: U.S. District Court — Eastern District of New York

825 F. Supp. 25

UNITED STATES of America, Plaintiff, v. Steven BOLD, Defendant.

No. 92 CR 1335 (ERK).

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

June 24, 1993.

Zachary W. Carter, U.S. Atty., E.D.N.Y., Brooklyn, NY by Judith Leib, Asst. U.S. Atty., for plaintiff.

Legal Aid Soc., Federal Defenders Unit, Brooklyn, NY by Thomas Farrell, for defendant.

MEMORANDUM AND ORDER

KORMAN, District Judge.

On November 20, 1992, an anonymous 911 caller reported that three black males were sitting inside a gray, four door Cadillac parked in the White Castle parking lot on the corner of Pennsylvania and Wortman Avenues in Brooklyn, a "high crime area." According to the caller, one of the car's occupants wore a hooded sweatshirt and was armed with a gun. The police dispatcher broadcast this information at 4:20 p.m. and three law enforcement officers responded promptly. New York City Housing Authority Police Officers Ferris and Brown, the first two who arrived at the scene, observed a "beat-up" gray Cadillac in the southwest corner of the small parking lot, eight parking spaces away from the restaurant. They parked their patrol car some distance behind the vehicle, at an angle that they hoped would block any escape by the Cadillac and simultaneously enable them to approach on foot without being seen.

As the two officers approached, they observed that all of the windows, including the rear windshield, were darkly tinted. The tinted glass made it impossible to see inside the vehicle.¹ When they got to the passenger side of the car, Officer Brown opened the unlocked rear door, observed two men sitting in the front seat, and ordered them out of the vehicle. When he gave that command — "Gentlemen, please step out of the car" — he could not see the hands of the passenger or "what was in the front seat." Suppress Hr'g Tr. at 25-26, April 27, 1993.

In response to Officer Brown's command, the two men "did not hesitate to open the front door" as Officer Brown "moved to close the rear door." Id. at 26. When the passenger, Scott Burt, opened up his door, Officer Brown "could see him and his hands and ... his lap and he stepped right out" of the Cadillac. Id. As Burt stepped out of the car, Officer Brown observed a pile of cash falling from Burt's lap and from under his sweatshirt. A frisk of Burt disclosed that he was unarmed.

A contemporaneous frisk of Steven Bold, who exited from the driver's side, revealed that he also was unarmed.² Nevertheless, Bold was escorted to the front of the vehicle and held, spread-eagle, over the hood. Bold was forced to remain in this restrained position for almost twenty-five minutes until the officers ultimately placed him under arrest. He was permitted to stand normally only when he was questioned briefly by other law enforcement officers who responded to the scene.

Shortly after the two occupants were removed from the vehicle, Officers Fusco and Kuhlmeier of the 75th precinct joined their fellow officers in the parking lot. Peering into the open doors of the Cadillac, Officer Fusco observed a large quantity of cash strewn all over front floor and seat. He also observed on the front floor what initially appeared to be a handgun, but was later determined to be only a toy. When Fusco questioned Bold about these items, Bold explained that he had just "hit the numbers" and that the toy gun belonged to his son.

While some of the other officers on the scene proceeded to conduct a more extensive search of the vehicle for weapons, Officer Kuhlmeier approached Bold and asked him to produce his license, registration, and insurance information. When Bold informed him that he could not produce these items, Kuhlmeier took defendant's wallet and searched it for some other form of identification. The search uncovered various credit cards bearing different names as well as two picture IDs, each bearing a picture of Bold, but imprinted with a different name.

Sometime during the encounter, Officer Kuhlmeier recalled hearing about a bank robbery that had occurred earlier on his tour of duty. Because of the possible connection between the robbery and the cash in the Cadillac, he radioed for a description of the robbery suspect and was told that the suspect was a thin black male, approximately 6' 1" tall, wearing a long tweed overcoat and carrying a briefcase. Having discovered both a long tweed overcoat as well as a briefcase in the back seat of the Cadillac, the officers placed Bold and Burt under arrest.

The two men were indicted subsequently for bank robbery. Burt pled guilty and is currently awaiting sentencing. Steven Bold, however, filed a pretrial suppression motion which turns principally on the propriety of the forced removal of Burt from the Cadillac. While Bold was also ordered out of the Cadillac, his forced removal did not lead to the discovery of the critical evidence in this case. On the contrary, the most critical piece of evidence — the cash that was in the Cadillac — was observed when Burt was removed from the car. The cash falling from under Burt's sweatshirt constituted a suspicious circumstance suggesting the possibility that it may have been obtained in a robbery. Because the possession of a gun is often associated with the commission of such an offense, the observation of the cash lent credence to the anonymous caller, cf. Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1973), and provided a sufficient basis to examine the passenger compartment of the Cadillac. See Michigan v. Long, 463 U.S. 1032, 1051, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983). This search led to the discovery of additional cash, the toy gun and other incriminating evidence.

The threshold issue, therefore, is whether Bold has standing to object to the order to Burt to get out of the car. Even if the forced removal occasioned by this order constituted a seizure of Burt, it did not constitute a seizure of Bold. Nevertheless, Bold was using the Cadillac with the permission of its owner and was present there when the doors to the vehicle were opened. Under these circumstances, the opening of the rear door of the Cadillac by Officer Brown and the opening of the front passenger door occasioned by Burt's forced removal from the Cadillac invaded an area in which Bold enjoyed a reasonable expectation of privacy. See United States v. Perea, 986 F.2d 633, 641-42 (2nd Cir.1993) (a courier carrying a duffel bag, which did not belong to him and which he had no right to use, had a reasonable expectation of privacy that was invaded when the duffel bag was opened). Indeed, even if Bold was aggrieved only by his forced removal from the car and the subsequent frisk, it could provide a basis to suppress his statements and the items taken from his wallet.

Because Bold may object to the evidence offered here, if it was obtained in violation of the Fourth Amendment, the suppression motion turns on the resolution of the issue of whether the information from the anonymous caller gave rise to the "reasonable suspicion" required for the police officers to open the doors of the Cadillac and order the occupants out so they could be frisked.

"Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). Notwithstanding this less demanding standard, the White Court made it clear that an anonymous tip may provide a basis for reasonable suspicion only if (1) the tip contains "`a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted'", id. at 332, 110 S.Ct. at 2417 (quoting Illinois v. Gates, 462 U.S. 213, 245, 103 S.Ct. 2317, 2335, 76 L.Ed.2d 527 (1983)) and (2) "independent corroboration by the police of significant aspects of the informers predictions." Id.³

The anonymous tip in this case does not suffice to establish reasonable suspicion under the standard set out in Alabama v. White. To the extent that it could be corroborated, the tip contained details relating to an easily obtained fact existing at the time of the tip, i.e., the presence of the Cadillac in the White Castle parking lot. The caller did not predict any future behavior of the occupants of the Cadillac and there were no other circumstances present here that tended to corroborate the tip that one of the occupants of the vehicle was carrying a weapon. The law enforcement officers had no prior information about the subjects, see Ballou v. Massachusetts, 403 F.2d 982, 986 (1st Cir.1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1024, 22 L.Ed.2d 222 (1969), there were no significant observations made at the scene that lent credence to the information supplied by the anonymous caller, see United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct.1975, 118 L.Ed.2d 574 (1992); People v. Benjamin, 51 N.Y.2d 267, 271, 434 N.Y.S.2d 144, 414 N.E.2d 645 (1980), and the car was not parked on a specific street known for the criminal activity reported by the informant, see Gomez v. United States, 597 A.2d 884, 887 (D.C.App.1991); Emily J. Sack, Note, Police Approaches and Inquiries on the Streets of New York: The Aftermath of People v. DeBour, 66 N.Y.U.L.Rev. 512, 557 (1991) ("there is a tremendous difference between designating an entire neighborhood a general `high crime area' and pinpointing a specific street corner or building known for drug sales").⁴

The anonymous caller did not even allege that the possession of the gun was illegal. Under New York law, only the unlicensed possession of a gun is a...