Opinion
No. 02 Cr. 1372 (BSJ).
July 14, 2004
Opinion
Defendant Kevin Thompson moves to suppress evidence that was recovered by New York City police officers on March 7, 2002. A suppression hearing was held on February 13, 2004. For the reasons stated below, Mr. Thompson's motion to suppress is DENIED.
BACKGROUND
At the February 13 hearing, testimony was taken from New York City police officer Captain Paul De Entremont and former New York City police officer Vincent Valentino. Based upon their testimony, which I credit, I find the following facts:
In January 2002, Captain De Entremont was involved in a "debriefing" of a recently-arrested individual named Maurice Clarke, who is one of Mr. Thompson's co-defendants in this case. Mr. Clarke, who was facing a significant amount of jail time for his arrest, agreed to provide information to Captain De Entremont. Mr. Clarke provided information regarding two separate locations that were, according to Mr. Clarke, being used for narcotics trafficking, and stated that Mr. Thompson was "connected" to one of the locations. Mr. Clarke also told Captain De Entremont that Mr. Thompson drove a black, late model Acura Legend, and had a firearm "secreted in the engine compartment area."
Based upon the information provided by Mr. Clarke, search warrants were sought and ultimately executed for the two locations. A firearm and a large amount of narcotics were recovered. Captain De Entremont disseminated the information regarding Mr. Thompson's automobile to other New York City police officers; that information was ultimately passed on to Officer Valentino, who was also provided with a photograph of Mr. Thompson as part of a HIDTA packet.
"HIDTA" stands for "High Intensity Drug Trafficking Area."
In the early hours of March 7, 2002, while in a vehicle patrolling the area with other New York City police officers, Officer Valentino heard a radio report indicating that shots had been fired in the vicinity of Bronxwood and Barnes Avenues in the Bronx. The report stated that the shots were fired from a Black Acura Legend, which was occupied by two to four black men. Officer Valentino's vehicle responded to the call and, approximately one hour after the initial report, the officers saw a Black Acura Legend in front of a nightclub in the general vicinity of where the shots were fired. When the officers pulled up next to the vehicle, Officer Valentino rolled down his window, looked into the vehicle, and recognized the driver (and only occupant) of the car as Kevin Thompson. Officer Valentino directed Mr. Thompson to step out of the vehicle and to step toward the rear of his car. At that time, the officers began to search the interior of Mr. Thompson's car and recovered currency, two-way radios and a cellular phone. Then Officer Valentino opened the hood of Mr. Thompson's car, at which time Mr. Thompson fled the scene. The officers were able to catch up to Mr. Thompson within one or two blocks. They handcuffed Mr. Thompson, brought him back to where his vehicle had been stopped, and Officer Valentino proceeded to search under the hood of the car. A black case containing a 9 mm handgun was recovered from the engine area of the car.
DISCUSSION
During a traffic stop, law enforcement officers may detain an individual for a brief period of time, order an individual out of the car, and "when police have a reasonable belief that the suspect poses a danger," then a "search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden" is permissible. Michigan v. Long, 463 U.S. 1032, 1049 (1983). However, in the absence of probable cause, police may not conduct "a full field-type search" of an automobile. Knowles v. Iowa, 525 U.S. 113, 117 (1998). The question presented here is whether the police officers had probable cause to search under the hood of Mr. Thompson's car. "The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances." Maryland v. Pringle, 124 S.Ct. 795, 800 (2003).Mr. Thompson argues that the information supplied by Maurice Clarke regarding the gun in the engine compartment was stale as of March 7, 2002, and thus could not form the basis of probable cause. Mr. Thompson also argues that the radio report did not provide sufficient information as to provide probable cause to search under the hood of Mr. Thompson's car. I agree that the information from Maurice Clarke was stale as of March 7, 2002 and that the radio report, taken alone, would not provide probable cause to conduct a full search of Mr. Thompson's car. Nonetheless, viewing that information together with other information within the knowledge of the officers, I find that there was probable cause to conduct a full search of the vehicle.
"While there is no bright line rule for staleness, the facts in an affidavit supporting a [search] must be sufficiently close in time to the [search] conducted so that probable cause can be said to exist as of the time of the search and not simply as of some time in the past." United States v. Wagner, 989 F.2d 69, 75 (2d Cir. 1993). Of course, seemingly stale information can be revitalized by additional information containing current facts.United States v. Gigante, 979 F. Supp. 959, 964 (S.D.N.Y. 1997) (collecting cases).
Here, the information provided by Maurice Clarke was a minimum of six weeks old at the time of the search, because Mr. Clarke's information (which did not specify the timeframe for his knowledge) was, at best, current as of the date of his arrest in January 2002. Defendant is correct that information that is at least six weeks old is generally too stale as to provide probable cause. See Wagner, 989 F.2d at 74 (finding six week delay rendered information stale); see also 2 Wayne R. LaFave, Search and Seizure § 3.7(a) (1996) ("Absent additional facts tending to show otherwise, a one-shot type of crime, such as possession or sale of some form of contraband, will support a finding of probable cause only for a few days at best."). However, as indicated above, this information is but one portion of the totality of the circumstances, and when all of the information known to the officers at the time of the search is viewed as a whole, probable cause existed to conduct a full search of Mr. Thompson's car.Cf. United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990) ("Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested.").
The officers were aware from the radio report that shots had been fired from a black Acura Legend, occupied by two or more black men only one hour before the officers saw a black male driving a car of that description in the vicinity of where the shots were fired — an area that Officer Valentino testified is a high crime area. Based upon these circumstances the officers had articulable suspicion, sufficient under Terry v. Ohio, 392 U.S. 1 (1968), to ask the driver to exit the car and to conduct a limited search in furtherance of their investigation of the recent shooting.
Although Mr. Thompson disputes that the officers had reasonable suspicion to stop and briefly detain Mr. Thompson based upon this information, I find that it is sufficient to meet the "rather lenient test for a stop" under the Fourth Amendment.United States v. Santana, 485 F.2d 365, 368 (2d Cir. 1973).
Once the officers realized that the driver of the vehicle was Kevin Thompson, they also knew that Mr. Thompson was a known drug dealer who had carried a gun secreted under the hood of his car in the past. All of this information, as well as all of the information regarding the shots that had recently been fired from a black Acura Legend — that is to say, the totality of the circumstances — establishes that the officers had probable cause to believe that Mr. Thompson had a gun in his vehicle on March 7, 2002. In reaching this conclusion, I find that it is of no significance that the information from Maurice Clarke was "stale" at the time of the search or that the more recent information —i.e., the information from the radio report — would not, standing alone, establish probable cause for the search of the automobile. All of the information known to the police at the time of the search must be viewed as an integrated whole in assessing whether probable cause existed. To do otherwise would improperly "focus on isolated issues that cannot sensibly be divorced from the other facts" known to the officers at the time. Illinois v. Gates, 462 U.S. 213, 235 (1983).
Conclusion
Because the officers had probable cause to believe that a gun would be found in the vehicle of Kevin Thompson on March 7, 2002, the search of the vehicle was permissible and Mr. Thompson's motion to suppress is DENIED.
SO ORDERED: