U.S.v.Hernandez

United States District Court, W.D. New YorkApr 14, 2001
00-CR-6E(F) (W.D.N.Y. Apr. 14, 2001)

00-CR-6E(F)

April 14, 2001

Jeffrey A. Lazroe, Esq., Buffalo, NY, for Defendant.

Denise E. O'Donnell, United States Attorney, Joel L. Violanti, Assistant United States Attorney, Buffalo, NY, for the Government.


REPORT and RECOMMENDATION


LESLIE G. FOSCHIO, United States Magistrate Judge.

JURISDICTION

This case was referred to the undersigned by the Honorable John T. Elfvin on February 10, 2000 for pretrial matters. The case is presently before the court on Defendant's omnibus motion filed May 15, 2000 seeking, inter alia, to suppress evidence and statements (Docket Item No. 8).

BACKGROUND

Defendant Michael Hernandez, who has three prior felony convictions, is charged in a three count indictment returned on January 11, 2000. Specifically, Defendant is charged with unlawfully and knowingly possessing, in and affecting commerce, a firearm, as a prior felon, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2) 2113(a) (Count I); unlawfully and knowingly possessing, in and affecting commerce, ammunition, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2) (Count II); and knowingly possessing a stolen firearm which had been transported in interstate commerce in violation of 18 U.S.C. § 922(j) and 924(a)(2) (Count III). On May 15, 2000, Defendant filed an omnibus motion requesting various forms of discovery and also seeking to dismiss the Indictment based on failures and inaccuracies contained in the grand jury instructions, and to suppress evidence and statements obtained following the arrest, arguing that the stop of the vehicle was not supported by probable cause.

The motion is supported by the attached Affidavit of Jeffrey A. Lazroe, Esq. ("Lazroe Affidavit"), and exhibits. In opposition to the motion, the Government filed, on June 5, 2000, its Response to Defendant's Motion to Suppress (Docket Item No. 9) ("Government's Response"). Following oral argument on June 8, 2000, the non-dispositive aspects of the omnibus motion were resolved on the record, and decision was reserved on Defendant's request to dismiss the Indictment based on alleged inaccuracies of the grand jury proceedings and to order disclosure of the grand jury proceedings minutes.

On June 16, 2000, a suppression hearing was held with respect to Defendant's request to suppress evidence seized and statements taken. The proceeding was adjourned and recommenced on November 7, 2000 as a result of witness unavailability.

Following oral argument, Defendant filed on February 23, 2001, a memorandum of law in support of the motion to suppress (Docket Item No. 18) ("Defendant's Memorandum"). On March 13, 2001, the Government filed a memorandum of law opposing Defendant's motion to suppress (Docket Item No. 20) ("Government's Memorandum"). Further oral argument was deemed unnecessary.

Based on the following, Defendant's motion to suppress evidence should be DENIED and to dismiss the Indictment should be DENIED.

FACTS

At 8:45 P.M. on December 6, 1999, the Buffalo Police Department received a telephone call to their 911 complaint system from an unknown individual. 911 Call T at 2. The call was placed from a telephone registered to one Juan Hernandez, residing at 43 York Street in the City of Buffalo. (T. 11-12). The caller stated:

References to "911 Call T" are to the transcript of a telephone call placed at 8:45 P.M. on December 6, 1999 to the Buffalo Police Department's 911 system. A copy of that transcript was submitted as Exhibit A at the Suppression Hearing.

Nothing in the record indicates that Juan Hernandez is related to Defendant.

"T." references are to the pages of the transcripts of the Suppression Hearing conducted on June 16 and November 7, 2000 (Docket Items Nos. 13 and 14).

There's a guy here with a handgun. He's in a gray Nissan. . . It's a guy with a gun down on West Avenue, Porter, West on a gray Nissan. . . . He's in a car. It's a gray Nissan, it's a plate number BV4 — It's a Nissan, like a Sentra, and the guy got an arm, armed. He has a gun with him. . . . We're at 43 York. . . . [H]e just passed by now, you know, trying to act up — he's going south on West right now. He's just like crossing between Maryland and — . . . . It's a — it's a four — door, yes. It's going with a woman driver, and the car is going down, it's going south right now on West. And he has like a beard. . . . It's a Spanish male; white, with a goatee. . . . Hair on the face. . . [H]e walked into the Half-Way; he was like, looking for trouble; he just got back in the car with somebody. We don't even know the guy.

911 Call T at 2-5.

Upon questioning by the 911 Operator, the 911 caller, who refused to identify himself, confirmed that the Spanish male passenger had the gun. 911 Call T at 3-4.

At 8:46 P.M., the 911 Operator sent out a radio car transmission over Buffalo Police Radio advising all Buffalo police officers that a Peurto Rican male with a gun was observed riding in the front passenger seat of a gray four door vehicle driven by a female and heading south on West Avenue. 911 Call T. at 5. At 8:50 P.M., Buffalo Police advised the Radio Dispatcher that they had a gray Mazda four-door vehicle bearing license plate numbers BB426F stopped at the corner of Whitney and Virginia Streets. 911 Call T. at 6. The police at the scene radioed for back-up as there would be three arrests and there was a loaded handgun. 911 Call T. at 7. Another police vehicle headed to the scene. 911 Call T. at 8.

Buffalo Police Officers Mark Locicero ("Officer Locicero"), Thomas J. O'Brien ("Officer O'Brien"), and Raymond Vidal ("Officer Vidal"), testified at the suppression hearing on the Government's behalf. T. at 7-132. Testifying for Defendant were Pedroe Cordero ("Cordero") and Charles Edward Watkins ("Watkins"). T. 139-203.

Defendant, Michael Hernandez's testimony was limited to the issue of whether he had standing to seek suppression of the search of the vehicle. T. at 203-14.

Officer Vidal testified that he was on duty with Officer Dan Horan ("Officer Horan) on December 6, 1999 and, while leaving the police station located at 672 Main Street at 8:45 P.M., he received the initial radio dispatch regarding the 911 telephone call from 43 York Street reporting that a Spanish male with a gun was seen riding with a female in a gray four-door vehicle traveling south on West Avenue. T. at 55-56. Officer Vidal proceeded to Virginia Street and began traveling west toward its intersection with West Avenue, believing the suspect vehicle would eventually reach that intersection. T. at 56. Upon approaching the intersection of West and Virginia, Vidal observed a gray four-door Mazda traveling south on West Avenue enter the intersection and turn right, thus traveling in the same direction as Vidal, who had yet to cross the intersection. T. at 56-57. The suspect vehicle traveled down Virginia Street stopped in front of 224 Virginia, which is located at the intersection of Virginia and Whitney Streets. T. at 57-58. A delicatessen store was also located at that corner. T. at 59.

Officer Vidal testified that he did not stop the suspect vehicle, T. at 58, 74, but that the vehicle "stopped on its own." T. at 97. Vidal pulled his patrol vehicle behind the stopped vehicle and activated the overhead lights because he intended to further investigate the passengers. T. 58. Vidal observed a male exit from the passenger side of the vehicle and proceed to walk away in a hasty manner, although he looked back at the patrol vehicle. T. at 60. Officer Vidal twice advised the passenger to return to the suspect vehicle, but each time the passenger stated "No habla, no habla," indicating he did not speak or understand English. T. at 60-61. Vidal recognized Defendant and advised Defendant that he knew, from previous dealings, that Defendant spoke English. T. at 61-62. Defendant then recognized Vidal and voluntarily walked toward him, asking Vidal, "What's up?" T. at 62. Vidal informed Defendant they were looking for someone with a gun and placed Defendant on the back of the suspect vehicle and performed a pat down search. T. at 62-63. Vidal testified that besides Defendant, the suspect vehicle was occupied by a Hispanic male who had operated the vehicle, and a third passenger, a female, was in the rear seat. T. at 63-64.

As Officer Vidal patted down Defendant, Officers Locicero and O'Brien arrived in a separate patrol vehicle. T. at 64. Officer Locicero had responded to the dispatch from the 911 telephone call system. T. at 64. Locicero walked to the passenger side of the vehicle and looked inside through the front passenger door which remained open. T. at 17, 64. The vehicle's overhead domelight was on and Locicero shined his flashlight into the interior. T. 17. Locicero testified that without moving anything inside the vehicle, he observed the a handgun lying in plain view with its barrel protruding from underneath the front passenger seat. T. at 17-18. Upon observing the weapon,

Locicero called to the other officers to handcuff the vehicle's occupants. T. at 18, 112. Locicero unloaded the handgun, secured it and brought it to Police Headquarters where its seizure was recorded on a chain of evidence form. T. at 18-19.

In contrast, Cordero, testifying on behalf of Defendant, stated that around 8:00 P.M. on December 6, 1999, Defendant and Johnson picked him in Defendant's gray four-door Mazda up at the corner of West Avenue and Maryland Street. T. at 141, 152, 153.

Cordero testified that Defendant was married to Cordero's aunt. T. at 140. Although Johnson had been driving the vehicle, Johnson got into the back seat, Cordero assumed the driver's seat. T. at 143. Defendant, who Cordero recalled was intoxicated, remained in the front passenger seat. T. at 144, 152.

Cordero testified that he continued driving along West Avenue to its intersection with Virginia Street where he made a right-hand turn onto Virginia Street. T. at 155.

According to Cordero, after he turned onto Virginia Street, a police car began tailgating and continued to tailgate until Cordero stopped the vehicle at a store at the intersection of Virginia and Whitney Streets. T. at 155-56. Cordero initially testified that he pulled the vehicle over at the direction of the tailing police car, T. at 154, but later testified that he pulled the vehicle over because he intended to enter the store at the corner of Virginia and Whitney Streets to purchase cigarettes. T. at 157-58, 163. However, Cordero continued to assert the police car had its lights on before he pulled the vehicle over. T. at 158.

According to Cordero, after he stopped the vehicle, Defendant exited on his own accord and began walking toward the store, T. at 158-59, but the police grabbed Defendant and put him against the back of the vehicle. T. at 160. Cordero maintains that a police officer next grabbed him, pulled him out of the vehicle, and placed him on the trunk of the vehicle on the driver's side, facing toward the interior of the vehicle with the right side of Cordero's face against the hood. T. at 160-61, 166-69, The police held Cordero's arms back, but did not pat him down or handcuff him. T. at 162.

Cordero testified that that the vehicle's windows were not tinted, and were free of any stickers or other obstructions. T. at 162. From his position behind the vehicle with his face down on the hood, Cordero observed a police officer conduct an extensive search of the vehicle's interior, including the back seat, the glove compartment and underneath the seats. T. at 164-65. Cordero did not recall that the police officer retrieved the handgun from underneath a seat. T. at 164.

According to Cordero, the police did not speak throughout the incident until after they found the handgun. T. at 164. Cordero further testified that the handgun was not found in plain view but, rather, Officer Locicero performed an extensive search of the vehicle, including the glove compartment. T. at 147. Cordero also stated that after Locicero found the handgun, the police removed Johnson who remained seated in the vehicle's rear seat. T. at 162, 167.

Charles Edward Watkins ("Watkins"), an acquaintance of Defendant, testified that at 10:30 P.M. on December 6, 1999, he saw Defendant riding in the vehicle traveling directly in front of him on West Avenue. T. at 180-81, 185, 188. Watkins recognized the vehicle because he had driven it for Defendant on prior occasions. T. at 180-81, 189. Watkins followed Defendant to the intersection of West Avenue and Virginia Street, T. at 182, which is a four-way stop. T. at 57. A police vehicle was stopped at a stop sign on Virginia Street. T. at 182. Watkins observed Defendant's vehicle turn right onto Virginia Street, traveling in the same direction as the police vehicle. T. at 182, 191. The police vehicle was the next to proceed through the intersection, and followed Defendant's vehicle. T. at 182, 192. According to Watkins, as soon as the police vehicle crossed the intersection, it activated its overhead lights and sped up. T. at 182.

Watkins later clarified that although the police vehicle sped up, its overhead lights and siren were not activated at that time. T. at 192-93. Watkins, curious as to whether Defendant was to be pulled over by the police, but wanting to avoid the possibility of being questioned by the police, as Watkins did not have a driver's license, drove a few blocks to Maryland and Tupper Streets, parked his vehicle, and then ran back toward the store at the corner of Virginia and Whitney streets. T. at 182, 192, 193, 196.

Watkins testified that upon reaching the scene, he stood in the doorway of the store located at the intersection of Virginia and Whitney Streets. T. at 200. From there, Watkins observed the police patrol vehicle's overhead lights were on, and a female passenger was located in the back seat of the police vehicle, while Cordero and Defendant remained outside speaking with the police. T. 183, 184, 196, 200.

According to Watkins, one of the police officers was searching the vehicle from the passenger side, including the glove compartment, the back seats and underneath the seats. T. at 183, 201. Watkins said he observed a police officer pull a handgun out from underneath a seat, declaring "look what I found." T. at 183-84. 201.

Officer Vidal testified that once Officer Locicero found the handgun, Vidal decided to arrest all three occupants of the vehicle and charged with possession of a firearm without a permit. T. at 66-67. According to Vidal, he knew that Defendant has prior drug-related convictions in New York. T. at 67, 68-69. As he handcuffed Defendant, but before giving the Miranda warning, Defendant spontaneously stated that the handgun was his and that he was willing to "take the rap for it." T. at 64-65, 112.

Defendant was placed in the patrol vehicle driven by Officer O'Brien for transportation to Police Headquarters. T. at 65, 119-20. The other two suspects, identified as Cordero and Sandra Johnson, were handcuffed and placed in Officer Vidal's patrol vehicle for transportation to Police Headquarters. T. at 65.

Officer Vidal maintains he read the Miranda warning as Defendant was sitting in the back seat of O'Brien's patrol vehicle. T. at 66. Vidal testified he read the warning off a card he carried, T. at 66-68, and Officer O'Brien testified he recalled observing Vidal read the Miranda warning to Defendant. T. at 121. Vidal recalled that Defendant indicated he understood his rights. T. at 67. In contrast, Cordero testified that none of the suspects were read their rights, although Defendant was not placed in the same patrol vehicle as Cordero and Johnson, and Cordero could not tell whether the Miranda warning was read to Defendant inside Officer O'Brien's vehicle. T. at 171.

Once the three suspects were handcuffed and placed in the patrol cars, arrangements were made to impound the vehicle and the suspects were taken to central booking. T. at 69. Officer Vidal testified that when they arrived at central booking, Defendant made additional statements pertaining to the recovered handgun which Vidal recorded on a 710.30 form ("the 710.30 form"). T. at 70. Included on the 710.30 form are statements allegedly spontaneously made by Defendant while seated in the back of Officer O'Brien's patrol vehicle, and after having been warned of his Miranda rights by Officer Vidal. The statements include:

A copy of the 710.30 form completed by Officer Vidal in connection with Defendant's arrest is attached as Exhibit A to the Government's Affidavit in Opposition to Defendant's Motion to Suppress (Docket Item No. 9).

I respect yous [sic], but this is the ghetto. Them niggers shot my brother so yeah, I got a gun. So what do I get for a gun? One year? So I go to a country club. I'll be out in 8 months. I'll go there, lift weights and get healthy.

710.30 form.

In response to Officer O'Brien's inquiry as to who shot Herndandez's brother, Defendant replied, "Angel and David. Them niggers from Rhode Island. They shot him. The Feds are investigating it. Det. Figeuroa knows about it." 710.30 Form. Upon O'Brien's further inquiry as to where Defendant obtained the handgun, Defendant replied:

I got it off the street. I know you guys are doing your job. The gun's mine. I'll tell the judge that hell, one year, 8 months in a country club. I've been upstate. This will be easy to do.

710.30 form.

Defendant's testimony was limited to whether he had standing to challenge the stop and search of the vehicle. T. at 203-14. Defendant testified that he purchased the vehicle, a 1992 gray, four-door Mazda, in September 1999 from his father's friend for $1500. T. at 204. According to Defendant, he registered the vehicle in his sister's name because he had neither a driver's license nor insurance. T. at 205. According to Defendant, although he maintained the vehicle, he rarely drove the vehicle, but had others drive him around in it. T. at 205-06. Defendant stated that after purchasing the vehicle, he let his sister use it for a couple of months, and his niece had borrowed it several days before the incident on December 6, 1999. T. at 209-13. Defendant did not clean the vehicle. T. at 214.

Cordero testified that he was with Defendant when Defendant purchased the vehicle. T. at 140. Cordero stated that upon purchasing the vehicle, the title was initially put in Defendant's name, but that it was later registered to Defendant's sister. T. at 140-41.

DISCUSSION

Defendant moves to suppress evidence and statements obtained as a result of the search of the vehicle on December 6, 1999. Defendant's Memorandum at ___.

Defendant maintains that the anonymous 911 emergency system telephone call placed at 8:45 P.M. on December 6, 1999, was without the requisite indicia of reliability or specificity to provide probable cause to stop the vehicle. Defendant's Memorandum at 2-5. Defendant further asserts that the evidence seized and statements made following the stop must be suppressed as fruits of the poisonous tree, i.e., the illegal stop of his vehicle. Id. at 5-7. The Government contends that Defendant lacks standing to contest the search of the vehicle. Government's Response at 7. The Government also maintains that the Buffalo Police did not stop the vehicle; rather, the vehicle's driver pulled over on its own initiative to enter the store located at the corner of Virginia and Whitney Streets. Government's Memorandum at 5. According to the Government, absent a police stop, there can be no seizure in violation of the Fourth Amendment. Id.

Alternatively, the Government maintains that if there was a stop, then such stop was based on a reasonable suspicion that the vehicle was involved in some illegal activity, thereby justifying an investigatory stop. Id. at 5-8. The Government further asserts that subsequent to a legal investigatory stop, Officer Locicero observed the handgun in plain view. Id. at 9-10.

1. Standing to Suppress

The Government contends that Defendant lacks standing to challenge the vehicle search as the affidavit submitted by Defendant is insufficient to establish that he had a reasonable expectation of privacy in the vehicle. Government's Response at 7.

Defendant maintains that although the vehicle was registered to his sister, he had his sister's permission to use and maintain the vehicle in his possession and that as his sister did not live in New York State, she had no access to the vehicle. Defendant's Memorandum at 7; Affidavit of Michael Hernandez ("Defendant's Affidavit"), attached to Defendant's Omnibus Motion (Docket Item No. 8).

Fourth Amendment rights are personal rights which may not be vicariously asserted. United States v. Padilla, 508 U.S. 77, 81-82 (1993) (per curiam); Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). A defendant must have a reasonable expectation of privacy in the area to be searched in order to contest the validity of a search. Katz v. United States, 389 U.S. 347 (1967). A defendant's personal Fourth Amendment right has not been violated when he conceals contraband in the property of another and that property is subsequently searched unless he had a reasonable expectation of privacy in the property of the person which was searched. Rawlings v. Kentucky, 448 U.S. 98 (1980). With regard to a vehicle, "the issue is whether the claimant `had a reasonable expectation of privacy in the area of the vehicle searched.'" United States v. Pena, 961 F.2d 333, 337 (2d Cir. 1992) (quoting United States v. Paulino, 850 F.2d 93, 97 (2d Cir. 1988), cert. denied, 490 U.S. 1052 (1989)). The Second Circuit has enunciated a two-prong test to determine whether such reasonable expectation of privacy exists:

First, the person challenging the search must demonstrate a subjective desire to keep his or her effects private; and, second, the individual's subjective expectation must be one that society accepts as reasonable.

Paulino, supra, at 97.

A defendant is not required to own a vehicle in order to have a Fourth Amendment privacy interest protected against government invasion as such an interest may be held by the borrower of an automobile. United States v. Pena, 961 F.3d 333 (2d Cir. 1992). "To mount a challenge to a search of a vehicle, defendants must show, among other things, a legitimate basis for being in it, such as permission from the owner." United States v. Ponce, 947 F.2d 646, 649 (2d Cir. 1991), cert. denied, 503 U.S. 943 (1992). In such circumstances, the issue is whether the defendant "had a reasonable expectation of privacy in the area of the vehicle searched. Paulino, supra, at 97 (holding defendant, back seat passenger of vehicle stopped in high-crime area, had no reasonable expectation of privacy in area under rubber mat on vehicle's rear floor from where counterfeit money was seized). See Pena, supra, at 338 (remanding for suppression hearing to develop facts pertaining to whether defendant had sufficient expectation of privacy interest in vehicle door panel from which police seized cocaine when defendant had borrowed vehicle from an acquaintance so as to avoid having to walk home in rain and defendant intended to purchase vehicle the next day).

In the instant case, Defendant stated in his affidavit that although he purchased the vehicle in which he was riding on December 6, 1999, he registered it to his sister as Defendant did not have a license. Defendant's Affidavit, ¶ 4. According to Defendant, his sister gave him permission to use the vehicle and maintain it in his possession. Id.

Further, Defendant's sister lived in another state and had no access to the vehicle. Id. At the suppression hearing, Defendant elaborated that he had neither a driver's license nor insurance. T. at 205. According to Defendant, although he maintained the vehicle, he rarely drove the vehicle, but had others drive him around in it. T. at 205-06.

Defendant stated that after purchasing the vehicle, he let his sister use it for a couple of months while she was living in Buffalo after separating from her husband with whom she had been living in another state. T. at 209-13. However, Defendant's sister had reconciled with her husband and was no longer living in New York. T. at 209-13.

Cordero's testimony was consistent insofar as he testified that he was with Defendant when Defendant purchased the vehicle, and that the title was registered to Defendant's sister. T. at 140-41.

This record establishes that Defendant, although he was the passenger of the vehicle, had some expectation of privacy in the vehicle and, thus, has satisfied the first, subjective prong of the analysis. Paulino, supra, at 97. As to the second prong, whether Defendant's expectation of privacy was reasonable, the court notes that the handgun was found not inside some compartment of the vehicle requiring significant effort to access, such as a door panel. Rather, the handgun was found underneath the front passenger seat, an area which the testimony indicates was readily accessible to Defendant. On this basis, the court finds that Defendant's expectation of privacy as to the area underneath the front seat was reasonable. Accordingly, Defendant had a sufficiently reasonable expectation of privacy in the vehicle such he has standing to challenge the search underneath the front passenger seat.

2. Stop of the Vehicle

Defendant contends that the Buffalo Police did not have the reasonable suspicion necessary under Terry v. Ohio, 392 U.S. 1 (1968), to justify the investigatory stop of his vehicle on December 6, 1999, and that the handgun seized following the stop as well as Defendant's admissions regarding his ownership of the handgun must be suppressed as fruits of the illegal stop. Lazroe Affidavit, ¶¶ 39-42, 45, 52-61; Defendant's Memorandum at 5-7. In particular, Defendant maintains that the anonymous tip placed over the 911 emergency line was insufficient to establish probable cause. Id. The Government maintains that the Buffalo Police did not stop Defendant's vehicle. Government's Memorandum at 5. Alternatively, the Government maintains the Buffalo Police had reasonable suspicion to believe Defendant's vehicle may have been involved in criminal activity, which justified their approach of the vehicle for investigation. Id. at 5-7.

The Fourth Amendment protects the rights of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Arizona v. Evans, 115 S.Ct. 1185, 1191 (1995). This right "shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched or the thing to be seized." U.S. Const. Fourth Amend. Nevertheless, it is basic that the Fourth Amendment protects only against unreasonable searches. Elkins v. United States, 364 U.S. 206, 222 (1960). The Supreme Court has analogized police roving-patrol stops to the on-the-street encounter addressed in Terry v. Ohio, holding that the Fourth Amendment requires such stops be supported by "specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that criminality is afoot. Delaware v. Prouse, 440 U.S. 648, 655-56 (1979) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975) (footnote omitted)).

Preliminarily, testimony at the suppression hearing establishes that the police did not pull over Defendant's vehicle at the corner of Virginia and Whitney Streets. Rather, Cordero testified that he voluntarily stopped Defendant's vehicle because he intended to enter the store located on the corner to purchase cigarettes. T. 157058, 163.

Cordero's testimony on that point is consistent with Officer Vidal's testimony that Vidal did not stop the suspect vehicle, T. at 58, 74, but that the vehicle "stopped on its own." T. at 97.

However, Cordero's testimony that the overhead lights on Officer's Vidal's patrol vehicle were activated before Cordero stopped Defendant's vehicle is not credible. First, such assertion is inconsistent with Cordero's testimony that he stopped Defendant's vehicle because he intended to purchase cigarettes at the nearby corner store, rather than because he believed the police patrol vehicle was pulling him over.

Nothing in the record would support a finding that Cordero could have believed that if the overhead lights were activated, that the patrol vehicle intended to pull over any vehicle other than the one Cordero was driving as both Cordero and Watkins place the patrol vehicle directly behind Defendant's vehicle once Cordero turned onto Whitney Street. T. at 155-56 (Cordero testifying the patrol vehicle was tailgating); T. at 182, 192 (Watkins testifying the patrol vehicle was the next vehicle through the intersection of West Avenue and Whitney Street, and traveled directly behind Defendant's vehicle). It is also unlikely that if the patrol vehicle's overhead lights were activated before Cordero voluntarily stopped Defendant's vehicle, that Defendant would have exited the vehicle to enter the store, as Cordero testified. T. at 158-59. Further, although Watkins initially testified that as soon as the police vehicle crossed the intersection, it activated its overhead lights and sped up, T. at 182, Watkins later clarified that although the police vehicle sped up, its overhead lights and siren were not activated at that time. T. at 192-93. On this record, the court finds Vidal's testimony that he activated the patrol vehicle's overhead lights after pulling the patrol vehicle behind Defendant's stopped vehicle, T. 58, to be more credible on this key issue.

Cordero's credibility is further impaired by his insistence that while face down on his right side on the trunk of the vehicle, he was able to observe activity in the passenger seat of the vehicle. T. at 160-69; Facts, supra, at 7.

The court, therefore, finds that the Buffalo Police did not stop Defendant's vehicle; rather, Cordero stopped the vehicle on his own accord. As there was no stop of Defendant's vehicle, Defendant's Fourth Amendment rights are not implicated.

Alternatively, should the District Judge find Cordero stopped Defendant's vehicle pursuant to the direction of the Buffalo Police, the court finds the police had reasonable suspicion to justify a limited investigatory stop, as required under Terry, supra.

The threshold issue under these circumstances is whether the police dispatch issued based on the 911 emergency call received by the Buffalo Police had sufficient indicia of reliability to support a reasonable suspicion that the Defendant's vehicle was involved in some criminal activity as to justify a limited investigatory stop by the police.

As the Buffalo Police radio dispatch issued based on the 911 call did not mention that the information regarding the gun-toting suspect was provided by an unidentified informant, see 911 Call T. at 5, and as the officers were not privy to the 911 call, 911 Call T. at 81, the dispatch provided the Buffalo police officers who heard the call with a reasonable and good faith belief that a passenger in the vehicle possessed a gun.

Defendant maintains that the recent Supreme Court decision in Florida v. J.L., 529 U.S. 266 (2000), in which the Court held that an anonymous tip that an individual is carrying a gun is, without more, insufficient to justify a police officer's stop and frisk of the individual, J.L., supra, at 268, dictates a finding that the tip received over the 911 emergency telephone call system was without requisite indicia of reliability, such that the stop of the vehicle was without probable cause. Lazroe Affidavit, ¶¶ 55-61; Defendant's Memorandum at 6-7.

Although Defendant uses the term "probable cause," the question is whether the officer conducting the stop had "reasonable suspicion" to do so. J.L., supra, at 270-72.

In J.L., supra, the an anonymous caller reported to the police in an unrecorded telephone conversation that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. J.L., supra, at 268. Two police officers who were directed to respond to the call arrived at the bus stop where three black males, including one wearing a plaid shirt, were "hanging out." Id. Although aside from the anonymous tip, the officers had no reason to suspect any of the three men of any wrongdoing, and observed no firearm or threatening or unusual movements, the officers frisked the men, seizing a gun from pocket of the man garbed in plaid, and charging him with possession of a firearm in violation of various Florida laws. Id., at 268-69.

The Supreme Court held the search of the man violated the Fourth Amendment as the anonymous tip was without any indicia of reliability, did not provide any prediction as to the defendant's future behavior, and the officers did not personally observe anything giving rise to reasonable suspicion that criminal activity may be afoot. Id. at 269. The Court explained that "unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, . . . `an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.'" Id. at 270 (quoting Alabama v. White, 496 U.S. 325, 329 (1990)). Unlike the anonymous tipster in White, supra, the anonymous tipster in J.L., supra, provided no information as to the defendant's future actions which were subsequently corroborated by the defendant's actual actions, thus providing the requisite indicia of reliability. Id. at 270-71 (discussing that in White, supra, police observation of suspect's future movements established anonymous tipster's information accurately predicted such movements provided reason to believe tipster had inside knowledge about suspect, crediting tipster's assertion that suspect had cocaine). Nor did the police have any means to test the anonymous caller's knowledge or credibility as the call was not recorded. Id. at 271. As such, the Court held that the absence of any indication of reliability of the anonymous caller's tip rendered the call insufficient to provide reasonable suspicion to justify a Terry type stop. Id. The Court also declined to adopt the dissent's "firearm exception" to the general rule barring investigatory stops and frisks based on bald, anonymous tips in the interest of the safety of the police and the public. Id.

In contrast to J.L., supra, in the instant case, the police had more information of a reasonably credible quality on which to rely on than "the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about [the suspect]." J.L., supra, at 271. Specifically, the Buffalo Police received the "anonymous" tip over the 911 emergency telephone system and, had the police thought it was necessary, could have further investigated the call as the 911 system automatically traced the call to the residence of Juan Hernandez at 43 York in Buffalo. (T. at 74-78, 83-85). The caller also volunteered that his location as "43 York." 911 Call T. at 3. That it is a crime in New York to make a false police report is a palpable disincentive to place such a call without basis for malicious purposes. T. at 83-85 (Officer Vidal testifying that he had arrested several people for falsely reporting crimes and that had no gun been recovered from Defendant, the police would have further investigated the 911 caller). This is significant as "the ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability to what, years earlier, might have been considered unreliable anonymous tips." J.L., supra, at 275 (Kennedy, J., concurring). The caller also provided a foundation for his call, i.e., that he had seen the suspect carrying the gun as he exited a nearby halfway house, 911 Call T. at 4, thereby providing the police with another avenue for determining the validity of the call by checking with any halfway houses within close proximity to 43 York to determine whether a male with a gun had been present.

Defendant's reliance on Sanders v. United States, 751 A.2d 952 (D.C. 2000), in support of his position is misplaced. In Sanders, the court considered whether a information provided by an anonymous caller, who had provided accurate information of previous occasions, describing the physical characteristics of a drug dealer who was dealing out of a vehicle located at a specific intersection, provided the police with probable cause to search the trunk of the vehicle, which was located at the described intersection, although no one within the vehicle's proximity admitted ownership of the vehicle. Sanders, supra, at 953. The court, comparing the circumstances of the search to the circumstances of a case in which similar information provided by an anonymous tipster was credited with establishing reasonable suspicion justifying a Terry stop, Sanders, supra, at 954-55 (citing Ware v. United States, 672 A.2d 557, 563 (D.C. 1996)), concluded that the indicia of reliability were insufficient to support a finding of probable cause, implying that such indicia would establish the lower standard of reasonable suspicion to justify a Terry stop. Id. at 954, 956.

On this record, the court finds the 911 emergency system telephone call provided the Buffalo police responding to the call with reasonable suspicion that criminality was afoot, such that the police radio message to which Officers Vidal, O'Brien and Locicero responded, coupled with the appearance of the vehicle at the Virginia and Whitney Streets intersection, thus corroborating the caller's description of the vehicle's southerly direction, provided reasonable basis to stop the vehicle.

Nor does the fact that the Defendant's vehicle was identified in the police dispatch as a Nissan make when it was actually a Mazda undermine a finding of reasonable suspicion. As Officer Vidal explained, in response to the police dispatch, he would not have followed any gray four-door vehicle, but because Nissan and Mazda are similar automobiles insofar as "[t]hey're both foreign cars, smaller styled four doors," T. at 105, 106, Vidal decided to follow the gray four-door Mazda he encountered traveling along West Avenue in the same direction as reported in the dispatch to determine if it were the vehicle in question. T. at 105. To illustrate response to further questioning, Vidal testified that he would not have followed a gray four-door Cadillac. T. at 106.

Officer Vidal thus satisfactorily explained that, upon hearing that the police dispatch referred to the suspect vehicle as a gray, four-door Nissan, he followed the Mazda in which Defendant was a passenger because the vehicle was similar to the one described in the police dispatch.

Further, regardless of whether Defendant's vehicle stopped near the corner of Virginia and Whitney Streets because the Buffalo Police pulled it over, or because Cordero intended to enter the corner store to purchase cigarettes, Officer Vidal has reasonable suspicion to conduct a pat down search of Defendant. Both Vidal and Cordero testified that Defendant exited the vehicle on his own initiative. T. at 60, 146.

Officer Vidal testified that the male passenger proceed to walk away in a hasty manner, although he looked back at the patrol vehicle, and that when Officer Vidal called for Defendant to return, the passenger stated "No habla, no habla," indicating he did not speak or understand English. T. at 60-61. However, Vidal recognized Defendant and advised Defendant that he knew, from previous dealings, that Defendant spoke English. T. at 61-62. Defendant then recognized Vidal and voluntarily walked toward him, asking Vidal, "What's up?" T. at 62. Vidal, then acting on information transmitted in the police dispatch that a male, whose description matched defendant, was seen carrying a firearm and riding in the passenger seat of a gray, four-door foreign vehicle, and with the knowledge that Defendant had previous drug-related arrests and was not honest in claiming he did not speak English, had reasonable suspicion that Defendant was the reported suspect, such that Vidal's decision to detain and frisk Defendant was also reasonable in the interest of officer safety.

Defendant's motion to suppress on this ground should be DENIED.

Nor is there any merit to Defendant's assertion that his statements regarding ownership of the handgun should be dismissed because he was not advised of his Miranda rights. Lazroe Affidavit, ¶¶ 62-63. Miranda warnings are required to be given to a suspect interrogated while in police custody to uphold an unrepresented suspect's privilege against self-incrimination. Thompson v. Keohane, 116 S.Ct. 457, 462 (1995). It is settled that custodial interrogation of an accused may continue after the defendant has been given the Miranda warnings, but all custodial interrogation must cease once the accused has invoked his right to counsel, and custodial interrogation may not be reinitiated until counsel has been made available. Edwards v. Arizona, 451 U.S. 477 (1981).

In the instant case, Officer Vidal's testimony that he read Miranda warning to Defendant Defendant was sitting in the back seat of O'Brien's patrol vehicle, T. at 66-68, was corroborated by Officer O'Brien's testimony that he recalled observing Vidal read the Miranda warning to Defendant. T. at 121. That Officer Vidal advised Defendant of his rights under Miranda was also memorialized on the 710.30 form completed in connection with the arrest. Although Cordero testified that none of the suspects were read their rights, Defendant was not placed in the same patrol vehicle as Cordero, and Cordero admitted he could not tell whether the Miranda warning was read to Defendant inside Officer O'Brien's vehicle. T. at 171. The court thus finds that Officer Vidal advised Defendant of his Miranda rights while Defendant was placed in the back seat of Officer O'Brien's patrol vehicle. Further, Defendant does not argue, and there is no indication in the record, that Defendant's subsequent statements were other than spontaneous.

Thus, Defendant's statements were not the result of an interrogation in the absence of a valid waiver of Defendant's Miranda rights and Defendant's motion to suppress his statements on the basis that he was not advised of his rights under Miranda should be DENIED.

3. Plain View

The Government asserts that as the investigative stop of Defendant was supported by reasonable suspicion that he may be involved in criminal activity, the seizure of the firearm from underneath the front passenger seat was lawful under the "plain view" exception to the Fourth Amendment's prohibition against unreasonable searches and seizures. Government's Memorandum at 9. Defendant maintains that the plain view exception does not apply in the instant case as Officer Locicero would not have seen the handgun under the front passenger seat had he not leaned into the vehicle. Defendant's Memorandum at 5-6 (citing T. at 17-18).

Under the plain view doctrine "[i]f an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy, [although the seizure] would obviously invade the owner's possessory interest." Horton v. California, 496 U.S. 128, 133-34 (1990) (citing cases). A "plain view" exception to an otherwise applicable warrant requirement implicates concerns relative to seizure rather than searches. Horton, supra, at 134. However, as "in the vast majority of cases, any evidence seized by the police will be in plain view at least at the moment of seizure," it is necessary to distinguish "circumstances in which plain view has legal significance [with regard to the warrant requirement] rather than being simply the normal concomitant of any search, legal or illegal." Horton, supra, at 134-35 (bracketed text added). In particular, the "plain view" doctrine will justify a warrantless seizure of incriminating evidence and contraband provided the police officer's initial intrusion was lawful, such that the officer can justify being in a position to make the discovery, and that the officer must have a reasonable belief that the item seized is evidence of a crime. United States v. Delibac, 925 F.2d 610, 613 (2d Cir. 1991).

In the instant case, Defendant does not challenge the reasonableness of Officer Locicero's belief that the handgun seized from underneath the front passenger seat of Defendant's vehicle was evidence of a crime. The court has found that the police officers were lawfully near Defendant's vehicle, either because Cordero stopped the vehicle on his own initiative, or because the police had probable cause to pull it over, See Discussion, supra, at 15-23. Further, the Police Officers' testimony that Defendant left the vehicle's front passenger door open after exiting the vehicle to enter the nearby store is consistent with Cordero's testimony upon stopping the vehicle, Defendant exited to enter the nearby store. T. at 159. As such, the question for the court is whether Officer Locicero observed the handgun in plain view, such that its warrantless seizure was lawful, turns on whether Officer Locicero's intrusion whereby he leaned into the vehicle and shined his flashlight into the open front passenger door of Defendant's vehicle was lawful.

The law is well established that a police officer's looking through the windows into a vehicle from outside, even aided by a flashlight to illuminate the inside of the vehicle, does not constitute a "search" of the vehicle within the meaning of the Fourth Amendment. New York v. Class, 475 U.S. 106, 118 (1986) (locations inside an automobile, in plain view of persons outside the automobile, are not "subject to a reasonable expectation of privacy"); Texas v. Brown, 460 U.S. 730, 740 (1983) ("There is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers.") (citations omitted) (plurality of four Justices; other five Justices concurring in judgment and disagreeing on unrelated grounds); id. at 739-40 ("It is . . . beyond dispute that [the officer's] action in shining his flashlight to illuminate the interior of [defendant's] car trenched upon no right secured . . . by the Fourth Amendment."); United States v. Ocampo, 650 F.2d 421, 427 (2d Cir. 1981) (holding despite police officer's need for flashlight to illuminate the inside of a lawfully stopped car, item glimpsed was in "plain view"). As such, that Officer Locicero shined his flashlight into the interior of Defendant's vehicle does not render the plain view exception to the warrant requirement for a seizure inapplicable.

Nor does the record support Defendant's contention, Defendant's Memorandum at 5, that Officer Locicero observed the handgun only after Locicero "leaned" into the vehicle. Rather, Officer Locicero testified that he approached the open passenger door of the vehicle from the rear "and I tilted my head into the car with my — and I had my flashlight on in my hand, and I looked down, and on the floorboard I could see a barrel of a handgun protruding out from under the front passenger side seat." T. at 17-18.

Locicero responded to further questioning that he did not have to move anything to observe the barrel of the handgun, which he was able to observe from where he was standing. T. at 18. Locicero testified that after he observed the handgun, he leaned into the vehicle to pick it up. T. at 47.

The testimony presented by Defendant on this point is not persuasive. First, Cordero's testimony that from his position thrown over the driver's side of the trunk of Defendant's vehicle with the right side of his face against the vehicle he observed Officer Locicero search the vehicle's glove compartment and underneath the front passenger seat is not plausible. In particular, Locicero was at the front passenger side of the vehicle, and the female passenger, Johnson, who remained in the rear seat (T. at 162), would have impeded Cordero's view. Further, both the glove compartment and underside of the front passenger seat would have been below Cordero's line of vision from his position on the vehicle's trunk. The court notes that Johnson, the passenger who remained in the rear seat of the vehicle where the view of the front portion of the vehicle presumptively would have been more clear, did not testify, nor did the Defendant choose to do so on this issue. Further, although Watkins testified that upon reaching the scene, he observed Locicero conduct an extensive search of the vehicle which produced the gun, T. at 183, 184, 200-201, Watkins' placement of Johnson at that time as in the back seat of a police patrol vehicle, T. at 183, 184, 198, indicates that Watkins observed a search of the vehicle incident to the arrest of Defendant, Cordero and Johnson. Watkins's testimony was also inconsistent as to Cordero's location as Watkins testified that Cordero had been placed on the front of the police patrol vehicles that was located directly behind Defendant's vehicle. T. at 198-201.

This record supports a finding that Officer Locicero's seizure of the handgun is within the plain view exception to the general warrant requirement. Accordingly, Defendant's motion to suppress the handgun seized from his vehicle from evidence should be DENIED.

4. Motion to Dismiss for Irregularities in Grand Jury Proceedings and Request for Disclosure of Grand Jury Minutes

Defendant's non-dispositive request for production of the Grand Jury minutes is discussed in this Report and Recommendation in the interests of clarity.

Defendant seeks to dismiss the Indictment on the basis that (1) the evidence presented to the grand jury was insufficient to establish probable cause that the defendant had committed any crime, or that any crime had been committed, Lazroe Affidavit, ¶ 64(a); and (2) the legal instructions and comments made to the grand jury were inadequate, prejudicial and improper. Lazroe Affidavit, ¶ 64(b). Defendant also seeks the court order the production of the grand jury minutes and pertinent exhibits for in camera inspection and, ultimately, for Defendant's inspection on the ground that, absent such inspection, Defendant will not be able to fully prepare this motion. Lazroe Affidavit, ¶ 64(c) and (d).

The grand jury exists not to determine guilt or innocence, but to assess whether there is an adequate basis for bringing a criminal charge. Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972). "A grand jury is neither an officer nor an agent of the United States, but a part of the court." Falter v. United States, 23 F.2d 420, 425 (2d Cir.), cert. denied, 277 U.S. 590 (1928). To ensure a grand jury's independence, a court has very limited supervisory authority over the grand jury. United States v. Williams, 504 U.S. 36, 46-47 (1992). The limited power which federal courts may have over a grand jury is not "remotely comparable" to the power which such courts maintain over their own proceedings. Williams, supra, at 50.

Grand jury proceedings carry a "presumption of regularity," and a review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct. United States v. Torres, 901 F.2d 205, 232-33 (2d Cir. 1990); see United States v. Leung, 40 F.3d 577, 581 (2d. Cir. 1994) (acknowledging presumption of regularity attaches to grand jury proceedings)). Unsupported suspicions of grand jury abuse do not justify disturbing the secrecy of grand jury proceedings, Pittsburgh Plate Glass Co. v. U.S. 360 U.S. 395, 400-401 (1959), and it is the defendant's burden to prove that misconduct by the prosecutors before the grand jury overcame the grand jury's independence. See United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976) (defendant has the burden of demonstrating that an abuse of the grand jury process has occurred), cert. denied, 430 U.S. 969 (1977); United States v. Greater Syracuse Board of Realtors, Inc., 449 F. Supp. 887, 900 (N.D.N.Y. 1978) (defendant has difficult burden to overcome when challenging the grand jury process requiring a showing of very significant misconduct on the part of the prosecutor or other government agents).

Indeed, it is the defendant's burden "to show that `a particularized need' exists for the [grand jury] minutes which outweighs the policy of secrecy." Pittsburgh Plate Glass, supra, at 400.

Defendant argues in support of his request to examine the Grand Jury minutes that absent such opportunity, he will not be able to determine whether the Grand Jury proceedings were free from any prejudicial irregularities. Lazroe Affidavit, ¶¶ 57(d), 65-70. Such conclusory assertion, however, fails to demonstrate the existence of a particularized need for the production of any of the Grand Jury minutes. As such, Defendant has failed to rebut the presumption of regularity surrounding the Grand Jury proceedings and, accordingly, disclosure of the Grand Jury minutes is not warranted.

The Supreme Court has also held that an indictment brought by a grand jury may not be challenged on the ground that it is supported by inadequate or incompetent evidence. Costello v. United States, 350 U.S. 359, 363 (1956). See also United States v. Casamento, 887 F.2d 1141, 1182 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990).

Accordingly, even if the Grand Jury minutes demonstrate that the evidence on which the Indictment issued is inadequate or incompetent, such fact would not warrant dismissal of the Indictment.

As to Defendant's challenge to the sufficiency of the legal instructions given the grand jury, there is no requirement that federal grand jurors be instructed on the law. United States v. Zannger, 848 F.2d 923, 925 (8th Cir. 1988) (citing United States v. Kenny, 645 F.2d 1323, 1347 (9th Cir. 1981), cert. denied, 425 U.S. 920 (1981)). Accordingly, this argument must also fail.

Defendant also makes a conclusory assertion that hearsay testimony was presented to the Grand Jury. However, it is well settled that the use of hearsay testimony is permissible before a grand jury. Costello, supra, at 363. Hearsay testimony before a grand jury only raises questions about the validity of the indictment when the prosecutor misleads the grand jury into thinking it is getting first-hand testimony when it is receiving hearsay, an allegation not present in this case, or when there is a high probability that if eyewitness rather than hearsay testimony had been used, the defendant would not have been indicted. United States v. Dyman, 739 F.2d 762, 767 (2d Cir. 1984), cert. denied, 469 U.S. 1193 (1985). As there is no evidence that any hearsay was presented to the Grand Jury in this case, or that the Grand Jury's deliberations would have yielded a different result if no hearsay evidence was presented, there is no basis to dismiss the indictment based on alleged use of hearsay testimony, even if such evidence was submitted to the Grand Jury. As such, Defendant's argument on this point fails.

On this record, Defendant's request to dismiss the Indictment or, alternatively, for an order directing the Government to disclose the Grand Jury minutes to assist Defendant in determining whether to move to dismiss the Indictment based on irregularities in the Grand Jury proceedings, should be DENIED.

CONCLUSION

Based on the foregoing, Defendant's omnibus motion (Docket Item No. 8), should be DENIED as to its request to suppress evidence and statements and to dismiss the Indictment based on alleged errors in the Grand Jury proceedings.

Pursuant to 28 U.S.C. § 636(b)(1), it is hereby

ORDERED that this Report and Recommendation be filed with the Clerk of the Court.

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of service of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.

Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988). Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Government and the Defendant.

SO ORDERED.