U.S. v. Vanhoesen

Page 335

552 F.Supp.2d 335

UNITED STATES of America, Plaintiff, v. Raymond VANHOESEN, a/k/a Sham, and Jermaine Vanhoeson a/k/a Waleek, Defendants.

No. 1:06-CR-411 (LEK).

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

May 12, 2008.

Paul D. Silver, Office Of United States Attorney, Albany, NY, for Plaintiff.

Gaspar M. Castillo, Castillo & Associates, Albany, NY, for Defendant Raymond Vanhoesen.

MEMORANDUM-DECISION AND ORDER¹

LAWRENCE E. KAHN, District Judge.

Defendant Jermaine VanHoesen ("Defendant") is accused of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 846 and, together with his co-defendant Raymond VanHoesen, conspiracy to possess with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Indictment (Dkt. No. 12). On March 11, 2008, an evidentiary hearing was held to determine whether there was probable cause for Defendant's warrantless arrest on February 20, 2003 and, accordingly, whether evidence seized that day, including drugs and cash, must be suppressed.

I. Background

Defendant was arrested on February 20, 2003 in Albany, NY. Defendant maintains that on that date he drove to the Charter School in Albany to pick up someone named Reno Conley and give him a ride, as a favor to his cousin. After Defendant arrived at the location on Second Street and while he was waiting for Conley, a black SUV with tinted windows approached. The SUV contained police officers who had set up a "rip" operation, using an informant to arrange a drug deal. Defendant backed his car up through an alley to escape, supposedly fearing that the car contained assailants attempting to shoot him, as had happened before. In doing so, Defendant backed into a different police car which was blocking the alley and which had its emergency lights on. Defendant fled the area and was allegedly observed throwing something from the window. Defendant pulled over a short while later on Clinton Avenue and was taken into custody. Police officers collected items, from the vehicle and the person of Defendant, including cocaine, a cell phone, pager, cash, and paperwork. Police also later found a quantity of cocaine on North Swan street, where Defendant allegedly tossed the item.

II. Analysis

A. The Initial Stop of Defendant's Vehicle on Second Street and the Subsequent Arrest on Clinton Avenue

1. Standard of Law for Probable Cause

"A warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer's presence, is consistent with the Fourth Amendment if the arrest is supported by probable cause." Maryland v. Pringle, 540 U.S. 366, 370, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), quoted by U.S. v. Baldwin, 496 F.3d 215, 220 (2d Cir.2007). "Probable cause is `a fluid concept ... not readily, or even usefully, reduced to a neat set of legal rules.'" Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir.2007) (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Probable cause "requires only such facts as make wrongdoing or the discovery of evidence thereof probable." Id. at 157. If "there is no dispute as to what facts were relied on to demonstrate probable cause, the existence of probable cause is a question of law for the court." Id. (internal citations omitted).

"Probable cause is not a particularly demanding standard." United States v. Solomonyan, 452 F.Supp.2d 334, 343 (S.D.N.Y.2006). Probable cause merely "requires an officer to have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.2006) (internal citations omitted). Probable cause is determined by looking at what facts the officer had available at the time of, and immediately prior to, arrest, Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir.2002).

2. The Officers' Information

Defendant alleges that the information leading to the police presence by his car was an unsubstantiated statement from an unreliable informant. However, the testimony at the evidentiary hearing showed that there was significant justification for the police presence by Defendant's car, for the subsequent approach and chase of Defendant, and for the ultimate arrest.

The testimony of Sergeant Roberts established that Defendant's arrest stemmed from a "rip-off operation planned with a confidential informant. Roberts Test. (Dkt. No. 68). The informant, who had been taken into custody on an outstanding warrant, offered to call some drug suppliers he had conducted business with in the past, in exchange for Sergeant Roberts notifying the District Attorney's office that the informant provided information. Id. at 9. After unsuccessfully attempting to call one alleged supplier, the informant and Sergeant Roberts agreed to target an individual named Sham, who was allegedly the informant's typical drug supplier. Id. at 10-11. Sergeant Roberts was already familiar with Sham. Id. at 11. Because Sham (allegedly an alias for codefendant Raymond VanHoesen) was not doing business at the time due to pending court action, the operation focused instead on an individual named "Homie" who, according to the informant, had taken over Sham's business. Id. at 11. The informant stated that he had dealt with Homie on a few occasions, described Homie's physical appearance and stated that Homie typically drove a white Chevrolet Blazer-type vehicle of 1990's vintage with a black tire mount on the back hatch. Id. at 12-13. The informant also described the typical "meet" location and transaction procedure for buying drugs from Homie. Id. at 13.

Along with the informant, Sergeant Roberts called the number provided by the informant for Homie's pager and entered the informant's cell phone number, along with a code: "eight zero zero." Id. at 15. According to the Government, Defendant then called the informant's cell phone, confirmed the informant's identity, and agreed to meet at the Second Street meet location. Id. at 15-16. Defendant then called again to confirm that the informant wanted "the eight" that had been put in the pager before. Id. at 16. Subsequently, the informant called the cell phone Defendant had been using and stated "I'm 75 short," which the informant told Sergeant Roberts was a code confirming that the deal would happen. Id. at 18. Defendant then responded "okay." Id.

Sergeant Roberts testified that, along with nine other officers placed around the meet location, he and the informant parked on Second Street in Albany to observe Homie's arrival Id. at 20. After approximately fifteen minutes, Defendant arrived at the meet location driving a white Chevrolet Blazer. Id. at 23-24. Defendant then called the informant's cell phone and asked where he was. Id. At Sergeant Roberts' directive, a black Blazer with Detectives Monte and Vincent pulled in front of Defendant's vehicle, blocking the exit to the street. Id. at 25; Vincent Test, at 68-69 (Dkt. No. 68). Detective Vincent exited the vehicle and began to approach Defendant, with both his bullet-proof vest, marked "POLICE" and his badge (on a neck chain) visible. Roberts Test, at 25-26 (Dkt. No. 68); Vincent Test, at 69-70 (Dkt. No. 68). Detective Vincent recognized Defendant and noted that Defendant's eyes became wide upon seeing him, possibly indicating Defendant's recognition of Detective Vincent. Id. at 69, 72. At that point, Defendant's vehicle began to move down the alleyway, in reverse, away from Detective Vincent. Roberts Test. (Dkt. No. 68) at 26; Vincent Test. (Dkt. No. 68) at 73-74.

After Defendant started backing up through the alley, Detective Vincent got back in his vehicle, which Detective Monte drove down the alley, following Defendant. Vincent Test. (Dkt. No. 68) at 74. Detective Vincent observed the vehicle driven by Defendant strike a vehicle occupied by Sergeant Chambers, which was located at the end of the alley on Third Street. Id. Detective Vincent characterized the condition of Sergeant Chambers' vehicle after the collision as "heavily damaged" and "pretty much undriveable." Id. at 75. The vehicle struck by Defendant had emergency lights flashing. Id. at 74, 80; Monte Test. (Dkt. No. 68) at 111. After the collision, Defendant drove quickly from the scene, leading Detectives Vincent and Monte on a chase down Third Street, North Swan Street, Livingston Street, and Ten Broeck Street before finally pulling over on Clinton Avenue. Id. at 75-76. At that point, Defendant was arrested.

3. Probable Cause to Arrest Defendant on Second Street

Probable cause exists if, under the totality of the circumstances, there are "facts as make wrongdoing or the discovery of evidence thereof probable." Walczyk v. Rio, 496 F.3d at 157. Where an informant's statements form the basis of a law enforcement officer's assessment of probable cause, the informant's "veracity, reliability and basis of knowledge" are among several relevant considerations to be balanced, as is the extent to which the informant's statements are corroborated by independent police work. Illinois v. Gates, 462 U.S. 213, 230, 241-2, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see United States v. Gagnon, 373 F.3d 230, 236 (2d Cir.2004); Caldarola v. Calabrese, 298 F.3d 156, 162-63 (2d Cir.2002). Nonetheless, the absence of a "proven track record [of truthfulness or accuracy] with the police" is an insufficient basis to doubt the informant's veracity. United States v. Canfield, 212 F.3d 713 (2d Cir.2000) (citation omitted). Information provided by a named informant is generally considered more reliable than information provided by an "anonymous tipster." See Canfield, 212 F.3d at 719; see also United States v. Salazar, 945 F.2d 47, 50 (2d Cir.1991) (informant who speaks directly to officers is more accountable than anonymous tipster and therefore likely more reliable). If an informant's information has been ...