United States v. Alleyne

573 F.Supp.3d 861

UNITED STATES of America, Plaintiff,

v.Sharif ALLEYNE, Defendant.

20-CR-266 (AMD) (RER)

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

Signed November 23, 2021

Drew Godfrey Rolle, United States Attorney's Office, Brooklyn, NY, for Plaintiff.

Kannan Sundaram, Public Defender, Federal Defenders, Brooklyn, NY, for Defendant.

MEMORANDUM DECISION AND ORDER

ANN M. DONNELLY, United States District Judge:

The defendant is charged with violating 18 U.S.C. § 922(g), being a felon in possession of a firearm. Before the Court is his motion to suppress a gun recovered during a May 15, 2019 arrest,¹ as well as statements the defendant made shortly after his arrest that day and when he was arrested on federal charges on July 14, 2020. A suppression hearing was held on April 15 and 19, 2021. The parties submitted post-hearing briefing, and I heard oral argument on September 16, 2021, after which the parties submitted additional post-hearing briefing. For the reasons that follow, the defendant's motion is granted in part and denied in part.

BACKGROUND²

I. May 15, 2019 Arrest

In May of 2019, Police Officers Carlos Herrera,³ Brian Doyle and Conway Hughes were assigned to the Brooklyn North Borough Crime team. Herrera, a nine-year veteran of the NYPD, had been on the Brooklyn North Anti-Crime team for approximately seven months, and had made approximately 100 arrests for gun possession over the course of his career with the NYPD. (April 15, 2021 Tr. at 63-64.)⁴ On May 15, 2019, the officers were patrolling the Crown Heights neighborhood in Brooklyn to address an "uptick" in felonies, including shootings and robberies. (Id. at 16:5-8.) The officers were wearing body cameras; Herrera's was in the middle of his chest.⁵ (ECF No. 20.) At approximately 11:15 p.m., they saw a car parked on the sidewalk in front of a sign that read, "No Standing." (April 15, 2021 Tr. at 16:10-24, 27:4-10, 72:11-20.) Three men near the car were drinking what appeared to be alcohol, (id. at 17:21-23, 73:16-22, 74:8-14), and as the officers approached the group, Herrera and Doyle smelled alcohol. (Id. at 17:21-25, 75:9-11.) Doyle also smelled marijuana and saw the men smoking. (Id. at 17:10-20.)

Doyle, who got to the group first, focused on the three men outside the car because they were drinking; the defendant, who was sitting in the car, was not "committing the violations." (Id. at 20:19-24.) As Herrera followed Doyle with his flashlight, (id. at 19:10-23), he saw the defendant sitting in the driver's seat of the car, with the door open and one of his legs outside. (Id. at 76:16-77:11.)

Herrera then saw the defendant move his right hand, as though he was "pushing something in front of his pants, pushing down something" "inside the groin." (Id. at 77:12-78:9.) Herrera thought that the defendant might have a gun because in his experience, "a lot of people who carry guns, they usually put it in their waistband or on the side or in the front of his body." (Id. at 78:23-79:1.) Herrera said to Doyle, "He put something down there," (id. at 22:4-9), and directed the defendant to step out of the car. (Id. at 79:22-81:5.) As he and Doyle patted the defendant's waist area, Herrera saw a "big bulge, a wide bulge" in the defendant's groin area. (Id. ) He touched the bulge and felt the barrel of a gun, (id. at 81:6-10), telling Doyle that the defendant was "good," which Doyle understood to mean that the defendant had a gun. (Id. at 81:11-14.) The defendant said, "You got me." (Id. at 81:15-17.) As Herrera started to handcuff him, the defendant struggled, knocking Herrera's body camera to the ground. (Id. at 81:20-82:11, 87:23-88:4.) After the officers managed to handcuff the defendant, (id. at 23:23-25), Hughes told Herrera, "It's down on the leg." (Id. at 29:13-16.) Herrera found the gun below the defendant's knee. (Id. at 82:11-83:3.) The officers then put the defendant in their car.

At that point, one of the men outside the car—Ainsworth Ferril—asked Doyle, "Can I just take my bottle and get out of here?" (Id. at 30:20-21.) Doyle drove the defendant's car to the precinct, (id. at 31:7-13), and did an inventory search of the car, finding a bottle of Hennessy under the front passenger seat. (Id. at 31:14-32:6.)⁶

Ainsworth Ferril testified for the defense.⁷ On May 15, 2019, he met the defendant and two other men on St. Marks Avenue. (April 19, 2021 Tr. at 57-59.) The defendant's car was in a spot that was "technically" "not a park," because "[y]ou can get a ticket if you leave it there." (Id. at 84:19-22.) He was not drinking or smoking marijuana. (Id. at 67:3-21.) Police officers pulled up and asked what Ferril was doing. (Id. at 65:8-10.) Ferril responded, "Nothing," and they drove away. (Id. at 65:8-23.) But "not too long after," the officers returned, and one officer frisked him, (id. at 65:23-66:17), and went into his pockets. (Id. at 66:10-67:2.) As Ferril faced the officer, (id. at 90:7-11), another officer approached the defendant. (Id. at 68:12-69:7.) The officer asked the defendant "the same questions [the other officer] asked [Ferril]," like "you got any weapons," and the defendant "lifted his shirt." (Id. ) Ferril did not see the defendant touch or put anything in his waistband. (Id. at 69:8-18.) The officers pulled the defendant out of the car and searched him. (Id. at 69:18-22.) The defendant struggled with the officers, (id. at 69:23-70:5), and was arrested. (Id. at 70:6-8.)

a. Body Camera Footage

Footage from the three officers’ body cameras shows the defendant's car in front of a sign that reads, "No Standing Anytime;" the car is partially on the sidewalk and partially in the street on an area painted with white stripes, and three men are standing outside the car. (ECF Nos. 20-1 ("Ex. A") at 0:00-0:27; ECF No. 20-2 ("Ex. B") at 0:00-0:19, 2:45-3:03.) The driver's side door is open and the defendant is seated in the driver's seat with one leg outside the car; there is a cup on the hood of the car. (Ex. A at 0:26-0:28; ECF No. 20-3 ("Ex. C") at 0:46-0:49.) Doyle approaches Ferril and pats down his waist area. (Ex. C at 0-0:22.) As Herrera walks toward the car, the defendant leans to his left, slightly out of the car, and shifts in his seat. (Ex. A at 0:27-0:32.) Herrera aims his flashlight at the defendant's groin area. (Ex. A at 0:32-0:38; Ex. B at 0:26-0:32.) When the defendant lifts up his sweatshirt, Doyle also shines his flashlight into the car. (Ex. B at 0:32-0:38; Ex. C at 0:29-0:35.)

At that point, Doyle helps the defendant out of the car, and Doyle and Herrera pat down the defendant's clothing in his waist area, beginning with the sweatshirt pouch. (Ex. A at 0:32-0:42; Ex. B at 0:34-0:47; Ex. C at 0:33-0:46.) When Doyle starts to pat the defendant's chest area, Herrera redirects Doyle's flashlight back to the defendant's waist, and then pats a square-shaped bulge in the defendant's groin area. (Ex. A at 0:42-0:47.) The officers turn the defendant to face the car, and start to handcuff him.⁸ (Ex. A at 0:47-0:58; Ex. B at 0:58-1:45; Ex. C at 0:49-1:04.) The defendant initially cooperates, but suddenly lurches and struggles, knocking Herrera's body camera to the ground.⁹ (Ex. A at 0:58-2:44; Ex. B at 0:58-1:45; Ex. C at 1:04-1:45.) After the officers subdue the defendant, (id. ),¹⁰ Hughes says, "It's right here, on the leg." (Ex. B at 1:45-1:51; Ex. C at 1:45-1:50.) Herrera asks, "The leg?" and Hughes replies, "Yeah." (Ex. B at 1:50-1:55; Ex. C at 1:45-1:50.) Herrera says, "Yeah, I got it right here, he's got it right here." (Ex. B at 1:53-1:57; Ex. C at 1:50-1:52.)

Next, the officers move the defendant to their car. (Ex. A at 2:22-2:48; Ex. B at 2:10-2:54.) Herrera asks, "Whose car is that?" and the defendant responds, "That's my friend's car," and asks if he could give his friend the keys. (Ex. A at 3:45-3:58.) The defendant tells the officer that the keys are in his sweatshirt pocket; the officer removes the keys and gives them to another officer. (Id. at 4:00-4:15.) The defendant complains that the handcuffs are tight, and tells Herrera, "I just got shot." (Id. at 4:25-4:40.) Herrera responds, "I got you what you're doing when I approached you, ok? Alright my man? That's fine, that's fine, that's fine. I understand that, I understand that. But I saw you, what you put in your pockets, okay? Under in here. Alright? That's why I said step out. And you tried to run from me." (Id. at 4:40-4:47.) As Herrera tells the defendant that he saw what the defendant put "under in here," Herrera pats the defendant's lower waist area. (Id. )

Meanwhile, Ferril asks Doyle, "Can I get my, can I get my bottle?" and Doyle responds, "Just give us a second." (Ex. B at 3:50-4:00.) Ferril responds, "Just get me my bottle and [unintelligible]." (Id. )

II. July 14, 2020 Arrest

On July 10, 2020, the Honorable Roanne L. Mann issued a federal arrest warrant authorizing the defendant's arrest for violating 18 U.S.C. § 922(g), being a felon in possession of a firearm. (ECF No. 2.) Detective James Grzelak of the NYPD—who swore out the affidavit for the warrant—knew about the circumstances of the defendant's May 15, 2019 arrest and had spoken to detectives about it. (April 19, 2021 Tr. 28:5-7.) He also knew that the defendant had a pending case in Queens County. (Id. at 28:8-10.) On July 14, 2020, members of the Homeland Security Investigations ("HSI") Violent Gang Task Force, including Grzelak, went to the defendant's apartment to arrest him on the federal charge. (Id. at 6:12-8:8.) Grzelak "knew [the defendant] had an attorney in [a] pending case" so the team was "just going to pick [the defendant] up, [and] transport him straight to court." (Id. )

When they arrived at the defendant's apartment, the defendant asked why he was being arrested. (Id. at 9:7-17.) Grzelak explained that "the charges were 922(g), felon in possession," and "[i]mmediately, I followed with Miranda . I read him Miranda ." (Id. ) The defendant interrupted Grzelak as he advised him of his rights, and...