United States v. Andrews

1

UNITED STATES OF AMERICA, v. DASHAWN ANDREWS Defendant.

No. 20-cr-00285-ARR

United States District Court, E.D. New York

June 27, 2022

BREON S. PEACE By: Joy M. Lurinsky, John Vagelatos Attorney for the Government.

FEDERAL DEFENDERS OF NEW YORK, INC. By: Leticia M. Olivera Evan Sugar Attorneys for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

Allyne R. Ross, United States District Judge.

Presently before the Court is a Report and Recommendation (“Report”) issued by Magistrate Judge Vera M Scanlon on April 1, 2022, recommending that the Court grant defendant Dashawn Andrews's motion to suppress the firearm seized during a stop-and-frisk, as well as his post-arrest statements. Dkt. No. 106. The government objects to three factual findings in the Report. For the following reasons, the Report is affirmed in its entirety, and Mr Andrews's motion to suppress the evidence and his post-arrest statements is granted.

BACKGROUND

While familiarity with the Report is assumed, I highlight a few key details below for the ease of the reader.

At the suppression hearing before Judge Scanlon, Officer Schumacher testified that he observed Mr. Andrews crossing the street in a crosswalk sometime after 1:00 am. When Officer Schumacher and the car came abreast with Mr. Andrew, he leaned over the vehicle's center console and looked at Mr. Andrews from a direct right angle across Officer Vitale. Tr. 105:4-12, 150:24-151-3 (Schumacher). Officer Schumacher testified that he noticed a bulge in Mr. Andrews's waistband, which he followed “through the back passenger window, all the way until Mr. Andrews reached the back pillar of the car.” Tr. 110:4-8 (Schumacher). Notably, Officer Vitale, who was seated closer to Mr. Andrews and not driving the car, immediately looked for a bulge but could not see one. Tr. 8:21-9:6, 47:2-6, 47:22-48:1 (Vitale).

Officer Schumacher proceeded to stop the car at the end of the block so that the officers could observe Mr. Andrews standing on the sidewalk. Tr. 8:21-9:6 (Vitale). Officer Vitale testified that he saw Mr. Andrews put his entire forearm up to his elbow under his waistband and inside his pants, which he demonstrated for the Court. On the date of the incident, however, Officer Vitale wrote in a report that Mr. Andrews was observed “adjusting his waistband.” Tr. 60:21-25, 63:2564:10 (Vitale). About two weeks after the incident, Officer Vitale described the hand motion like that of “tucking in a shirt.” Tr. 63:22-24 (Vitale).

After exiting the police car, Officer Vitale approached Mr. Andrews alone, while Officer Schumacher and Officer McCurry searched for a possibly discarded firearm. Tr. 120:18-121:1, 207:11-25 (Schumacher). Officer Vitale testified that he began frisking Mr. Andrews at his upper chest, rather than between his legs where he allegedly suspected the gun might be, to keep the situation calm. Tr. 19:13-24, 74:11-19 (Vitale). Officer Schumacher testified that when Officer Vitale found the gun in Mr. Andrews's pants, he called Officer Schumacher's name in a “frantic” manner. Tr. 123:25-11 (Schumacher).

LEGAL STANDARD

A district court judge may designate a magistrate judge to conduct hearings and to submit to the Court proposed findings of fact and a recommendation as to the disposition of a motion to suppress. See 28 U.S.C. § 636(b)(1). Within 14 days of service of the recommendation, any party may file written objections to the magistrate's report. See id. Upon de novo review of those portions of the record to which objections were made, the district court judge may affirm or reject the recommendations. See id; United States v. Raddatz, 447 U.S. 667, 681-82 (1980) (“[T]he magistrate's proposed findings and recommendations shall be subjected to a de novo determination by the judge who . . . then exercise[s] the ultimate authority to issue an appropriate order.” (internal quotations and citation omitted)). The Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150 (1985).

The government timely objected to the Report, and Mr. Andrews timely replied. (Dkt. Nos. 111 & 113.

DISCUSSION

The government objects to three factual findings in the Report (1) Officer Schumacher could not see Mr. Andrews well enough to make out the alleged bulge in Mr. Andrews's waistband; (2) none of the officers could see the suspicious hand motion Mr. Andrews allegedly made; and (3) Mr. Andrews's behavior was not nervous or evasive.

With respect to the first two findings, the government claims its evidence shows that the officers observed Mr. Andrews at an adequately close distance, in well-lit areas, with an unobstructed view, and with sufficient time to see the bulge and the hand motion. In addition, it challenges the Report's adverse credibility findings against the officers who testified at the suppression hearing. The government contends that, by failing to adopt the perspective of a reasonable police officer, the Report erroneously concluded that the officers would have used different tactics if they had truly observed the bulge and the hand motion. Instead, the government argues, the Report should have credited the officers' explanation that Officer Vitale approached Mr. Andrews alone and began the frisk at his chest to avoid tipping Mr. Andrews off that the officers knew he had a firearm. Furthermore, it contends that the Report unreasonably expected the officers to recall precise details about the stop nineteen months after the incident and drew adverse inferences based on variations in their recollections of that night. At the same time, the Report minimized corroboratory evidence, given that the officers' testimony about the bulge and hand motion was consistent with where the gun was found.

Finally, the government argues that its evidence shows that Mr. Andrews's behavior- looking around while slowing down, stopping behind a fence, and walking in the opposite direction-was nervous and evasive, and therefore contributed to the officers' reasonable suspicion.

In making the foregoing objections, the government repeats many of the arguments made to and considered by the magistrate judge. See Dkt. Nos. 94 & 98. Although some courts review previously asserted arguments for clear error, see Manzanares v. Your Favorite Auto Repair & Diagnostic Ctr., Inc., No. 17-CV-5001 (MKB), 2020 WL 6390162, at *3 (E.D.N.Y. Nov. 2, 2020), appeal dismissed (Mar. 17, 2021) (collecting cases), I will review the government's objections under the de novo standard mandated by 28 U.S.C. § 636(b). See id. (conducting de novo review out of an abundance of caution).

Based on the body-camera footage and photographs from the night of the arrest, I conclude that the government's evidence supports the finding that the officers would have been incapable of observing either the bulge or the hand motion. The government's photographs show that Mr. Andrews was wearing a dark-colored sweatshirt underneath an unzipped black track jacket. Exhs. 3, 4, 5. Notably, the track jacket and sweatshirt hung over Mr. Andrews's waistband, and his sweatshirt, which was not flush with his body, had a scarf tucked underneath. Exhs. 2.2, 3, 4, 5; Tr. 18:9-19:17 (Vitale), 111:9-24 (Schumacher). Accordingly, a bulge caused by a small firearm would not have been visible to an observer while Mr. Andrews was walking at night-especially to an observer who was driving a vehicle and had limited time to look out the passenger-side window. Tr. 105:4-12, 150:24-151:3 (Schumacher). Even accepting the government's characterization of the crosswalk where Mr. Andrews was observed as “well-lit,” I find that Officer Schumacher would not have been able to see a bulge under these conditions.

Similarly, the officers would not have been able to observe, from at least 168 feet away, Mr. Andrews's hand motion while he stood behind a wrought-iron fence in a poorly lit area.

Photographs and body-camera footage depict the area where Mr. Andrews was standing enveloped in dark shadows, despite the presence of lights in the vicinity. Exhs. 2.2, 2.3, J.3-J.5. Even if no other objects had obstructed the officers' view, as the government contends, the officers would not have been able to see Mr. Andrews making the alleged hand motion.

Given these conclusions, I find no reason to depart from the Report's adverse credibility findings. Officer Vitale's decision to approach Mr. Andrews alone and begin the frisk at Mr. Andrews's chest is consistent with the Report's conclusion that none of the officers believed that Mr. Andrews had a gun. Moreover, Officer Schumacher's decision to wait for confirmation of a discarded firearm from Officer McCurry rather than assist Officer Vitale during the frisk, Tr. 120:18-121:1, 124:1-5, 207:14-17, 210:3-11 (Schumacher), belies Officer Vitale's purported suspicion that the firearm was in Mr. Andrews's pants, Tr. 19:19-24 (Vitale). Moreover, Officer Vitale's “frantic” response upon discovering the firearm contradicts his claim that he believed the firearm was located between Mr. Andrews's legs. Tr. 123:25-11 (Schumacher).

The government's rationale for why the officers did not move directly for the gun-to prevent Mr. Andrews from learning that they knew he had a firearm-is unpersuasive. Once Officer Vitale stopped Mr. Andrews and began the frisk, Mr. Andrews would have been tipped off that the officers had reasonable suspicion that he was armed. As such, the officers' testimony regarding their police tactics is unavailing.

In addition, the Report's adverse credibility determinations were “appropriately based upon inconsistent...