United States v. Miller

THE UNITED STATES OF AMERICA, v. SHA KEN MILLER, Defendant.

18-CR-395 (NGG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

May 10, 2019

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Defendant Sha Ken Miller moves to suppress evidence that was seized from a black Kia Spoilage (the "Kia"), arguing that police officers twice searched the car in violation of his Fourth Amendment rights and that, at a minimum, the court should hold an evidentiary hearing. (See Def. Mot. to Suppress ("Mot.") (Dkt. 22); Def. Suppl. Letter in Supp. of Mot. ("Suppl. Letter") (Dkt. 30).) For the following reasons, Defendant's motion to suppress is DENIED.

I. BACKGROUND

On July 11, 2018, two New York Police Department ("NYPD") officers saw Defendant near 80 Monument Walk in Brooklyn, NY (the "Building"). (Compl. (Dkt. 1) ¶ 2.) The officers were in plainclothes and an unmarked police vehicle. (Id.) At the time, Defendant was the subject of an NYPD investigation card (the "I-card"). (Id.). The I-card notified NYPD officers that Defendant was a suspect in connection with another crime, but did not indicate that there was probable cause to arrest him. (Id.) When the officers first saw him, they noticed that Defendant matched the description of the individual from the I-card. (Id.) Defendant was standing outside of the Kia, which was idling near the entrance to the Building. (Id.)

The Kia belonged to Eddie Wanamaker, although Sierra Wanamaker is "the primary driver and user of the [Kia], with [Mr. Wanamaker's] permission." (Feb. 26, 2019 Decl. of Eddie Wanamaker (Dkt. 26-1) ¶¶ 2-3.) Mr. Wanamaker allows Ms. Wanamaker to loan the Kia to others "if necessary" (id. ¶ 5; see also Feb. 26, 2019 Suppl. Decl. of Sierra Wanamaker ("Sierra Wanamaker Suppl. Decl.") (Dkt. 26-2) ¶ 2), and Ms. Wanamaker had loaned the Kia to Defendant on several other occasions earlier that year. (Sierra Wanamaker Suppl. Decl. ¶ 3.) He was using the Kia with her permission when the officers saw him with it on July 11, 2018. (Id. ¶ 4; Feb. 28, 2019 Sha Ken Miller Decl. ("Miller Decl.") (Dkt. 27-1) ¶¶ 1-2.)

The Government alleges that the officer driving the patrol car, Officer Ramos, drove the car around the block. (Compl. ¶ 3.) As the patrol car approached the entrance to the Building, Officer Ramos and the officer sitting in the front passenger seat ("Officer Two") saw Defendant sitting in the driver's seat of the Kia and talking to a man (the "Unidentified Man") through the front passenger window. (Id.) The Kia was still idling, and the officer observed the Unidentified Man reach into the Kia and touch hands with Defendant. (Id.) He then walked away with a closed fist. (Id.) "Based on their training and experience, the officers believed that [Defendant] and the Unidentified Man had engaged in a hand-to-hand narcotics transaction." (Id.)

Officer Ramos drove the patrol car around the block again, and pulled up behind the Kia, which was still idling. (Id. ¶ 4.) Defendant was still seated in the passenger seat. (Id.) Officer Ramos approached the driver's side window and, according to the Government, smelled a strong odor of marijuana coming from the Kia. (Id.) He asked Defendant to get out of the car and searched the Kia. (Id.) He found marijuana inside a backpack that was on the floor of the Kia's backseat, behind the central console. (Id.) The officers arrested Defendant, and transported him back to the 88th Precinct stationhouse for arrest processing. (Id. ¶ 5.) Officer Two drove the Kia back to the stationhouse to be inventoried. (Id.) Much of the interaction between Defendant and the officers is documented by a camera worn by one of the officers on the scene. (See Video FileNo. SM000254, filed in hard copy as Ex. B to Mot. ("SM000254"); Video File No. SM000251, filed in hard copy as Ex. B to Opp'n ("SM000251").).

Officer Ramos then conducted an inventory search of the Kia. (Id. ¶ 6.) During the search, he noticed that the fuse box compartment under the Kia's steering wheel was loose. (Id.) He opened the compartment, finding a .25 caliber Beretta semiautomatic pistol concealed inside the fuse box. (Id.) The gun was loaded with eight rounds of ammunition in the magazine and one in the chamber. (Id.) Much of this inventory search was also documented by a camera worn by one of the officers on the scene. (See Video File No. SM000253, filed in hard copy as Ex. C to Mot. ("SM000253")).

On July 17, 2018, Magistrate Judge Cheryl L. Pollak issued an arrest warrant for Defendant based upon an affidavit and complaint. (See Compl.) Defendant was arrested on July 20, 2018. (Opp'n at 8.) On July 31, 2018, a grand jury issued a three-count indictment charging Defendant with: (1) distribution of and possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841; (2) possessing a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (3) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). (Indictment (Dkt. 9).) Defendant moved to suppress the marijuana and the gun on January 18, 2019 (Mot.), and the court heard oral argument on the motion on February 20, 2019 (Feb. 20, 2019 Min. Entry). Both parties then filed supplemental briefing, and the motion was fully briefed on March 6, 2019. (See Suppl. Letter; Gov't Resp. in Opp'n to Mot. to Suppress ("Suppl. Opp'n") (Dkt. 29).)

II. LEGAL STANDARD

The Fourth Amendment protects persons against "unreasonable searches and seizures." U.S. Const. amend. IV. Generally, evidence that is seized pursuant to an unreasonable search orderived from such a search must be suppressed. James v. Illinois, 493 U.S. 307, 311-12 (1990). "[S]earches and seizures conducted without a warrant are presumptively unreasonable"; however, "several exceptions to the warrant requirement have been fashioned when circumstances demand an immediate police response." United States v. McCargo, 464 F.3d 192, 196 (2d Cir. 2006) (internal citations omitted).

"A defendant moving for the suppression of evidence seized following a search is not automatically entitled to an evidentiary hearing." United States v. Garcia, No. 18-CR-178 (AT), 2018 WL 3407707, at *2 (S.D.N.Y. June 5, 2018) (quoting United States v. Barrios, 210 F.3d 355, at * 1 (2d Cir. 2000) (summary order)). Instead, an evidentiary hearing on a motion for the suppression of evidence is appropriate where a defendant "supports his motion with moving papers that are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question." Barrios, 210 F.3d at *1 (alteration adopted) (citation and quotation marks omitted). In other words, a defendant is entitled to an evidentiary hearing where there is "a contested issue of material fact." United States v. Harun, 232 F. Supp. 3d 282, 285 (E.D.N.Y. 2017) (citation omitted). Arguments made solely by defense counsel in motion papers "cannot by themselves create a factual issue." United States v. Mottley, 130 F. App'x 508, 510 (2d Cir. 2005) (summary order); see also United States v. Spencer, No. 06-CR-413 (DLL). 2016 WL 6781225, at *5 (E.D.N.Y. Nov. 15, 2016) ("[A] statement in an attorney's brief is insufficient to create a factual dispute to justify a hearing." (citations omitted)). Courts in this circuit "have 'repeatedly' denied motions to suppress without a hearing 'where defendants have failed to provide affidavits alleging facts based on personal knowledge.'" United States v. Perryman, No. 12-CR-0123(ADS), 2013 WL 4039374, at *6 (E.D.N.Y. Aug. 7, 2013) (quoting United States v. Larranga Lopez, No. 05-CR-655 (SLT), 2006 WL 1307963, at *3 (E.D.N.Y. May 11, 2006)).

III. DISCUSSION

Defendant seeks to suppress evidence discovered during two warrantless searches of the Kia.¹ First, Defendant challenges the initial search of the Kia, which uncovered the marijuana. (See Mot. at 3-4.) Second, Defendant challenges the inventory search of the Kia performed at the precinct, which uncovered the firearm. (See id. at 4-6.) The court addresses each in turn.

A. The Initial Search of the Kia

First, Defendant claims that the initial search of the Kia was unreasonable, and asks the court to suppress both the marijuana and the firearm as fruits of that unreasonable search. (See Mot. at 3-4.) There was no warrant for the search, but the Government argues that the "automobile exception" applies here and justifies the search. (See Opp'n at 17.) Pursuant to the automobile exception, the police may search a car—or containers inside a car—"without a warrant if their search is supported by probable cause." California v. Acevedo, 500 U.S. 565, 579 (1991). Defendant contends, however, that this exception does not justify the search because the officers did not have probable cause to suspect that a crime had been or was currently being committed. (See Mot. at 3.)

"[P]robable cause exists where the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that evidence of a crime will be found in the place to be searched." United States v. Gaskin, 364 F.3d 438, 456 (2d Cir. 2004)(quotation marks and citations omitted) (alterations adopted). "This standard does not demand certainty but only a fair probability that contraband or evidence of a crime will be found." Id. at 45 (quotation marks and citations omitted). Further, "experience and training may allow a law enforcement officer to discern probable cause from facts and circumstances where a layman might not." Id. (citations omitted). This analysis "is limited to facts known by the . . . officer at the time." Cordero v. City of New York, 282 F. Supp. 3d 549, 561-62 (E.D.N.Y. 2017) (quoting Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 2006)) (quotation marks omitted).

The Government argues that the officers had...