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  1. 1. UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF NEW YORKUNITED STATES OF AMERICA,-vs- CASE NO. 08-CR-519 (DNH)MESHIHA BOATWRIGHT,Defendant.NOTICE OF MOTIONPLEASE TAKE NOTICE, that upon the annexed Affidavit of Defendant, MeshihaBoatwright, and the Memorandum of Law and upon all prior pleadings and proceedingsheretofore had herein, a Motion will be made as follows:DATE, PLACE AND TIME OF MOTION: May 5, 2009 at 2:00 P.M. at the UnitedStates Courthouse in Utica, New York or as soon thereafter as counsel can be heard.TYPE OF MOTION: Defendant seeks an Order of the Court suppressing the evidenceseized, together with such other and further relief as to the Court may deem just and proper.DATED: April 16, 2009 Respectfully submitted,ALEXANDER BUNINBy: S/James F. Greenwald, Esq.Assistant Federal Public DefenderBar Roll No. 505652The Clinton Exchange, 3 Floor, 4 Clinton SquarerdSyracuse, New York 13202(315) 701-0080TO: Ransom Reynolds, Esq., AUSAMeshiha BoatwrightCase 5:08-cr-00519-DNH Document 14 Filed 04/16/09 Page 1 of 1
  2. 2. UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF NEW YORKUNITED STATES OF AMERICA,-v- CASE NO. 08-CR-519 (DNH)MESHIHA BOATWRIGHT,Defendant.MEMORANDUM OF LAW IN SUPPORT OF MESHIHABOATWRIGHT’S MOTION TO SUPPRESS THE EVIDENCEDATED: April 16, 2009 Respectfully submitted,Syracuse, New YorkALEXANDER BUNINFederal Public DefenderBy:James F. Greenwald, Esq.Assistant Federal Public DefenderBar Roll No. 505652Office of the Federal Public Defender4 Clinton Square, 3 FloorrdSyracuse, New York 13202(315) 701-0080Case 5:08-cr-00519-DNH Document 14-1 Filed 04/16/09 Page 1 of 9
  3. 3. PRELIMINARY STATEMENTMeshiha Boatwright is charged with possession with intent to distribute cocaine base, inviolation of 21 U.S.C. § 841(a)(1). This memorandum of law is submitted in support of hismotion to suppress the evidence at the center of the Indictment. Mr. Boatwright contends thatthe information relied upon to support the police officers’ search and seizure of his person is notaccurately set forth in the police reports. Instead, Mr. Boatwright argues that the true factsunderlying the search and seizure of his person, which will be set forth below, render suppressionnecessary. However, Boatwright contends that even if the facts are taken directly from the policereport, his seizure was not lawful at its inception and thus any evidence seized pursuant to thatillegality and offered by the government should be suppressed.STATEMENT OF FACTSThe Defendant in this case, Meshiha Boatwright, was illegally stopped by Syracuse PoliceOfficers as he was entering an apartment complex at 708 James Street in the City of Syracuse,New York. In his report, Officer James Mills of the Syracuse Police Department claims that heand Officer Helterline, apparently aware of previous trespasses, loitering and drug sales in thebuilding, entered an apartment building located at 708 James Street at approximately 10:45 p.m.on August 15, 2007, to check for trespassers. See Report of Officer Mills (“Report”) attachedhereto. Although the doors to the building were ordinarily locked, the officers let themselvesinto the building through an unlocked door. Id. Upon entering, the report continues, the officersheard two unidentified males involved in a verbal dispute. Id. As the officers continued enteringthe building, they “located a tenant walking into his apartment and another male, later identifiedas Meshiha Boatwright trying to sell him something.” Id. According to the report, Boatwrightthen “spun to run but Officer Helterline was right there.” Id. After being stopped, the reportCase 5:08-cr-00519-DNH Document 14-1 Filed 04/16/09 Page 2 of 9
  4. 4. continues, Boatwright apparently said that he did not live in the building and knew that he shouldnot be there, adding “I’m just trying to make a little money here.” Id. Following this statement,the officers arrested Boatwright for Criminal Trespass and upon searching him incident to thisarrest, uncovered marijuana in the right pocket of his pants, crack cocaine in his buttocks, and atotal of $153 in the pockets of his pants. Id.Mr. Boatwright vehemently denies Officer Mills’s version of the facts. See Affidavit ofMeshiha Boatwright attached hereto. He contends that he was invited into the apartmentbuilding at 708 James Street by his friend, Angel, who rented an apartment in the building. Id.As they entered the building at approximately 10:45 p.m. on August 15, 2007, Angel used aplastic key card to unlock the outer door. Id. After passing through the locked door and walkingthrough the hallway, Boatwright observed a man who he later learned was a police officerpeering through a window in the door located at the far end of the hall. Id. Before Angel andBoatwright reached Angel’s apartment, the police officers entered the building and approachedBoatwright. Id. One of the officers had a Taser weapon drawn. Boatwright was quickly spunaround and ordered to place his hands on the wall. Id. At no time were Angel and Boatwright inan argument, and at no time did Boatwright attempt to flee the scene. Id. Further, Boatwrightwas neither attempting to sell anything to Angel nor did he say “I’m just trying to make a littlemoney here,” or words to that effect. Id. What is more, Boatwright never said that he knew thathe was not permitted in the apartment building. Id. Instead, as noted above, Boatwright wasinvited into the building. Id. He had identification and showed it to the officers. Id. Finally,Boatwright never told the officers anything to the effect of “I got 10 grams of Coke in my ass.”Id. The cocaine found on Boatwright was not discovered until he was strip searched at the police2Case 5:08-cr-00519-DNH Document 14-1 Filed 04/16/09 Page 3 of 9
  5. 5. building after Boatwright was searched several times at the apartment building. Id.Mr. Boatwright now moves for suppression of certain fruits of the initial stop and searchfollowing his arrest. He respectfully submits that the officers’ initial seizure violated his FourthAmendment rights under the Constitution of the United States, in that the officer lackedreasonable suspicion to believe that Boatwright was engaged in illegal activity. Consequently,Boatwright argues that all evidence obtained as a result of his illegal seizure should besuppressed.ARGUMENTTHE SEIZURE OF MR. BOATWRIGHT VIOLATED THE FOURTHAMENDMENT BECAUSE THE POLICE OFFICERS LACKEDARTICULABLE FACTS THAT WOULD GIVE RISE TO REASONABLESUSPICION TO CONDUCT AN INVESTIGATORY SEARCH ANDSEIZURE.The Fourth Amendment to the Constitution of the United States guarantees “the right ofpeople to be secure in their persons, houses, papers, and effects, against unreasonable searchesand seizures.” U.S. CONST. Amend IV. Consistent with the Fourth Amendment, “the police canstop and briefly detain a person for investigative purposes.” United States v. Sokolow, 490 U.S.1, 7 (1989) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Such a detention is known as a Terrystop, and requires that “the officer [have] a reasonable suspicion supported by articulable factsthat criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” Sokolow, 490U.S. at 7 (quoting Terry, 392 U.S. at 30).To effect a Terry stop, an officer must be able to articulate something more than an“inchoate and unparticularized suspicion or ‘hunch.’” Id. at 27. The Fourth Amendmentrequires “some minimal level of objective justification” for making the stop. INS v. Delgado,3Case 5:08-cr-00519-DNH Document 14-1 Filed 04/16/09 Page 4 of 9
  6. 6. 466 U.S. 210, 217 (1984). That level of suspicion is considerably less, however, than proof ofwrongdoing by a preponderance of the evidence. Sokolow, 490 U.S. at 7.To provide a deterrent safeguard, the Supreme Court has held that evidence seized inviolation of the Fourth Amendment, absent some exception not here applicable, must besuppressed. Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643 (1961).To be legal, a Terry stop must be “justified at its inception.” Terry, 392 U.S. at 20. Boatwright’smotion to suppress the crack cocaine thus raises two questions: (1) did the officers’s actions riseto the level of a seizure under the Fourth Amendment; and (2) if Boatwright was seized, did thepolice officers have reasonable suspicion to effect the seizure.A seizure occurs when (1) a person obeys a police officer’s order to stop or (2) a personthat does not submit to an officer’s show of authority is physically restrained. United States v.Swindle, 407 F.3d 562, 572 (2d Cir. 2005). A police officer’s order to stop constitutes a seizureif “a reasonable person would have believed that he was not free to leave,” United States v.Mendenhall, 446 U.S. 544, 554 (1980), and the person complies with the officer’s order to stop,Swindle, 407 F.3d at 572. A seizure implicating the protections of the Fourth Amendment alsooccurs when a police officer, “by means of physical force or show of authority, has in some wayrestrained the liberty of a citizen such that he is not free to walk away.” Terry, 392 U.S. at 19.There can be little question that Boatwright was seized. After entering the apartmentbuilding and before reaching his friend’s apartment, Boatwright was approached by a policeofficer carrying a Taser. He was then physically spun around and ordered to place his hands onthe wall. It is hard to imagine a more demonstrable show of authority and restraint of liberty.Therefore, this Court should find that Boatwright was seized within the meaning of the Fourth4Case 5:08-cr-00519-DNH Document 14-1 Filed 04/16/09 Page 5 of 9
  7. 7. Amendment.1This Court must next consider whether the officers had reasonable suspicion to seizeBoatwright. As noted above, Boatwright adamantly contradicts Officer Mills’s report. Hisaccount, as given in his sworn affidavit, is strikingly at odds with the version related in OfficerMills’s report. In contradistinction to Officer Mills’s account, Boatwright specifically recallsentering the apartment building at 708 James Street at the invitation of his friend and residentJamie. Far from arguing, Boatwright and his friend Jamie had planned to visit in Jamie’sapartment that evening. Consequently, Boatwright was lawfully in the building and, as such, inno way committing criminal trespass under New York Penal Law.2Prior to reaching Jamie’s apartment, however, Boatwright was confronted by a policeofficer, who approached him with a drawn Taser weapon and quickly spun him around, orderingBoatwright to place his hands against the wall. The officer then searched Boatwright’s personbased on nothing more than a hunch that he was in the building illegally. In short, Boatwrightcontends that the officers, operating on nothing more than a hunch that he was engaged in illegalactivity, seized and searched him without reasonable suspicion. Consequently, this Court shouldsuppress the evidence collected as a result of his illegal seizure.Even if accepting the narrative offered in James Mills’s police report, this Court shouldThat Boatwright was seized by the officers is true whether this Court accepts Officer1Mills’s account or Boatwright’s own account of the events. According to Officer Mills’saccount, Boatwright was seized at the point in time when he attempted to leave the building butwas prevented from doing so by Officer Helterline.Boatwright was eventually charged with Criminal Trespass in the Third Degree, which2makes it a crime for a person to “knowingly enter[] or remain[] unlawfully in a building or uponreal property which is fenced or otherwise enclosed in a manner designed to exclude intruders.”N.Y. Penal Law § 140.10.5Case 5:08-cr-00519-DNH Document 14-1 Filed 04/16/09 Page 6 of 9
  8. 8. still suppress the evidence as directly resulting from an illegal seizure. Officer Mills claims thathe and Officer Helterline entered the apartment complex and immediately overheard two malesinvolved in a verbal dispute. Importantly, Officer Mills does not say which two males wereinvolved in the dispute, nor does he say that Mr. Boatwright was one of the males. Also absent isany indication of what the two men were saying. Officer Mills then claims that he saw a malewalking into his apartment and another male trying to sell him something. Again, Officer Millsaccount is sketchy at best. He never provides the identity of the male entering his apartment, nordoes he say which apartment the male entered. Curiously, even without identifying the male orthe apartment number, Officer Mills claims that the male entered “his” apartment. How heknows this is a matter left entirely unaddressed. Also missing from Officer Mills account is anyindication of how he knew the male later identified as Boatwright was “trying to sell [the manwho entered an apartment] something,” especially as Officer Mills had just entered the building.These statements are purely conclusory.Taken as a whole, then, the facts as Officer Mills knew them upon entering the buildingand seeing Mr. Boatwright were as follows: Officer Mills heard two unidentified men in what hedescribed as a verbal dispute and later saw one man, not necessarily one of the men involved inthe dispute, entering an apartment and another man, again not necessarily one of the meninvolved in the dispute, in the apartment hallway. These facts hardly rise to the level ofreasonable suspicion.Once his account is properly analyzed, it becomes apparent that Officer Mills relied ontwo facts to seize Boatwright: (1) Boatwright was in an apartment which had “multiple trespass,loitering and drug sale and drug usage complaints,” and (2) Boatwright, without being ordered to6Case 5:08-cr-00519-DNH Document 14-1 Filed 04/16/09 Page 7 of 9
  9. 9. stop, attempted to leave the building after another man walked into the apartment next toBoatwright. The alleged fact that Boatwright was present in an apartment that Officer Millscharacterizes as having “multiple trespass, loitering and drug sale and drug usage complaints”does not by itself support a finding of reasonable suspicion that Boatwright was engaged or aboutto engage in criminal activity. See, e.g., Illinois v. Wardlow, 528 U.S. 119 (2000) (“Anindividual’s presence in an area of expected criminal activity, standing alone, is not enough tosupport a reasonable, particularized suspicion that the person is committing a crime. . . . the factthat the stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations ina Terry analysis.”).The same is true of the alleged fact that upon the officers’ entry into the building,Boatwright attempted to leave. It is certainly true that flight in the face of lawful police authorityis a factor to consider in the totality of circumstances. See, e.g., Illinois v. Wardlow, 528 U.S.119 (2000) (“[U]nprovoked flight is simply not a mere refusal to cooperate.”). It is equally true,however, that unless ordered to stop, a person is free to leave the presence of police officers. SeeWayne R. LaFave, Search and Seizure § 9.5(f) at 521-23 (4th ed. 2004) (collecting cases). Seealso Tracey L. Meares & Bernard E. Harcourt, Transparent Adjudication and Social ScienceResearch in Constitutional Criminal Procedure, 90 J.Crim.L & Criminology 733, 786-92 (2000)(finding that while the ratio of stops to arrests in New York City is 9:1 generally, the ratio forminorities in high crime areas is 45:1, which “is suggestive that in high-crime urban communitieswhere the population is disproportionately minority, flight from an identifiable police officers is avery poor indicator that crime is afoot.”). Even taken together, the fact that Boatwright was in ahigh crime area and attempted to leave the building after the person he was talking to entered his7Case 5:08-cr-00519-DNH Document 14-1 Filed 04/16/09 Page 8 of 9
  10. 10. apartment is hardly indicative of criminal activity. Moreover, Officer Mills provides noindication that Boatwright’s apparent attempt to leave the building was in response to seeing twopolice officers. Therefore, even if Officer Mills’s account is accepted, this Court should stillsuppress the evidence collected pursuant to the illegal seizure.CONCLUSIONBased on the above analysis, the all evidence obtained as a result of the seizure ofMeshiha Boatwright should be suppressed. Alternatively, Boatwright requests a hearing on theissue.DATED: April 16, 2009 Respectfully submitted,ALEXANDER BUNINFederal Public DefenderBy: S/James F. GreenwaldAsst. Federal Public DefenderBar Roll No. 505652Office of the Federal Public Defender4 Clinton Square, 3 FloorrdSyracuse, New York 13202(315) 701-0080TO: Ransom Reynolds, Esq., AUSAMeshiha Boatwright8Case 5:08-cr-00519-DNH Document 14-1 Filed 04/16/09 Page 9 of 9
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