Case 5:08-cr DNH Document 14 Filed 04/16/09 Page 1 of 1 CASE NO. 08-CR-519 (DNH) NOTICE OF MOTION

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1 Case 5:08-cr DNH Document 14 Filed 04/16/09 Page 1 of 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, -vs- CASE NO. 08-CR-519 (DNH) MESHIHA BOATWRIGHT, Defendant. NOTICE OF MOTION PLEASE TAKE NOTICE, that upon the annexed Affidavit of Defendant, Meshiha Boatwright, and the Memorandum of Law and upon all prior pleadings and proceedings heretofore 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 United States 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 evidence seized, together with such other and further relief as to the Court may deem just and proper. DATED: April 16, 2009 Respectfully submitted, ALEXANDER BUNIN By: S/James F. Greenwald, Esq. Assistant Federal Public Defender Bar Roll No rd The Clinton Exchange, 3 Floor, 4 Clinton Square Syracuse, New York (315) TO: Ransom Reynolds, Esq., AUSA Meshiha Boatwright

2 Case 5:08-cr DNH Document 14-1 Filed 04/16/09 Page 1 of 9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, -v- CASE NO. 08-CR-519 (DNH) MESHIHA BOATWRIGHT, Defendant. MEMORANDUM OF LAW IN SUPPORT OF MESHIHA BOATWRIGHT S MOTION TO SUPPRESS THE EVIDENCE DATED: April 16, 2009 Respectfully submitted, Syracuse, New York ALEXANDER BUNIN Federal Public Defender By: James F. Greenwald, Esq. Assistant Federal Public Defender Bar Roll No Office of the Federal Public Defender rd 4 Clinton Square, 3 Floor Syracuse, New York (315)

3 Case 5:08-cr DNH Document 14-1 Filed 04/16/09 Page 2 of 9 PRELIMINARY STATEMENT Meshiha Boatwright is charged with possession with intent to distribute cocaine base, in violation of 21 U.S.C. 841(a)(1). This memorandum of law is submitted in support of his motion to suppress the evidence at the center of the Indictment. Mr. Boatwright contends that the information relied upon to support the police officers search and seizure of his person is not accurately set forth in the police reports. Instead, Mr. Boatwright argues that the true facts underlying the search and seizure of his person, which will be set forth below, render suppression necessary. However, Boatwright contends that even if the facts are taken directly from the police report, his seizure was not lawful at its inception and thus any evidence seized pursuant to that illegality and offered by the government should be suppressed. STATEMENT OF FACTS The Defendant in this case, Meshiha Boatwright, was illegally stopped by Syracuse Police Officers 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 he and Officer Helterline, apparently aware of previous trespasses, loitering and drug sales in the building, 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 ) attached hereto. Although the doors to the building were ordinarily locked, the officers let themselves into the building through an unlocked door. Id. Upon entering, the report continues, the officers heard two unidentified males involved in a verbal dispute. Id. As the officers continued entering the building, they located a tenant walking into his apartment and another male, later identified as Meshiha Boatwright trying to sell him something. Id. According to the report, Boatwright then spun to run but Officer Helterline was right there. Id. After being stopped, the report

4 Case 5:08-cr DNH Document 14-1 Filed 04/16/09 Page 3 of 9 continues, Boatwright apparently said that he did not live in the building and knew that he should not 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 this arrest, uncovered marijuana in the right pocket of his pants, crack cocaine in his buttocks, and a total of $153 in the pockets of his pants. Id. Mr. Boatwright vehemently denies Officer Mills s version of the facts. See Affidavit of Meshiha Boatwright attached hereto. He contends that he was invited into the apartment building 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 a plastic key card to unlock the outer door. Id. After passing through the locked door and walking through the hallway, Boatwright observed a man who he later learned was a police officer peering through a window in the door located at the far end of the hall. Id. Before Angel and Boatwright reached Angel s apartment, the police officers entered the building and approached Boatwright. Id. One of the officers had a Taser weapon drawn. Boatwright was quickly spun around and ordered to place his hands on the wall. Id. At no time were Angel and Boatwright in an argument, and at no time did Boatwright attempt to flee the scene. Id. Further, Boatwright was neither attempting to sell anything to Angel nor did he say I m just trying to make a little money here, or words to that effect. Id. What is more, Boatwright never said that he knew that he was not permitted in the apartment building. Id. Instead, as noted above, Boatwright was invited 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 police 2

5 Case 5:08-cr DNH Document 14-1 Filed 04/16/09 Page 4 of 9 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 search following his arrest. He respectfully submits that the officers initial seizure violated his Fourth Amendment rights under the Constitution of the United States, in that the officer lacked reasonable 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 be suppressed. ARGUMENT THE SEIZURE OF MR. BOATWRIGHT VIOLATED THE FOURTH AMENDMENT BECAUSE THE POLICE OFFICERS LACKED ARTICULABLE FACTS THAT WOULD GIVE RISE TO REASONABLE SUSPICION TO CONDUCT AN INVESTIGATORY SEARCH AND SEIZURE. The Fourth Amendment to the Constitution of the United States guarantees the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. CONST. Amend IV. Consistent with the Fourth Amendment, the police can stop 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 Terry stop, and requires that the officer [have] a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause. Sokolow, 490 U.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 Amendment requires some minimal level of objective justification for making the stop. INS v. Delgado, 3

6 Case 5:08-cr DNH Document 14-1 Filed 04/16/09 Page 5 of U.S. 210, 217 (1984). That level of suspicion is considerably less, however, than proof of wrongdoing 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 in violation of the Fourth Amendment, absent some exception not here applicable, must be suppressed. 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 s motion to suppress the crack cocaine thus raises two questions: (1) did the officers s actions rise to the level of a seizure under the Fourth Amendment; and (2) if Boatwright was seized, did the police 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 person that 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 seizure if 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 also occurs when a police officer, by means of physical force or show of authority, has in some way restrained 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 apartment building and before reaching his friend s apartment, Boatwright was approached by a police officer carrying a Taser. He was then physically spun around and ordered to place his hands on the 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 Fourth 4

7 Case 5:08-cr DNH Document 14-1 Filed 04/16/09 Page 6 of 9 1 Amendment. This Court must next consider whether the officers had reasonable suspicion to seize Boatwright. As noted above, Boatwright adamantly contradicts Officer Mills s report. His account, as given in his sworn affidavit, is strikingly at odds with the version related in Officer Mills s report. In contradistinction to Officer Mills s account, Boatwright specifically recalls entering the apartment building at 708 James Street at the invitation of his friend and resident Jamie. Far from arguing, Boatwright and his friend Jamie had planned to visit in Jamie s apartment that evening. Consequently, Boatwright was lawfully in the building and, as such, in 2 no way committing criminal trespass under New York Penal Law. Prior to reaching Jamie s apartment, however, Boatwright was confronted by a police officer, who approached him with a drawn Taser weapon and quickly spun him around, ordering Boatwright to place his hands against the wall. The officer then searched Boatwright s person based on nothing more than a hunch that he was in the building illegally. In short, Boatwright contends that the officers, operating on nothing more than a hunch that he was engaged in illegal activity, seized and searched him without reasonable suspicion. Consequently, this Court should suppress the evidence collected as a result of his illegal seizure. Even if accepting the narrative offered in James Mills s police report, this Court should 1 That Boatwright was seized by the officers is true whether this Court accepts Officer Mills s account or Boatwright s own account of the events. According to Officer Mills s account, Boatwright was seized at the point in time when he attempted to leave the building but was prevented from doing so by Officer Helterline. 2 Boatwright was eventually charged with Criminal Trespass in the Third Degree, which makes it a crime for a person to knowingly enter[] or remain[] unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders. N.Y. Penal Law

8 Case 5:08-cr DNH Document 14-1 Filed 04/16/09 Page 7 of 9 still suppress the evidence as directly resulting from an illegal seizure. Officer Mills claims that he and Officer Helterline entered the apartment complex and immediately overheard two males involved in a verbal dispute. Importantly, Officer Mills does not say which two males were involved in the dispute, nor does he say that Mr. Boatwright was one of the males. Also absent is any indication of what the two men were saying. Officer Mills then claims that he saw a male walking into his apartment and another male trying to sell him something. Again, Officer Mills account is sketchy at best. He never provides the identity of the male entering his apartment, nor does he say which apartment the male entered. Curiously, even without identifying the male or the apartment number, Officer Mills claims that the male entered his apartment. How he knows this is a matter left entirely unaddressed. Also missing from Officer Mills account is any indication of how he knew the male later identified as Boatwright was trying to sell [the man who 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 building and seeing Mr. Boatwright were as follows: Officer Mills heard two unidentified men in what he described as a verbal dispute and later saw one man, not necessarily one of the men involved in the dispute, entering an apartment and another man, again not necessarily one of the men involved in the dispute, in the apartment hallway. These facts hardly rise to the level of reasonable suspicion. Once his account is properly analyzed, it becomes apparent that Officer Mills relied on two 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 to 6

9 Case 5:08-cr DNH Document 14-1 Filed 04/16/09 Page 8 of 9 stop, attempted to leave the building after another man walked into the apartment next to Boatwright. The alleged fact that Boatwright was present in an apartment that Officer Mills characterizes 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 about to engage in criminal activity. See, e.g., Illinois v. Wardlow, 528 U.S. 119 (2000) ( An individual s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.... the fact that the stop occurred in a high crime area [is] among the relevant contextual considerations in a 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 authority is 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. See Wayne R. LaFave, Search and Seizure 9.5(f) at (4th ed. 2004) (collecting cases). See also Tracey L. Meares & Bernard E. Harcourt, Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure, 90 J.Crim.L & Criminology 733, (2000) (finding that while the ratio of stops to arrests in New York City is 9:1 generally, the ratio for minorities in high crime areas is 45:1, which is suggestive that in high-crime urban communities where the population is disproportionately minority, flight from an identifiable police officers is a very poor indicator that crime is afoot. ). Even taken together, the fact that Boatwright was in a high crime area and attempted to leave the building after the person he was talking to entered his 7

10 Case 5:08-cr DNH Document 14-1 Filed 04/16/09 Page 9 of 9 apartment is hardly indicative of criminal activity. Moreover, Officer Mills provides no indication that Boatwright s apparent attempt to leave the building was in response to seeing two police officers. Therefore, even if Officer Mills s account is accepted, this Court should still suppress the evidence collected pursuant to the illegal seizure. CONCLUSION Based on the above analysis, the all evidence obtained as a result of the seizure of Meshiha Boatwright should be suppressed. Alternatively, Boatwright requests a hearing on the issue. DATED: April 16, 2009 Respectfully submitted, ALEXANDER BUNIN Federal Public Defender TO: Ransom Reynolds, Esq., AUSA Meshiha Boatwright By: S/James F. Greenwald Asst. Federal Public Defender Bar Roll No Office of the Federal Public Defender rd 4 Clinton Square, 3 Floor Syracuse, New York (315)

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