Motiontosuppressexamplesyracuse

UNITED STATES DISTRICT COURTNORTHERN 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 DefenderBar Roll No. 505652The Clinton Exchange, 3 Floor, 4 Clinton Squarerd

Syracuse, New York 13202(315) 701-0080

TO: Ransom Reynolds, Esq., AUSAMeshiha Boatwright

Case 5:08-cr-00519-DNH Document 14 Filed 04/16/09 Page 1 of 1

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF NEW YORK

UNITED 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 EVIDENCE

DATED: April 16, 2009 Respectfully submitted,Syracuse, New York

ALEXANDER BUNINFederal Public Defender

By:James F. Greenwald, Esq.Assistant Federal Public DefenderBar Roll No. 505652Office of the Federal Public Defender4 Clinton Square, 3 Floorrd


Case 5:08-cr-00519-DNH Document 14-1 Filed 04/16/09 Page 1 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


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


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 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 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


466 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


Amendment. 1

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

no way committing criminal trespass under New York Penal Law. 2

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

That Boatwright was seized by the officers is true whether this Court accepts Officer1

Mills’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, which2

makes 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.

5


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


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 521-23 (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, 786-92 (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


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 BUNINFederal Public Defender

By: S/James F. Greenwald Asst. Federal Public DefenderBar Roll No. 505652Office of the Federal Public Defender4 Clinton Square, 3 Floorrd


TO: Ransom Reynolds, Esq., AUSAMeshiha Boatwright

8




Date post:	26-Dec-2014
Category:	Self Improvement
Upload:	jjohnsebastianattorney
View:	116 times
Download:	0 times

Motiontosuppressexamplesyracuse

Self Improvement