United States v. Cancel

167 F. Supp. 3d 584, 2016 WL 929340
CourtDistrict Court, S.D. New York
DecidedMarch 9, 2016
Docket15 Cr. 488(AT)
StatusPublished
Cited by6 cases

This text of 167 F. Supp. 3d 584 (United States v. Cancel) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cancel, 167 F. Supp. 3d 584, 2016 WL 929340 (S.D.N.Y. 2016).

Opinion

[587]*587 MEMORANDUM AND ORDER

ANALISA TORRES, District Judge:

Defendant, Hector Cancel, moves, pursuant to Rule 12 of the Federal Rules of Criminal Procedure, to suppress a gun recovered by the police.

BACKGROUND

On January 6 and 7, 2016, the Court held an evidentiary hearing. The Government presented the testimony of NYPD Officers Karon B. Porter, Modesto Acosta, and Jonathan Della Monica. Porter, who is assigned to NYPD Transit District 12 in the Bronx, has been a police officer for two-and-a-half years. Jan. 6, 2016 Hearing Transcript (“1/6/16 Tr.”) 3, ECF No. 22. He has made approximately 165 arrests, the majority of which were for theft of services.1 Id. 4, 35. Acosta has served on the police force for one-and-a-half years and is a member of the NYPD’s Bronx Response Team (“BRT”). Id. 93-94. He has made approximately 35 arrests, the majority of which were for theft of services. Id. 94. Della Monica, a six-year veteran of the NYPD, has been assigned to the BRT for five-and-a-half years. Jan. 7, 2016 Hearing Transcript (“1/7/16 Tr.”) 17-18, ECF No. 24. He handles administrative tasks and is a training officer. Id. Della Monica has made approximately 230 arrests, the majority of which were for theft of services. Id. 18. The Court credits the officers’ testimony.

The defense did not call any witnesses.

FACTS

On July 8, 2015, Officers Porter and Acosta, both in uniform, see Jan. 21, 2016 Govt. Opp. 3, ECF No. 27, were on patrol at the 233rd Street subway station in the Bronx, when they observed Hector Cancel walking through the emergency gate.2 1/6/16 Tr. 4-5, 11, 49, 96, 99. He was holding cash and a black plastic bag. Id. 11, 99. When Cancel made eye contact with Acosta, who was standing near the emergency gate about a “foot and a half’ away, id. 116, Cancel “flinched” and “double[d]-baek[ ] ... as if he [were] exiting” back through the emergency gate. Id. 11-12, 53,101,116. The officers stopped Cancel. Id. 12-13. Porter asked Cancel why he had used the emergency gate. Id. 13. Cancel responded that the MTA employee working the booth had allowed him in. Id. 13, 36. The officers then spoke with the booth attendant, who denied authorizing Cancel’s entry and stated that she had “let the lady in before him.” Id. 13-14, 102. Porter and Acosta do not recall observing anyone walk through the emergency gate right before Cancel. Id. 12, 49, 53, 100, 120; 1/7/16 Tr. 12.

The officers “walked [Cancel] over to [a] bench ... and sat him down.” 1/6/16 Tr. 103; see also id. 15; Cancel Aff. 2, ECF No. 12-2. Cancel placed his plastic bag on the seat directly next to him. 1/6/16 Tr. 16. Porter then picked up the bag and moved it one seat further away from Cancel, so that there was now one empty seat separating Cancel and the bag.3 Id. 17, 59, 62. Porter did this as “a safety proce[588]*588dure” that he “instilled in [him]self.... [A]s a cop looking at an individual, we don’t know what is in their bag. It is a safety thing because at the end of the day, I am trying to go home[.]” Id. 17-18. Porter moved the bag “to a place where it [was] hard to reach[.]” Id. 63. Porter testified that Cancel, who was not yet handcuffed, could “still reach” the bag, “but if he [were] to reach it, [Porter] would see and have a decent amount of response time.” Id. 62-63; see also id. 18, 104-05.

At Porter’s request, Cancel produced his identification card. Id. 19. Porter observed a “metal clip” on Cancel’s pocket, and asked him if he had anything on him that Porter “need[ed] to know about.” Id. 19-20. Cancel responded that he had a knife, and handed it to Porter. Id. 20, 64. Porter asked Cancel why he had a knife; Cancel explained that he was a vendor, and that “the knife [was] not functioning[.]” Id. 20. Porter placed the knife “with the bag” on the bench. 1/7/16 Tr. 34. Porter testified that he would have the same safety concerns about the knife that he had about the bag and that, if a suspect “had a knife, you wouldn’t want that knife to be in reachable distance to [that] person.” 1/6/16 Tr. 66.

Porter then called his precinct and asked Della Monica to “run” Cancel’s name. Id. 21; 1/7/16 Tr. 19. Della Monica entered Cancel’s name and date of birth into a database called “Host On-Demand,” which reports “whether the person has a warrant, [is a] [t]ransit recidivist or anything like that.” 1/7/16 Tr. 19-20, 25-27. He examined Cancel’s rap sheet by “running the NYSID,” or “New York State Identification Number.” Id.; Jan. 21, 2016 Govt. Opp. 6. From this records check, Della Monica determined that Cancel was a transit recidivist,4 and told Porter to “bring [Cancel] in.” 1/6/16 Tr. 21; 1/7/16 Tr. 7, 27, 32. Porter testified that he “understood that to mean that [he was] going to have to place the defendant under arrest.” 1/6/16 Tr. 21. After getting off the phone with Della Monica, Porter stated to Cancel, “we’ll have to bring you in. [Cancel] then looked at [Porter] and said, You know what time I am going to be out? [Porter] said, Listen, it is still early. It is about 2:00 [p.m.] right now. You’ll probably be out by 2:00 a.m.” Id. 22.

Acosta handcuffed Cancel with his hands behind his back and patted him down. Id. 22, 107. Cancel remained on the bench. Id. 80. Porter “search[ed] the outer [perimeter]” of Cancel’s black plastic bag by “do[ing] a little pat, feel and squeeze [of] the outer [perimeter].” Id. 23. As Porter did this, Acosta was “focused” on Cancel, 1/7/16 Tr. 3, and the bag was “enough distance from” Cancel such that “if he or anyone was to lunge at the bag, [Porter would] have enough time to react.” 1/6/16 Tr. 80. When asked why he felt Cancel’s bag, Porter testified: “Because I know that this individual is about to be put into a department vehicle, ... with either other defendants or other police officers or police personnel.... [I]t is a safety measurement that this bag might be around other people and it might be around the defendant while we transport the defendant back to our command.” Id. 24-25. Porter testified that, based on his experi[589]*589ence handling his off-duty and service weapons, “[o]nce [he] was feeling” the bag, he “pretty much felt like it was a gun.” Id. 25. Porter “then opened up the bag and [ ] went directly toward the hard substance or object that [he] was feeling.” Id. He “found another bag within the [ ] bag and [ ] found a black shirt wrapped around a gun.” Id.; see Govt. Ex. 7 (photograph of bag and black shirt). Both bags “were basically black- shopping bags, grocery store bags.” 1/6/16 Tr. 26. In addition to the gun, Porter found, among other things, “a lot of CDs.” Id.; Govt. Ex. 16 (NYPD property clerk invoice stating that 33 compact discs in Cancel’s possession were “vouchered for safekeeping,” along with other items including a portable speaker, headphones, and a cell phone).

Throughout his encounter with the officers, Cancel was “surround[ed]” and “flanked” by Porter and Acosta, who were both armed. 1/6/16 Tr. 82; see also id. 16.

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Cite This Page — Counsel Stack

Bluebook (online)
167 F. Supp. 3d 584, 2016 WL 929340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cancel-nysd-2016.