United States v. Pena

351 F. Supp. 3d 723
CourtDistrict Court, S.D. Illinois
DecidedJanuary 11, 2019
Docket18-cr-637 (JSR)
StatusPublished

This text of 351 F. Supp. 3d 723 (United States v. Pena) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Pena, 351 F. Supp. 3d 723 (S.D. Ill. 2019).

Opinion

JED S. RAKOFF, U.S.D.J.

Our Constitution does not allow police, acting on a hunch, to place people in handcuffs for prolonged periods of time - even if the hunch eventually pays off. Now before the Court are defendants' motions to suppress certain evidence that was obtained from them after they were handcuffed and detained for more than a half hour prior to the police having probable cause to arrest them. For the reasons below, *726defendants' motions are granted in part and denied in part.

I. Findings of Fact

On December 14, 2018 and January 4, 2019, the Court held a suppression hearing at which the Government called four witnesses: New York Police Officer James Doheny, New York Police Officer William Smith, New York Police Lieutenant Alfred Reed, and New York Police Officer Joshua Thomas. Based on the Court's assessment of the witnesses' credibility (including demeanor) and consistency or inconsistency as detailed below, as well as the exhibits admitted in evidence, the Court makes the following findings of fact:

Around 11:40 PM on August 9, 2018, Doheny and Reed were driving westbound on 139th Street between Broadway and Riverside Drive when they heard shots being fired. Transcript dated December 14, 2018 at 6:11-17.1 Doheny testified that he "saw a man wearing a black shirt with a firearm, and [he] saw a muzzle flash from the firearm when [he] heard a shot." Id. at 7:13-14. He then saw the shooter and another man run westbound down 139th Street. Id. at 8:9-10. Reed got out of the car and remained at the scene, while Doheny drove westbound down 139th in pursuit. Id. at 9:10-16; Gov't Ex. 402 at 00:32-00:44.

Immediately following the shooting, distress calls came over the department radio - from individuals other than Doheny and Reed - that there had been "shots fired" at "1-3-9 and Broadway." Gov't Ex. 101-T at 1:6-7, 12-13. As Doheny pursued the suspects, he also made several calls over the radio. First, Doheny said: "Riverside! They're running towards 12th...." Id. at 1:16-17. Then: "... with a black shirt. Ran down ... 138." Id. at 2:9-10. And finally: "I'm on 12 Avenue, he ran down 12 avenue .... I don't know which way they went from there." Id. at 2:21-22, 24-25. Shortly thereafter, the police dispatcher said over the radio: "It's a male black, wearing a black ...." Id. at 3:1. And then, after some intervening calls, the dispatcher asked: "Okay who are we lookin' for? Male black, wearing a black shirt?" Id. at 3:18-19.

Smith testified that he had just gotten into his police car when he heard the initial distress calls that there had been "shots fired" at "1-3-9 and Broadway." Transcript dated December 14, 2018 at 41:25-42:8. Smith testified that he responded to the calls by driving westbound on 126th Street, and that he turned north on Broadway and then west on 132nd Street when he heard Doheny's call that the suspects were running toward Riverside. Id. at 43:3-10.2 Smith testified on direct examination that he heard "black sweatshirt, male, black sweatshirt" over the radio, id. at 43:14, but he acknowledged on cross-examination that he heard "male with a black shirt," id. at 56:13.3 Smith testified that he did not *727remember hearing the description of a "male black" that was put over the radio by the dispatcher. Id. at 58:7-10.

Smith soon arrived at West 135th Street and 12th Avenue, at which point he got out of his car and saw the person later identified as defendant Richie Hilario running southbound toward him on 12th. Id. at 43:17-44:19. Hilario, who is Hispanic, was wearing a black hooded sweatshirt with a red shirt and black shorts. Id. at 67:23-24, 71:20. Smith stopped Hilario, placed him in handcuffs, and frisked him. Id. at 44:21-23. Smith also made an announcement over the police radio that he had "one male stopped at 1-3-5 and 12th avenue." Gov't Ex. 101-T at 3:23-24.

As Smith was frisking Hilario, he saw the person later identified as co-defendant Kenny Pena approaching him from the same direction that Hilario had come. Transcript dated December 14, 2018 at 44:21-25.4 Pena, who is also Hispanic, was wearing a black Pittsburgh Pirates jersey with large gold lettering and jean shorts. Id. at 74:23-25; Gov't Ex. 301 at 00:00-00:10. Another New York Police Officer, referred to at the hearing as Officer Ross, placed Pena in handcuffs. Transcript dated December 14, 2018 at 75:9-10. Based on the timestamp on Smith's body camera, Pena was handcuffed a little after 11:44 PM, Gov't Ex. 301 at 00:00-00:30, and Hilario was likely handcuffed shortly before that. Smith testified that he did not place either suspect under arrest. Transcript dated December 14, 2018 at 49:11-12.

Smith did not find anything on Hilario when he frisked him. Id. at 49:8-10. However, roughly six minutes into Smith's body camera footage, Hilario is visible and can be heard asking, unprompted, for his money, which appears to be on the hood of a police car. Hilario says that Smith previously told him to drop the money. Smith asks Hilario how much it is, and Hilario says $120. Smith then confirms the money's location with another officer. See Gov't Ex. 301 at 06:00-06:30.

At the same time that Ross was handcuffing Pena, Thomas arrived at 135th and 12th. Transcript dated January 4, 2019 at 123:19-21. Thomas testified that he assisted Ross and then briefly searched Pena, taking a wallet and money from Pena's pockets. Id. at 135:8-13, 136:19-23.5 Later, after Pena had been detained for approximately fifty minutes, Thomas conducted a second search and found a tissue containing drugs and a sock containing a loose bullet. Gov't Ex. 302 at 12:00-13:20; 15:10-15:25; Transcript dated January 4, 2019 at 140:3-13.

As the above events were unfolding, Reed was still on 139th Street, gathering evidence from the shooting. Transcript dated December 14, 2018 at 88:5-25. Shortly after the shooting took place, Reed was able to find and view video footage from a nearby surveillance camera, introduced as Government Exhibit 401. Id. at 89:1-93:1. The video depicts the following events: a group of people are sitting on the steps of a building, when two men approach. One *728man appears to be wearing a light-colored hat, light-colored shoes, a dark-colored sweatshirt, and dark-colored shorts. The other appears to be wearing a dark-colored hat, dark-colored shoes, a dark-colored sweatshirt, and medium-colored shorts. The man with the dark-colored hat brandishes a gun, which he then appears to fire several times. The man with the light-colored hat then appears to grab something off the ground, and both men run westbound down 139th.

After viewing the video, Reed put the following call over the police radio: "[M]ale Hispanic, black hoodie, blue shorts,6 and he looks like he has on black sneakers with no socks on.... Light-skin Hispanic male.... Backpack, looks like there's writing in the back." Gov't Ex. 101-T at 12:18-21, 13:7-8.

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Cite This Page — Counsel Stack

Bluebook (online)
351 F. Supp. 3d 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pena-ilsd-2019.