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United States v. Hussain

United States Court of Appeals, Second Circuit

August 31, 2016

UNITED STATES OF AMERICA, Appellee,
v.
FAHD HUSSAIN, aka Ali, aka Moe, JERMAINE DORE, aka St. Kitts, aka Blaqs, DWAYNE BARRETT, aka Sealed Defendant 3, aka Tall Man, TAIJAY TODD, aka Sealed Defendant 4, aka Biggs, TAMESHWAR SINGH, aka Sealed Defendant 5, SHEA DOUGLAS, Defendants, DAMIAN CUNNINGHAM, Defendant-Appellant.

          Argued: January 29, 2016

         Damian Cunningham appeals from a judgment of the United States District Court for the Southern District of New York denying his motion to suppress evidence recovered after a traffic stop and search of Cunningham's vehicle. Cunningham contends that the search of his vehicle violated the Fourth Amendment because the officers lacked a reasonable, articulable suspicion that the occupants of the vehicle were presently dangerous. Relying on Michigan v. Long, the District Court determined after a hearing on Cunningham's motion to suppress that the officers possessed "a reasonable belief based on 'specific and articulable facts' . . . that the suspect [was] dangerous and the suspect [might] gain immediate control of weapons, " entitling them to conduct the search. 463 U.S. 1032, 1049 (1983). On the record here, we are persuaded that the events identified as leading to the officer's search of Cunningham's car and recovery of the gun introduced as evidence at trial are, without more, not enough to justify a full protective search of the passenger compartment of a car based on immediate danger to the officers involved or to others. We therefore REVERSE and REMAND to the District Court for further proceedings.

          JARED LENOW (Margaret Garnett, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, for Appellee.

          IAN S. WEINSTEIN (Cathleen Benites, Ketzia Chetrite, Beatrice Collette, Danielle Rudkin, Andrew Mainardi, Christopher Ross, Legal Interns, on the brief), Lincoln Square Legal Services, Fordham University School of Law, for Defendant-Appellant.

          Before: CALABRESI, LYNCH, and LOHIER, Circuit Judges.

          LOHIER, Circuit Judge.

         Damian Cunningham was convicted after a jury trial of participating in a robbery conspiracy (Count One) and using and carrying firearms during and in relation to the robbery conspiracy (Count Two). During the trial, the Government introduced a gun that an officer of the New York City Police Department ("NYPD") found while searching Cunningham's car during a traffic stop. The primary issue we consider is whether the search violated the Fourth Amendment. Citing Michigan v. Long, the United States District Court for the Southern District of New York (Sullivan, J.) determined after a hearing on Cunningham's motion to suppress evidence of the gun that the officers possessed "a reasonable belief based on 'specific and articulable facts' . . . that the suspect [was] dangerous and the suspect [might] gain immediate control of weapons, " entitling them to conduct the search. 463 U.S. 1032, 1049 (1983) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)).

         Appeals based on the Fourth Amendment from denied motions to suppress evidence of illegal weapons or contraband (drugs, etc.) are often difficult because the Government is in a sense proven right. Whatever prompted the search (a hunch, suspicion, luck, reasonable belief, or probable cause), incriminating evidence was found. The urge to defer to the assessment of the district judge, particularly one as knowledgeable and experienced as Judge Sullivan, only intensifies our difficulty, as does a set of facts implicating officer safety. On the record here, though, we are persuaded that the events identified as leading to the search of Cunningham's car and recovery of the gun introduced as evidence at trial are, without more, not enough to justify a full protective search of the passenger compartment of a car based on immediate danger to the officers involved or to others. We therefore REVERSE and REMAND to the District Court for further proceedings.

         BACKGROUND

         At trial the Government proved that Cunningham participated in a robbery conspiracy. It offered compelling evidence that a co-conspirator, Fahd Hussain, routinely identified potential robbery targets to Bronx-based robbery crews. After receiving Hussain's tip, the crews robbed the targets and sent Hussain the non-cash proceeds to convert into cash. Cunningham belonged to a robbery crew composed of black Jamaicans.

         We do not consider in the abstract whether Cunningham's crew was dangerous and violent. It undoubtedly was. In one robbery in October 2011 (described by the Government at trial as the "snowy day robbery"), for example, Cunningham and fellow crew members Jermaine Dore and Dwayne Barrett kidnapped Ahmed Salahi, eventually stealing $15, 000 from Salahi's home. During the robbery, Cunningham held Salahi hostage with a knife. Salahi testified that Cunningham then grabbed a gun and pointed it at Salahi's head.

         The central issue on appeal is whether the District Court should have suppressed evidence of a loaded gun seized by the police as a result of a search of Cunningham's car and introduced as evidence during Cunningham's trial. At the suppression hearing the District Court credited the NYPD officers' description of the car stop and subsequent search, and we accept their description as true for the purpose of resolving Cunningham's challenge.

         The car search occurred at around 10:30 pm on December 26, 2011, a few months after the Salahi robbery. Cunningham was driving a Nissan Maxima in the Bronx with another crew member, Lacey Scott. They were on their way to commit a robbery based on yet another tip from Hussain. NYPD Officers McAloon and Maudsley were driving in an unmarked police car just behind Cunningham's Maxima for some time, but at first neither officer noticed "anything unusual about the car." While driving at a "normal rate of speed, " Cunningham illegally ran a stop sign in front of the officers.[1] Officer McAloon turned on the police car's lights and sirens. Cunningham drove for about "half the block" or between "five to ten seconds" on a road where cars were parked on both sides of the street. He finally pulled over to what appears to have been an open spot next to the curb in the middle of the block.[2] Joint App'x 119. Thereafter, Officers McAloon and Maudsley testified based on their different vantage points of the stop and search, which we recount below.

         As the Maxima slowed to a stop, Officer McAloon observed Cunningham's arm move up and down in the middle console area. Supp. App'x 110. Officer McAloon then got out of the police car, approached the driver's side of Cunningham's car, and saw Cunningham with a cellphone "in his [right] hand up to the side of his head." Supp. App'x 112. Officer McAloon asked Cunningham to put down the phone, but Cunningham didn't immediately respond. Officer McAloon then asked Cunningham to "produce his license and registration." Supp. App'x 113. Cunningham again failed to respond immediately. After Officer McAloon asked again for his license and registration, Cunningham "started fumbling around the center console and then . . . reached for the glove compartment." Supp. App'x 113-15. At that point, Officer McAloon, fearing for his safety, ordered Cunningham out of the car. This time, Cunningham listened and got out of the car right away. Officer McAloon asked him if he had any weapons. Cunningham responded that he had a knife in his pocket. Joint App'x 109. Officer McAloon then frisked Cunningham, recovered a legal pocketknife with a two- or three-inch blade from Cunningham's pocket, and said "knife" out loud.[3] Joint App'x 143; Supp. App'x 55.

         After recovering the pocketknife, Officer McAloon directed Cunningham to move to the back of the Maxima where, as described below, Officer Maudsley and Scott were already located. Cunningham walked to the back of the Maxima without handcuffs. At trial, Officer McAloon explained that he saw "no need to handcuff" Cunningham because "[i]n [his] experience . . . [Cunningham] was being compliant and he indicated he had a weapon, so I brought him to the back of the car. There was no need to handcuff him at that time." Joint App'x 520. After directing Cunningham to the back of the car and without speaking to Officer Maudsley, Officer McAloon immediately returned to the driver's side of the car, searched it, and recovered the loaded gun at issue in this case underneath the front passenger seat, where Scott had been sitting.

         We turn next to the testimony of Officer Maudsley. As Officer McAloon approached the driver's side of Cunningham's car, Officer Maudsley approached the passenger side where Scott was sitting. From behind the car, Officer Maudsley initially saw Cunningham move his right arm in the center console area and pick up a smartphone. Supp. App'x 22-23 ("The right arm moves up and down from the middle area and it comes back up with what appears to be an iPhone and it moved back down out of the sight and back up again several times."). As Officer Maudsley moved to the side of the car, he saw that Scott's hands were "in plain view and [] did not move" while his shoulder "protrude[d]" into the console area from the passenger side. Supp. App'x 22-23, 49. Officer Maudsley described Scott as sitting in an "unnatural" position that suggested Scott was trying to obstruct the officers' view of the car interior. Specifically, Officer Maudsley testified, the "left portion of [Scott's] body was too far left into the middle area where you would not be seated. The left shoulder was moved towards the driver's side of the vehicle and the body was canted where the left hip was slightly rotated in an upward position." Supp. App'x 31. There is no evidence in the record that Officer Maudsley conveyed what he saw (that is, Scott sitting in an "unnatural position") to Officer McAloon before the latter started to search the Maxima. At some point, Officer Maudsley heard Officer McAloon say "knife, " whereupon Officer Maudsley opened the passenger side door and told Scott to get out of the car. Scott complied. Officer Maudsley frisked Scott ...


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