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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA
-v.-
CAROL BAYLESS,
Defendant.

95 Cr. 533 (HB)
Decision and Order

Appearances:
Jay Holtmeier, Esq.
David Lewis, Esq.
Assistant United States Attorneys
One St. Andrew's Plaza
New York, New York 10007
[phone]
For the Government.

Ramon Pagon, Esq.
888 Grand Concourse
Bronx, New York 10451
[phone]
For the Defendant.

Harold Baer, Jr., District Judge1

    Defendant Carol Bayless was charged in connection with
an alleged cocaine and heroin distribution conspiracy.
Defendant now moves to suppress (1) physical evidence
seized from the car she was driving at  the  time  of  her
arrest,  and  (2)  her post  arrest statements.  The
Government consented to a hearing on defendant motion.  On
January 3 and 4, 1996 I heard testimony from three New York
City Police Officers,2 viewed the defendant's video-taped
statement  and  heard argument  from  the  Government  and
defense counsel.

    For the reasons which follow, I find that the stop was
in violation  of  the  defendant's  Fourth  Amendment
rights  and, therefore, defendant's motion to suppress is
GRANTED.

I.  Background

The great enemy of  truth  is very often not  the  lie  --
deliberate, contrived, and dishonest -- but the myth  --
persistent,  pervasive and realistic.3

    Defendant  Carol  Bayless,  a  middle-aged  black
woman  was arrested at approximately 5:00 a.m.  on   April
21,  1995 at the corner of  176th Street and Amsterdam
Avenue  in the Washington Heights section of New York City.
At the time of her arrest, defendant was driving an Alamo
Rental Car with Michigan license plates.  When police
officers opened the trunk of the car, a 1995 Red Chevrolet
Caprice,  they  found  two duffle  bags  containing
approximately 34 kilograms of cocaine and 2 kilograms of
heroin.

    The prosecution's version of the events leading up to
the defendant's arrest differs dramatically from that of
the defendant in her videotaped statement.   Accordingly,
I have divided the background section into two parts so as
to more clearly spell out these discrepancies.  Let me say
at the outset, that based on the defendant's videotaped
admissions about the events leading up to the stop,  the
search and her arrest,  including statements which
unequivocally implicate her own son, I find her statement
to be credible and reject the testimony proffered by
Officer Carroll.

     a.   Testimony of the Arresting Officer

    Police Officer Richard Carroll testified that on April
21, 1995 he and his partner, Sergeant Bentley, both 10 year
veterans of the police  force,  were assigned to a plain
clothes anti-crime patrol unit.  On this night, they were
to patrol the northern end of Manhattan,  the province of
the  32nd,  33rd and 34th Police Precincts.4  Tr. at 25.
Officer Carroll defined the area of patrol to be "from
155th Street up to the tip of Manhattan, everything north
of 155th."  Tr. at 4.  Officer Carroll characterized this
entire area as "an area known for its high drugs .  .  . a
hub for the drug trade."  Tr. at 5.

    At approximately 5:00 a.m. on April 21st the officers,
who were in an unmarked patrol car,  turned onto  176th
Street and observed the defendant's car shortly thereafter.
Tr.  at 4-5. Officer Carroll testified that when he first
saw defendant's car, it was moving slowly along 176th
Street.   Before reaching the intersection of 176th Street
and St. Nicholas Avenue the defendant pulled over to the
north side of the street and double parked the car.  Tr. at
5.[5]   The officers did not observe any one in addition to
the driver in the car.  Id.

     Officer Carroll testified that as soon as the car
stopped, four unidentified males emerged from between
parked cars on the south side of the street.  Tr. at 6.
The males crossed the street walking single file,  the
defendant leaned over to the passenger side of the car and
pushed the button for the trunk release.  Id. The first
male then lifted the trunk open,  the second and third
males each placed a large black duffel bag into the trunk
and the fourth male closed the trunk.   Id.  Officer
Carroll testified as follows:

As soon as the auto stopped, I observed four males come
from the south sidewalk between parked autos.  They entered
the street in a single file-like walk to the rear of the
auto.  I saw just before they reached it the driver of the
auto lean over into the passenger side of the car.  The
trunk opened a few inches.  The first male opened the
trunk.  The next male came and through [sic] a duffle bag,
a large black duffle bag into the back. Another large male
was also carrying a black duffle bag, and he threw that
into the back.  The fourth male came and closed the trunk.

Tr. at 6.  Officer Carroll testified that he did not
observe any conversation between the males and the driver
of the car and the entire transaction occurred within
seconds.  Id.

    The driver of the auto then proceeded to the corner of
176th street and St. Nicholas Avenue where she waited for
the light to turn from red to green.  Tr. at 6.  The
officers pulled up behind the Chevrolet Caprice and also
waited for the light to change.  Tr. at 6.  According to
Officer Carroll he did not signal the driver pull  the car
over nor did he encourage the driver to proceed through the
intersection.  Tr. at 6-7.

     At this time the four males were standing on the
sidewalk  in the north side of the street and when the
officers' car came to a stop, the officers were staring at
the males.  Tr. at 7.  According to Officer Carroll, two of
the males noticed the police officers, spoke briefly to
each other and:

[a]t  that  point  the  four  males  moved  in  different
directions at a rapid gait.  The individual that .  .  .
[Officer Carroll] watched went to the corner of 176th and
St. Nicholas, and as he reached the corner began to run
northbound on St. Nicholas.

Tr. at 7.[6]

     According to Officer Carroll,  the  light changed to
green shortly thereafter and the defendant proceeded at a
normal rate of speed through the intersection and continued
along 176th Street. Tr.  at 7.   The officers followed
behind and asked officers in another car  if  they would,
via computer,  run a check on the Michigan license plate.
Tr. at 7.  Two blocks later, the officers turned on the red
"fire-ball" light on their dashboard and pulled the
defendant over.  Tr. at 8.

      When asked by the Court what prompted the officers to
pull the defendant over, Officer Carroll replied: "Sergeant
Bentley wanted to stop the auto before  it got onto a major
roadway,  and the highway was just ahead."  Tr. at 8.  At
this time the officers had not received a response from the
computer check on the license plate and did not know that
the defendant was operating a rental car.  Tr. at 8.  After
further inquiry, Officer Carroll testified that he was
prompted to pull  the defendant over based on the following
observations: the car had an out-of-state license plate;
the actions of the four males, particularly the way they
crossed the street in single file and did not speak with
the driver of the car; the fact that the males ran once
they noticed the officers; and the duffle bags the males
placed in the trunk of the car.   Tr. at 8, 9-10.

    Once the defendant pulled the car over to the side of
the road,  Officer Carroll approached the vehicle and asked
to see defendant's driver's license, registration and proof
of insurance. Tr. at  11.  Officer Carroll testified that
following the stop he did not have any conversation with
the defendant about why he pulled her car over or why he
was interested in looking into the trunk.  Tr. at 13, 16.
Subsequent to her arrest, the defendant was questioned by
a number of law enforcement officials and gave both written
and videotaped post-arrest statements.  Pl. Exs. 7, 8.

    b.   The Defendant' 8 Videotaped Statement

    As I stated previously, the defendant's version of the
events surrounding her arrest differs significantly from
that recounted by Officer Carroll.7  Her candor and the
breadth and nature of her statements give her statement
great credibility   Specifically, in her videotaped
statement,  defendant admits to her role in the transaction
and that of her son and his associates.  The defendant also
detailed her involvement in 20 other similar transactions
and all  this  without  any  promise  of  immunity  or
even  special consideration. 8

    According to the defendant, she left Detroit, Michigan
for New York City at approximately 6:30 p.m.  on April
20th.  At that time, she was riding as a passenger in the
Red Chevrolet Caprice and a man named Terry drove the car
to New York City.  The purpose of the trip was "to get some
drugs and to come back home."

    Prior to leaving Detroit, Robert and Chubb, two
associates of defendant's son, placed five duffle bags
containing money into the trunk of the Caprice and then
drove in a van, along with a third man,  to New York.
Defendant estimated that the bags contained $1,000,000.
Once the two vehicles arrived in New York City, they
proceeded  to  176th  Street  where  the  defendant  saw
four  men, "Roberto,  his  two  brothers  and a worker."
According  to  the defendant,  it was customary for Robert
to call Roberto when they were about an hour outside of the
city "so he  [Roberto]  can be ready for us when we get
here."  At 176th Street Terry stopped the car and Robert
exited the van and opened the trunk of the Caprice and
along with Chubb, took the money inside the apartment
building Robert directed Terry to move the van around the
corner,  the defendant waited in the Caprice.

    The defendant stated that Robert and Chubb were inside
the apartment building for about ten minutes while she was
parked outside.  Then "when they came down they opened the
trunk back up and put  the  two bags  in there and handed
me the keys and I proceeded to pull off."  After Robert and
Chubb put the bags into the trunk the defendant observed
that "they started walking" away. When the defendant was
unable to determine whether the men walked north, south,
east or west, the interrogating officer asked "Well, was it
in the same direction that you drove in the direction that
you drove away they were walking, they walked?"  (Emphasis
added.) The defendant responded in the affirmative.

    Thereafter defendant proceeded to the corner of 176th
Street and St. Nicholas where she waited for the traffic
light to turn green.  While sitting there, she noticed a
car behind her; "I could see the car in the next block,
just sitting there, o.k. I seen it I was aware of the car."
The defendant stated that the car pulled up behind her as
she waited for the light to change and the car behind
"flashed the red light."   The defendant,  unsure that  a
police car was behind her,  stated that the events unfolded
as follows:

- New York police cars  are different  and  this was an
unmarked car, o.k., and it [the red fire-ball light was
like up in the dashboard.  Our cars, they have the lights
out on the hood but I knew it was something.   So the light
turned green and I proceeded to go straight across and then
as the red light was flashing I seen another light and
stopped.  And I just sat there and finally the police
officers they got out, they identified themselves, they
asked me for a driver's license and registration and stuff
and I gave it to them.  And then they said what's in the
trunk?  I said I don't know and they said uh give me the
keys.  So I gave them the keys and they opened up the
trunk.  Then I got arrested. -

Defendant admitted that when she told the officers that she
did not know what was in the trunk she was not telling the
complete truth. However, she clearly stated that she knew
that there were narcotics in the trunk but that she thought
there was only cocaine in the trunk, when, in reality,
there was both cocaine and heroin and in fact she never saw
what was in the bag.  Defendant stated that she expected to
be paid $20,000 by her son and others for this trip and
that she had made approximately 20 similar trips between
1991 and 1995. 9

II. Discussion

     Defendant moves to suppress the physical evidence
seized from the car she was driving at the time of her
arrest10 and her post arrest statements.  The inquiry here
is whether the evidence seized and the statements given
were the fruits of a search and seizure made in violation
of the defendant's Fourth Amendment rights.  Put another
way,  did Officer Carroll  and  Sergeant  Bentley have  a
reasonable  suspicion  that  defendant  was involved  in
criminal activity when they stopped her car?

    I have  reviewed extensively  the  briefs  submitted by
the parties, the testimony of their witnesses, the
arguments put forth by counsel, and the numerous cases
cited by the Government.  The essence of the Government's
argument is that Officer Carroll and Sergeant Bentley had
a reasonable basis for stopping the defendant and that
their "Terry-type" investigative stop of defendant did not
violate her Fourth Amendment rights.  I disagree.  I find
that the defendant's conduct when viewed objectively by
trained officers familiar with drug trafficking and in the
context of the events which occurred in the early morning
of April 21st, does not give rise to a reasonable suspicion
that criminal activity was afoot.

a.   The Validity of an Investigative Stop.

    If  the  initial  stop  of  defendant's  vehicle
violated defendant's  Constitutional  rights,  any
subsequent  search  or evidence seized by virtue of the
violative stop will be suppressed under the "fruit of the
poisonous tree" doctrine.   Wong Sun v. United States, 371
U.S. 471, 484-85 (1963)[11]  Thus, the focus of my inquiry
here is on the stop.

    This  Circuit  has  recognized  three  levels  of
interaction between government agents and individuals;
consensual encounters, limited investigative stops, i.e.
"Terry-type" stops, and arrests. United States v. Tehrani
49 F.3d 54,  58  (2d Cir. 1995)  (citing United States v.
Hooper,  953 F.2d 484, 490 (2d Cir. 1995) cert. denied, 502
U.S. 1015 (1991)); see also United States v. Glover, 957
F.2d 1004,  1008  (2d Cir.  1992).   A consensual stop is
not considered a seizure under the Fourth Amendment and
thus may be initiated by a government agent, such as a
police officer, without any level of suspicion.  Id.  In
contrast, a limited investigative stop or an arrest amounts
to a seizure under the Fourth Amendment and must be
premised on a heightened standard.

    A limited investigative stop, which is the stop at
issue here, must be based on "a reasonable suspicion
supported by articulable facts that criminal activity 'may
be afoot.'" United States v. Sokolow, 490 U.S. 1, 7 (1989)
(quoting Terry v. Ohio, 392 U.S. 1 (1968)).   Likewise,
the Constitution requires that an arrest be rooted firmly
on the existence of probable cause that the person arrested
is or was involved in criminal activity.  Glover, 957 F.2d
at 1008.

   The  Supreme  Court  recognized  a  limited  exception
to  the probable cause standard for an investigative stop
under the Fourth Amendment in Terry v. Ohio, 392 U.S. 1
(1968).  In evaluating the reasonableness of an
investigative stop,  the law requires a two part  inquiry.
 First,  whether the stop itself was based on a reasonable
suspicion that the suspect "is, has been, or is about to be
engaged in criminal activity."  Terry, 392 U.S. at 20.
Second, provided the first inquiry is satisfied, a
reviewing court must inquire into whether the stop was
reasonably related in scope to the circumstances which
justified the stop.  Id.

    Focusing on the  first of  these  two  inquiries,  the
Court requires government agents to point to specific and
articulable facts which, along with rational inferences
drawn from those facts, reasonably suggests that criminal
activity has occurred or will occur imminently.  Terry, 392
U.S. at 21.  Reasonable suspicion is a less demanding
standard than probable cause.  As the Court stated in
United States v. White:

it can be established with information that is different in
quantity or content than that required for probable cause,
reliable than that required to show probable cause. United
States v. White, 496 U.S. 325, 330 (1990).

     Thus the law requires that an investigative stop be
based on a minimal level of objective justification.   A
stop cannot be premised on an officer's intentions or
motivations nor can a stop be based on an officer's
inchoate suspicion or mere hunch.  Glover, 957 F.2d at
1009-10 (citations omitted).  An officer's action must be
justified at its inception and will not comport with Fourth
Amendment requirements unless the officer can articulate
specific and articulable facts which along with rational
inferences drawn from those facts, create a reasonable
suspicion that the person stopped is or was engaged in
criminal activity.  See United States v. Alexander,  907
F.2d 269,  272  (2d Cir.  1990)  (citing United States v.
Brignoni-Ponce, 422 U.S. 873, 884 (1975))

     The Second Circuit views factors and activities such
as a person entering a building which is known as a
location where drugs are sold or a person's evasive and
erratic driving patterns when leaving a building under
police surveillance as sufficient to give rise to a
reasonable suspicion that  the person  is engaged  in
criminal activity.  See United States v. Vasquez, 638 F.2d
507, 523 (2d Cir. 1980), cert. denied, 454 U.S. 847 (1981);
United States v. Ginsberg, 758 F.2d 823, 828 (2d Cir.
1985); see also United States v. Bechdel, 1988 WL 2501
(E.D.N.Y. 1988).

    Through a progeny of cases the federal courts have
articulated a clear standard by which the conduct of police
officers and government  agents  engaging  in
investigative  stops  is  to  be measured.  Although the
standard of reasonable suspicion is less than that  of
probable  cause as  required  for an arrest,  this standard
is one which firmly exists as a protector of our Fourth
Amendment right to be free from unreasonable searches and
seizures. Accordingly,  as  Judge  Timbers  stated  in
United  States v. Buenaventura-Ariza, 615 F. 2d 29, 31 (2d
Cir. 1980), "[o]f necessity there must be a line separating
investigatory stops supported by 'specific, objective
facts' from those stops occurring essentially at the
'unfettered discretion of officers in the field.'"
(quoting Brown v. Texas, 443 U.S. 47, 51 (1979)).

b.   The Investigative Stop is Invalid.

    In evaluating whether Officer Carroll and Sergeant
Bentley had a reasonable suspicion that defendant was
involved in criminal activity when they stopped her car, I
must focus on the totality of the circumstances,  as viewed
from the officer's perspective and experience in the early
morning hours of April 21, 1995.  At the hearing,  Officer
Carroll  testified  that  he  pulled  over  the defendant's
car as directed by Sergeant Bentley who "wanted to stop the
auto before it got onto a major roadway, and the highway
was just ahead."  Tr. at 8.  Officer Carroll testified to
what in his view constituted the specific and articulable
factors underlying his reasonable suspicion that defendant
was engaged in criminal activity: the neighborhood; the
car's out-of-state license plate; the fact that the car was
moving slowly and then double parked; the actions of the
four males, particularly the way they crossed the street in
single file and did not speak with the driver of the car;
the fact that the males scattered once they noticed the
officers staring at them; and the duffle bags the males
placed in the trunk of the car.  Tr. at 8-10.   I find that
even collectively, these facts  fail  to  meet  the
requisite  standard  of  reasonable, articulable suspicion
that any criminal activity was afoot and that is assuming
Officer Carroll is to be believed.

    The testimony offered by Officer Carroll about how the
events of April 21st unfolded when juxtaposed with the
defendant's full fledged  videotaped  confession  suggest
that  Officer  Carroll's testimony is at best suspect.  I
place consider-able weight on the defendant's statements
because of how they incriminate her, her son and others and
because at the time the statements were made, the defendant
unlike the Officer, had no reason to color the facts.
Furthermore, the defendant's verslon of the events,
recorded twelve hours or less after her arrest,  is likely
to be a more accurate statement of what occurred that
morning than an officer's testimony offered more than eight
months after the events took place.  And where, one may
wonder was the officer in charge, Sergeant Bentley? While
presumably available to corroborate this officer's
gossamer, he was never called to testify.

    Officer  Carroll  testified  that  when  he  first
observed defendant,  she was driving a Red 1995 Chevrolet
Caprice slowly along 176th Street.  Tr  at 5.  In contrast,
defendant asserts that she did not drive to New York City
from Detroit, rather she was a passenger in the Caprice
driven by Terry.  Further, defendant did not get behind the
wheel of the car until after it was stopped on 176th Street
and Terry had exited the vehicle.  Put another way, Officer
Carroll apparently missed or overlooked the fact that the
car had come to a halt, never saw the man exit the Caprice,
and missed the million dollars being taken out of the
trunk.   If we credit the defendant's statement, and I do,
one cannot keep from finding Carroll's story incredible.

    The mere presence of an individual in a neighborhood
known for its drug activity,  which here was characterized
as from 155th Street  to  the  end of  Manhattan,  fails
to  raise  a  reasonable suspicion that the person observed
is there to purchase drugs. United States  v.  Moore,  817
F.2d  1105,  1107  (4th Cir.  1987) (quoting United States
Constantine, 567 F.2d 266, 267 (4th Cir 1977) (presence of
suspect in high crime neighborhood is not enough to raise
a reasonable suspicion, but may constitute an articulable
factor)).  Similarly, the hour at which a person is in a
known high crime neighborhood should not give rise to a
reasonable suspicion that they are involved in criminal
activity but may constitute an articulable fact to
consider.   See United States v. Lender,  985 F.2d 151, 154
(4th Cir. 1993)  (fact that defendant was observed in known
drug area at 1:00 a.m. is only a fact raising the level of
suspicion).  Here, the defendant was observed in an area
allegedly known for its drug trading.12 Yet,  I find
nothing unusual about the time at which she was observed.
 In New York City,  people travel to and from work at all
hours of the day and night.  This would be an even more
reasonable time to be abroad where as here a Michigan
resident on a visit to New York was returning to her home
state and wanted to get there before nightfall.

    Further, unlike Officer Carroll, I do not find it odd
that a person is seen to drive a car with a Michigan
license plate in Manhattan.   In his testimony, Officer
Carroll put great stock in the fact that defendant was
driving a car with an out-of-state license plate at the
time of her arrest and that she double parked on a city
street.  In a city which considers itself "The Capital of
the World" and which is regularly crowded with out of state
and foreign visitors who come by plane, train, boat and
certainly car, it  is  not  odd  to  see  a  license  plate
from  another  state.11  Similarly, while it might be
unfortunate, it is certainly not odd for one to observe
double parked cars on a Manhattan street. It is often the
case that cars are double parked, even tripled parked on
Manhattan's busy avenues and side streets.  What I find
shattering is that in this day and age blacks in black
neighborhoods and blacks in white neighborhoods can count
on little security for their person  As Thomas Paine wrote
just 220 years ago next month:

Here, then is the origin and rise of government; namely, a
mode rendered necessary by the inability of moral virtue to
govern the world; here too is the design and end of
government, viz., Freedom and security. 14

    The Eastern District of New York and the Eastern
District of Virginia have recently found a failure of proof
in cases similar to this one.   See United States v.
Restrepo, 890 F. Supp. 180,  194 (E.D.N.Y. 1995)  (stop
violated Fourth Amendment because it lacked proper basis;
defendant was not speeding or violating any traffic
ordinances,  rather, defendant was stopped and questioned
solely because he was driving a car with out-of-state
plates and appeared to be Hispanic); see also United States
v. Betemit, 899 F. Supp 255, 262 (E.D. va. 1995) (Court
determined real reason for the stop was the expensive car
with tinted windows, the out-of-state plates and that it
was occupied by three young, black males).

    Several cases cited by the government advance the
proposition that double parked cars with out of state
license plates may be factors in assessing whether
reasonable suspicion exists   Let's look at those cases; in
United States v. Terry, 718 F. Supp. 1181, 1183  (S.D.N.Y.
1989),  the  defendant  was  driving  a  car  with
Connecticut  license plates and double  parked at  a  known
drug location under police surveillance; in United States
v. Alexander, 907  F.2d  269, 271 (2d  Cir.  1990),  DEA
agents  conducting  a surveillance observed a green Jaguar
double parked;  in United States  v.  Harley,  682  F.2d
398,  399-400  (2d Cir.  1982),  the defendant arrived in
a car bearing Georgia license plates,  and double parked
outside of a known drug location under surveillance. Each
of these cases is as a consequence of the surveillance
easily distinguishable from the case at bar.

    In fact, in Terry the surveillance officers "were
instructed to stop cars that double parked in front of the
building [under surveillance]  if the occupants entered and
remained inside for approximately 10 minutes, then departed
the area."  Terry, 718 F.  Supp. at 1183.   Similarly,  in
Harley surveillance officers decided  to  question  people
seen  leaving  the  building  under surveillance in an
attempt to gain additional information about the drug
trafficking activities inside or a means of entry into t~he
suspected building shortly before arresting the defendant.
Harley, 682 F.2d at 400.  There was no testimony that
Officer Carroll, his partner or any officers from the 32nd,
33rd or 34th precinct were involved in surveillance
activities in the area on April 21, 1995.

    The Government supplied several cases which they opined
were the most persuasive.15   In the majority of these
cases the key element  for the  stop was  the defendant's
furtive  conduct  and evasive behavior or the officer's
knowledge of the defendant's propensity for involvement in
criminal activity.16 There is not a scintilla of evidence
to that effect here.  Not only is there no evidence of
furtive or evasive conduct by the defendant here, Officer
Carroll testified that the defendant proceeded through the
intersection of 176th Street and St. Nicholas Avenue and
continued along 176th Street at a normal rate of speed and
that defendant did not drive erratically.  Tr. at 6-7.  The
defendant stated that she was aware of the officers behind
her, yet she did not run the red light at St. Nicholas
Avenue, nor did she take off at an excessive rate of speed
once the light changed to green.

    When pressed on the  issue of evasive or  furtive
conduct, Officer Carroll admitted that while the defendant
did not herself act furtively or evasively, the conduct of
the males was evasive. Officer Carroll and the Government
argue that the males acted in concert with the defendant
and therefore the fact that at least one of the males was
observed running from the scene demonstrates evasiveness.
Tr. at 7-10.  Conversely, the defendant stated that the
males "put the two bags in [the trunk]  . .  . handed [her]
the keys and [she]... proceeded to pull off"  while the
males "started walking" away from the car.  The defendant
further stated that the males walked in the direction that
she drove the car, thus if one or all of the males had run
from the corner of 176th Street and St. Nicholas Avenue,
surely the defendant would have seen them.

     Moreover, even assuming that one or more of the males
ran from the corner once they were aware of the officers'
presence, it is hard to characterize this as evasive
conduct.17 Police officers even those travelling in
unmarked vehicles, are easily recognized, particularly, in
this area of Manhattan.  In fact, the same United States
Attorney's Office which brought this prosecution enjoyed
more success in their prosecution of a corrupt police
officer of an anti-crime unit operating in this very
neighborhood.18  Even before this prosecution and the
public hearing and final report of the Mollen Commission,
residents in this neighborhood tended to regard police
officers  as  corrupt,  abusive  and  violent.   After  the
attendant publicity surrounding the above events, had the
men not run when the cops began to stare at them,  it would
have been unusual.

    Finally, I turn to the issue of the duffle bags.
Duffle bags are commonly and regularly used to transport
things from clothing to equipment.   It is far from
suspicious to see people placing duffle bags into the trunk
of an out of state car in the early morning.   To me this
behavior is innocuous and again consistent with a person
leaving early in the morning on a long drive to return home
to Michigan after visiting relatives in New York City.

     Officer Carroll stated that the way the men were
walking, their single line formation, and the fact that the
men did not speak or interact with the driver of the car is
suspicious in and of itself.  If  we  contrast  this
testimony with  that  of  the defendant, we find that the
defendant clearly stated that she was waiting in the car
when the men placed the bags into the trunk and that the
men handed the car keys to her after they placed the bags
into the trunk.

    There are at least two significant discrepancies at
this point in the account of the events leading up to the
investigative stop of defendant and I credit the
defendant's version in each case. First. did one or more of
the males run from the corner of 176th Street and St
Nicholas Avenue as Officer Carroll testified or did they
walk away from the car and continue walking along 176th
Street as defendant stated?  Second, did the males place
the bags into the trunk and then cross to the south side of
the street without any conversation or  interchange with
defendant  as Officer Carroll recollects or as the
defendant stated, did the males place the bags into the
trunk of the car and then give the defendant the keys so
that she could drive the car away?

    In short,  I find that the defendant's conduct in the
early morning on April 21st, does not give rise to a
reasonable suspicion that  criminal  activity  was  afoot.
  Taken  individually collectively the specific facts
articulated by Officer Carroll do not amount to much and
are in several pivotal respects incredible when placed side
by side with the contemporaneous recollection of the
defendant.   In short,  they fail to constitute a
reasonable suspicion that the defendant was engaged in
criminal activity.

    While an investigative stop need not be based on
probable cause,  it must be predicated on a reasonable
suspicion based on specific facts and reasonable inferences
which can be drawn from those  facts.   See  generally
Glover,  957  F.2d at  1008.   The Government urges me to
reiterate my brief opinion in United States v.  Germosen,
1995  WL  733572  (S.D.N.Y.  Dec.  12,  1995),  it  is
inapposite.  There, the defendant was stopped as he exited
a phone cloning operation in a building that had been under
surveillance for some time and where the investigating
officers had sufficient information for an intended raid at
the location under surveillance and another similar
enterprise.  See United States v. Germosen, Tr. at 9-11.

    Here there was no activity which, when viewed along
with the other events of April  21st,  rises to the  level
of  reasonable suspicion sufficient for an investigative
stop.   Because I find that the initial stop of defendant's
car was not justified,  it follows that the subsequent
search of her car, the seizure of the drugs from the trunk
and defendant's post arrest statements being the fruits of
a tainted search must and will be suppressed.

III.  Conclusion

For  the  reasons  stated above,  the  defendant's  motion
to suppress the 34 kilograms of cocaine and 2 kilograms of
heroin seized from the car she was driving at the time of
her arrest and her post arrest statements is granted.


SO ORDERED

New York, New York

January 22, 1996

 Hon. Harold Baer, Jr.


ENDNOTES

1. Jennifer Chapin, an L.L.M. candidate at the New York
University School of Law, contributed to the research for
this decision and order.

2. Although three police officers testified, only the
testimony of Officer Carroll is pertinent.  The testimony
of the other two officers, Officer Richard Clarke and
Detective Gene Torriente, a DEA Task Force Officer,
involved events that followed the incident at issue here.

3. President John F. Kennedy, Commencement Speech, Yale
University 1962.

4. The arresting officers transported defendant to the
33rd precinct where she was processed and interrogated by
members of the New York Drug Enforcement Task Force.  Tr.
at 14.  The defendant's statement was videotaped at the
33rd precinct.

5. Officer Carroll testified that "[t]he vehicle was
ahead of us.  I observed it driving slowly, much as we
were.  It pulled over to the north side of 176th Street,
close but not at the intersection of St. Nicholas, double
parked."  Tr. at 5.

6. The officers made no effort to stop any of the males at
that time nor did they radio for help to locate and arrest
the males.  Tr. at 55-56.  The only action taken to locate
the males occurred hours later when Officer Carroll joined
the defendant and other officers on a "drive-around" in an
attempt to locate the males. Tr. at 24.

7. Any quotations and references herein to defendant's
statement refer to a copy of the videotaped statement
provided to me by the Government and marked as Pl. Ex. 8.
Although the government did not prepare a transcript of the
videotape, one was prepared for the limited purposes of
this decision within my chambers.

8. At the end of her videotaped statement, defendant stated
that no police officers threatened her in exchange for her
testimony, nor did any officer promise her anything in
exchange for her testimony.   Defendant did not testify at
the suppression hearing.  It is unclear whether defense
counsel intended to call the defendant to the stand.
Midway through the proceedings on January 4, 1996 defense
counsel notified the Court that his client was ill with a
stomach ailment and needed to be removed from the
Courtroom.  Defendant waived her right to be present for
the remainder of the proceedings.  Tr. at 111, 128-29.

9. Defendant stated that her son and others compensated her
for a number of her trips to New York City.  On each of
those occasions, she came solely to pick up drugs and
return to Detroit.  Defendant further acknowledged that she
received gifts from her son and others in compensation and
that she knew that the money received and the gifts
purchased were from the proceeds of drug transactions.

10. At the time of her arrest, officers found 34 kilograms
of cocaine and 2 kilograms of heroin in the trunk of
defendant's car.  There is some question as to whether the
trunk was opened, and the drugs seized, prior or subsequent
to defendant's arrest The Government maintains, however,
that inevitably the drugs would have been discovered as the
result of a lawful inventory procedure required by the New
York City Police Department.

11. If the initial stop of the vehicle was not justified,
it follows that the subsequent search of the vehicle was
not lawful and but for the illegal stop, the evidence would
not have been discovered.  United States v. Betemit, 899 F.
Supp. 255, 263 (E.D. Va. 1995)  (citations omitted).

12. Interestingly, the Government offered no proof to
corroborate their statement that the area surrounding 176th
Street and St. Nicholas Avenue is a known hub for the drug
trade See Tr. at 5.

13. I would add that although Officer Carroll found the out
of state plate particularly relevant, I do not. In a number
of the cases I read, I noted that often cars will come to
New York City from New Jersey and Connecticut to purchase
drugs.  While I do not find this practice odd based on
their proximity to New York City, I would be less inclined
to suspect a car from Michigan to be here for the purpose
of purchasing drugs.  It is a long drive from Michigan to
New York just to carry out a drug transaction and
particularly when Detroit, Michigan is considered a "source
city" for drug trafficking just as New York.

14. Common Sense, February 14, 1776.

15. The Government cited the following cases: United States
v. Alexander, 907 F.2d 269 (2d Cir. 1990), cert. denied 498
U.S. 1095 (1991); United States v. Terry, 718 F. Supp. 1181
(S.D.N.Y. 1989), aff'd without opinion, 927 F.2d 593 (2d
Cir. 1991); United States v. Harley, 682 F.2d 398 (1982);
United States v. Lender, 985 F.2d 151 (1993); United States
v. Moore, 817 F.2d 1105 (4th Cir.), cert. denied, 484 U.S.
965 (1987); United States v. Briggman, 931 F.2d 705 (11th
Cir. 1991), cert. denied, 502 U.S. 938 (1991); United
States v. Kimball, 25 F.3d 1 (1st Cir. 1994); and United
States v. Franco-Munoz, 952 F.2d 1055 (9th Cir. 1991),
cert. denied,___U.S.___, 113 S. Ct. 3015 (1993).

16. See Alexander, 907 F.2d at 271 (defendant walked from
car looking around "furtively" and "checking-out" area;
when leaving driver signaled for turns not made, drove at
excessive speeds and ran at least two lights); Terry, 718
F. Supp. at 1183 (defendant made several erratic turns on
153rd Street before entering the Major Deegan Expressway
where she drove fast and was observed changing lanes);
Harley, 682 F.2d at 400 (defendant ran a red light once he
was aware of the officers following him and drove
on the Harlem River Drive at speeds in excess of 90 miles
per hour); Lender, 985 F.2d at 154 (defendant continued to
walk away from officer even when commanded to stop); Moore,
817 F.2d at 1107 (defendant observed moving away from scene
of crime and building with silent alarm ringing); Briggman,
931 F.2d at 709 (while trying to leave parking lot,
defendant drove evasively to avoid officer); Kimball, 25
F.3d at 7 (officer's knowledge of defendant's involvement
in prior burglaries along with defendant's presence in
school parking lot at midnight when rash of school
burglaries had occurred was sufficient to create a
reasonable suspicion); and Franco-Munoz, 952 F.2d at 1057
(driver of car reduced speed when overtaken by police car).

17. Furthermore, if the officers found the conduct of the
males to be evasive I question why the officers did not
attempt to stop the males themselves or, at the very least,
call for back-up assistance in locating the males.

18. The United States Attorney for the Southern District of
New York spent four years investigating and prosecuting
claims that officers assigned to the Washington Heights'
anti-crime unit Local Motion for corruption and unjustified
arrests.  Greg B. Smith, "Bitter Tears at Cop Conviction",
Daily News, Aug. 18, 1995.  During the investigation
Assistant United States Attorneys assigned to the case
interviewed numerous individuals who aided in uncovering
evidence that members of the anti-crime unit committed
perjury or made false statements in connection with
various arrests and the prosecution of both federal and
state crimes.  See Greg B. Smith, "NYPD to Get Feds' Info
on 34th PCT.", Daily News, June 2, 1995.  Meanwhile, the
34th precinct leads the city in corruption complaints filed
against its officers.  See John Marzulli, "Crooked-Cop
Complaints Climb 28%", Daily News, June 16, 1995.