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UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT


UNITED STATES OF AMERICA

v.

NESTOR PAGAN








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: Criminal No. 3:12cr267(AVC)
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RULING ON THE DEFENDANT’S MOTION TO SUPPRESS




On December 18, 2012, a grand jury indicted the defendant,

Nestor Pagan a/k/a Naeem Medina, on two charges related to the

illegal possession of a firearm. The indictment charged the

defendant with one-count of unlawful possession of a firearm by

a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(e), and one-count of possession of a firearm with an

obliterated serial number, in violation of 18 U.S.C. §§ 922(k)

and 924(a)(1).



The defendant has filed the within motion to suppress the

firearm at issue, arguing that it was seized without a warrant

and in violation of the Fourth Amendment to the United States

Constitution. Specifically, the defendant asserts that there was

no reason to believe he was armed and dangerous, and therefore,

law enforcement officers lacked the authority to conduct a

frisk.



On July 30, 2013, the court held an evidentiary hearing to

determine the admissibility of the firearm. On the basis of the

full record, including the testimony and other evidence

presented at the evidentiary hearing, the court concludes the

following.

FACTS



On December 2, 2012, at approximately 5:40 p.m., Norwich

Police Officer Sean Sullivan was driving in his marked police

cruiser when he noticed a Hyundai traveling in the opposite

direction with its headlamps off, in violation of Conn. Gen.

Stat. § 14-96a. Sullivan turned his car around and initiated a

traffic stop by turning on his emergency lights.1 The suspect

vehicle did not pull over immediately; rather, it continued

travelling for “some distance” at a low rate of speed. Sullivan

alerted police via radio that the car would not pull over and

requested backup. The police dispatcher reported that the car

was registered to one Christopher Nolan, who had an outstanding

warrant in Florida for a narcotics-related offense.



After travelling across a bridge and turning right onto

Chelsea Harbor Drive, the Hyundai pulled over and Officer

Sullivan approached the car. Sullivan observed a male driver, a

female front-seat passenger, and three male passengers in the

back seat. Sullivan noticed the female passenger shifting around

in her seat and looking back and forth nervously. Sullivan

testified that, because the female passenger was “chatting


1 The defendant concedes that the traffic stop was legal. See Def.’s Mot.
Suppress 3.



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nervously,” one of the passengers in the back seat told her to

“shut the fuck up.” The driver, Jahking Allah, then told

Sullivan that he was on parole and that he borrowed the car from

a friend. Officer Sullivan asked Allah if he had contact

information for the vehicle’s owner, to which he responded “I am

just a friend, I don’t have contact information.”



Norwich Police Officers Mark Dean and Greg McDonald then

arrived at the scene to provide support for Sullivan. Dean

recognized the defendant—who was seated in the back of the

vehicle—as a felon with prior narcotics and weapon-related

convictions. McDonald knew that the passengers in the back seat,

including the defendant, had reputations for involvement in

various street gangs or “street crews.” Specifically, McDonald

had personal knowledge that passenger Nathaniel Moore had a

criminal history and was designated as a member of a street gang

called the Bloods, that passenger Kinadre Rowe was a member of

“street crew” and had been involved in criminal activity in the

past, and, though he did not know Nestor Pagan personally,

McDonald knew he had a reputation as a member of the Latin Kings

and for being a violent person.



The police officers thereafter removed the passengers from

the car. Dean escorted the defendant to the sidewalk where the

defendant told him that he had a gun in his possession. Dean

then placed the defendant in handcuffs and found a black Ruger



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.380 handgun in his right jacket pocket.

DISCUSSION



The defendant asserts that, although there was a

justifiable reason to stop the vehicle, there was no reason to

believe the defendant was armed and dangerous and, therefore,

the police officers lacked the authority to conduct a frisk. The

government opposes the motion and argues that, viewing all the

circumstances of the vehicle stop together, the police officers

had a reasonable suspicion to justify a frisk of the defendant.

Specially, the government asserts that there was reasonable

suspicion that the defendant was armed and dangerous.



The Fourth Amendment to the U.S. Constitution provides that

“[t]he right of the people to be secure in their person, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the person

or things to be seized.” U.S. Const. Amend IV. Subject to

several well-established exceptions, the Fourth Amendment

requires governmental officials to obtain a search warrant in

order to conduct a search or seizure. See e.g., McCardle v.

Haddad, 131 F.3d 43, 47 (2d Cir. 1997) (listing exceptions to

the warrant requirement). Police have constitutional authority

consistent with the Fourth Amendment to briefly detain a suspect



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when an officer has a reasonable suspicion that “criminal

activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968)

(construing the Fourth Amendment as permitting police officers

to briefly detain an individual for questioning if they have a

reasonable, articulable suspicion that the individual may be

engaging in, or is about to engage in, criminal activity, and

may frisk him if they have a reasonable suspicion that he may be

armed and dangerous). While reasonable suspicion is a less

demanding standard than probable cause, the Fourth Amendment

requires at least a minimal level of objective justification for

making the stop. See Illinois v. Wardlow, 528 U.S. 119, 123

(2000).



The court must examine the “totality of the circumstances”,

when deciding whether the police officers at the scene had an

“articulable and objectively reasonable belief” sufficient to

justify a Terry stop. See McCardle v. Haddad, 131 F.3d 43, 49

(2d Cir. 1997) (quoting Michigan v Long, 463 U.S. 1032, 1051

(1983)). Police officers “must be able to articulate more than

an ‘inchoate and unparticularized suspicion or “hunch”’ . . .

[because] [t]he Fourth Amendment requires ‘some minimal level of

objective justification’ for making the stop.” United States v.

Sokolow, 490 U.S. 1, 7 (1989).



If, after lawfully stopping a vehicle, an officer has

reason to believe that he is dealing with an individual who is



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armed and dangerous, he may conduct a frisk to search for

weapons for his protection. See Arizona v. Johnson, 555 U.S. 323

(2009) (describing the “two conditions” for a constitutional

Terry “stop and frisk”: (1) the officer has reasonable suspicion

“that the person apprehended is committing or has committed a

criminal offense”; and (2) “to proceed from a stop to a frisk,

the police officer must reasonably suspect that the person

stopped is armed and dangerous”); see also Adams v. Williams,

407 U.S. 143, 146, (1972) (stating that a frisk is justified

when an officer reasonably believes that a suspect is armed and

dangerous because it “allow[s] the officer to pursue his

investigation without fear of violence”). “The officer need not

be absolutely certain that the individual is armed; the issue is

whether a reasonably prudent [person] in the circumstances would

be warranted in the belief that his safety or that of others was

in danger.” Terry v. Ohio, 392 U.S. 1, 27 (1968).



Here, the defendant does not dispute that Sullivan was

justified in pulling the vehicle over because it did not have

its headlights on. Thus, the only issue for the court to

determine is whether the officers had a reasonable suspicion

that the occupants were armed and dangerous. See Arizona v.

Johnson, 555 U.S. 323, 332 (2009).

As a threshold matter, the court is not convinced Dean’s

actions rose to the level of a pat down search or frisk. The



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testimony at the hearing provided the defendant volunteered that

he had a gun in his possession before a frisk occurred. That

being the case, the court is not sure a “reasonable suspicion”

analysis is necessary. However, assuming arguendo that whatever

occurred here does rise to the level of a “frisk,” the court

concludes that, based on the totality of the circumstances, Dean

had the requisite reasonable suspicion to frisk the defendant.

Specifically, it was reasonable for Dean to suspect the

defendant was armed and dangerous.



First, the second circuit has held that efforts to flee or

evade law enforcement officers provide additional grounds to

support reasonable suspicion. United States v. Swindle, 407 F.3d

562, 568 (2d Cir. 2005). This includes evasive efforts that take

place between the time period when officers attempt to initiate

a stop and the point when the stop is secured. See Illinois v.

Wardlow, 528 U.S. 119, 124 (2000); United States v. Swindle, 407

F.3d 562, 568 (2d Cir. 2005) (recognizing that actions of a

defendant, including evasive actions, between the time officers

attempt to initiate a stop and the time the defendant is

actually stopped, may support reasonable suspicion). There is a

dispute over whether the suspect vehicle attempted to evade

Sullivan. Specifically, the defendant argues that it is only a

short distance between the place where Sullivan activated his

lights and where Allah pulled the suspect vehicle over. The fact



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remains, however, that the police dispatch recordings in

evidence provide that Sullivan repeatedly stated that the

vehicle would not pull over. Rather, the suspect vehicle

continued for some distance at a low rate of speed, crossed a

bridge, and turned onto another street before coming to a stop.

By not pulling over immediately, and travelling at a low rate of

speed, the car would have likely driven for several minutes

before stopping. This is supported by Sullivan’s multiple

references to the vehicle’s refusal to pull over. Thus,

Sullivan’s suspicion that the passengers in the suspect vehicle

were attempting to “buy time” in order to conceal or destroy

contraband would justifiably be raised.



Second, the police officers knew that several of the

passengers, including the defendant, were associated with

violent street gangs, thus heightening their suspicion that one

or more of them could be armed and dangerous. Specifically,

McDonald testified that he knew Nathaniel Moore, a passenger of

the back seat of the car, to be a known member of a violent

street-gang called the Bloods. McDonald further testified that

he knew Kiandre Rowe, another passenger in the back of the car,

to be a member of a local “street crew,” and that he had a

reputation for being a violent person. McDonald testified that

he did not know the defendant personally, but recognized his

name because he had a reputation for being associated with a



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violent street gang called the Latin Kings. Dean testified that

he knew the defendant personally, that he was a convicted felon,

and that he had a reputation for being a violent person.



Third, Sullivan noticed the female passenger acting

nervously as he approached the car. There was testimony that one

of the passengers in the back seat told her to “shut the fuck

up,” further heightening the police officer’s suspicion. Fourth,

the police officers knew Allah was on parole, and that he did

not have contact information for the vehicle’s owner,

Christopher Nolan, for whom there was an outstanding arrest

warrant.

In considering the “totality of the circumstances,” these

facts provided Dean with the requisite reasonable suspicion to

conduct a frisk. Specifically, these facts would lead a

reasonably prudent person to suspect that the defendant was

armed and dangerous. Accordingly, the court concludes that

Officer Dean’s frisk of the defendant, if it can be

characterized as such, was justified. The motion to suppress is

DENIED.



It is so ordered this 31st day of July 2013, at Hartford,

Connecticut.





________ /s/________________
Alfred V. Covello
United States District Judge

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