U.S. v. Gonzalez, --- F.Supp.3d ---- (2015)

of being armed, the duration of the stop, and
the physical treatment of the suspect, including
whether or not handcuffs were used. U.S.C.A.
Const.Amend. 4.

2015 WL 2452405
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
UNITED STATES
v.
Christian GONZALEZ, Defendant.
No. 14 Cr. 705(PAE).

 

Cases that cite this headnote
[2]

A permissible investigative stop may become
an unlawful arrest if the means of detention
are more intrusive than necessary. U.S.C.A.
Const.Amend. 4.

Signed May 22, 2015.

Synopsis
Background: Defendant was charged with possession of
controlled substance with intent to distribute and possession
of firearm in furtherance of drug trafficking. Defendant
moved to suppress gun recovered from his person during stop,
crack cocaine found during later strip search, and statements
made on both occasions.

Arrest
Arrest Distinguished

Cases that cite this headnote
[3]

Arrest
Particular Cases
Initial stop of suspect did not ripen into de facto
arrest, and thus officers required only reasonable
suspicion, rather than probable cause, to conduct
stop; after officer saw bulge in suspect's pocket,
officer placed his hand on suspect's arm or
shoulder to lead him out of oncoming traffic,
after suspect stated that he had gun in his pocket,
one officer held suspect's hands behind his back
while other officer recovered gun, officer did
not draw his weapon, and officers handcuffed
suspect only after recovering gun. U.S.C.A.
Const.Amend. 4.

Holdings: The District Court, Paul A. Engelmayer, J., held
that:
[1] initial stop of defendant did not ripen into de facto arrest;
[2] officers had reasonable suspicion that defendant had
engaged in criminal activity; and
[3] government failed to establish that strip search was
reasonable by preponderance of evidence.

Cases that cite this headnote
Motion granted in part and denied in part.
[4]

West Headnotes (18)

[1]

The Fourth Amendment permits brief
investigative stops when a law enforcement
officer has a particularized and objective basis
for suspecting the particular person stopped of
criminal activity. U.S.C.A. Const.Amend. 4.

Arrest
Arrest Distinguished
In determining whether an investigatory stop is
sufficiently intrusive to ripen into a de facto
arrest, the a court considers the amount of force
used by the police, the need for such force,
and the extent to which an individual's freedom
of movement was restrained, and in particular
such factors as the number of agents involved,
whether the target of the stop was suspected

Arrest
Reasonableness; Reason or Founded
Suspicion, Etc

Cases that cite this headnote
[5]

Arrest
Reasonableness; Reason or Founded
Suspicion, Etc

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 U.S. v. Gonzalez, --- F.Supp.3d ---- (2015)

Reasonable suspicion to justify an investigatory
stop must be based on something more
substantial than inarticulate hunches; it requires
specific and articulable facts which, taken
together with rational inferences from those
facts, reasonably warrant that intrusion.
U.S.C.A. Const.Amend. 4.

[9]

Officers had reasonable suspicion that suspect
had engaged in criminal activity, justifying
investigatory stop of suspect; officers received
anonymous tip that heavyset Hispanic man had
gun, officers saw bulge in sweatpants pocket
of suspect who matched tipster's description,
and bulge caused suspect's sweatpants to sag to
significant degree. U.S.C.A. Const.Amend. 4.

Cases that cite this headnote
[6]

Arrest
Reasonableness; Reason or Founded
Suspicion, Etc
The reasonable suspicion standard for
investigatory stops is not high; it is
considerably less than proof of wrongdoing by
a preponderance of the evidence, and obviously
less than is necessary for probable cause.
U.S.C.A. Const.Amend. 4.

Cases that cite this headnote
[10]

Arrest
Reasonableness; Reason or Founded
Suspicion, Etc
The reasonable suspicion necessary to justify
an investigatory stop is dependent upon both
the content of information possessed by police
and its degree of reliability; in evaluating
the sufficiency of the information available,
the court must view the totality of the
circumstances through the eyes of a reasonable
and cautious police officer on the scene.
U.S.C.A. Const.Amend. 4.

Arrest
Reasonableness; Reason or Founded
Suspicion, Etc
Unlike a tip from a known informant whose
reputation can be assessed and who can be
held responsible if her allegations turn out to
be fabricated, an anonymous tip alone seldom
demonstrates the informant's basis of knowledge
or veracity, for purposes of reasonable suspicion
to justify an investigatory stop. U.S.C.A.
Const.Amend. 4.

Cases that cite this headnote
[7]

Arrest
Particular Cases

Cases that cite this headnote
[11]

Arrest
Grounds for Stop or Investigation
A stop based upon an anonymous tip is only
warranted where the tip is established to be
reliable in its assertion of illegality, not just in
its tendency to identify a determinate person.
U.S.C.A. Const.Amend. 4.

Cases that cite this headnote
Cases that cite this headnote
[8]

Arrest
Reasonableness; Reason or Founded
Suspicion, Etc
Reasonable suspicion to justify an investigatory
stop can arise from information supplied by
another person as long as that information
has sufficient indicia of reliability. U.S.C.A.
Const.Amend. 4.

[12]

Arrest
Reasonableness; Reason or Founded
Suspicion, Etc
Personal observations made by the officers
that corroborate information furnished by an
unknown and unaccountable tipster may provide
the basis for a finding of reasonableness of the
investigatory stop. U.S.C.A. Const.Amend. 4.

Cases that cite this headnote
Cases that cite this headnote

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2

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[13]

Arrest
Persons and Personal Effects; Person
Detained for Investigation

Cases that cite this headnote
[17]

Before police officers conduct any strip search
of an arrestee, the Fourth Amendment requires
an individualized reasonable suspicion that
the arrestee is concealing weapons or other
contraband underneath his clothing. U.S.C.A.
Const.Amend. 4.

To justify a more invasive strip search, police
officers must have a stronger factual basis
underlying their reasonable suspicion. U.S.C.A.
Const.Amend. 4.
Cases that cite this headnote

Cases that cite this headnote
[14]

Arrest
Persons and Personal Effects; Person
Detained for Investigation
To establish reasonable suspicion to justify a
strip search, officers must point to specific
objective facts and rational inferences that
they are entitled to draw from those facts in
light of their experience; reasonable suspicion
may be based on the crime charged, the
particular characteristics of the arrestee, and/
or the circumstances of the arrest. U.S.C.A.
Const.Amend. 4.

Searches and Seizures
Skin, Strip, and Body Searches

[18]

Criminal Law
Weight and Sufficiency
Government failed to carry its burden on
defendant's suppression motion of establishing
that strip search was reasonable by
preponderance of evidence; defendant was
required to take off his shirt and pants, pull down
his underwear, open his legs, and squat, and there
was no credible officer testimony establishing
specific facts and circumstances that motivated
strip search. U.S.C.A. Const.Amend. 4.
Cases that cite this headnote

Cases that cite this headnote
[15]

Searches and Seizures
Skin, Strip, and Body Searches

Attorneys and Law Firms

Whether a particular strip search is constitutional
turns on an objective assessment of the facts and
circumstances confronting the searching officer
at the time of the search. U.S.C.A. Const.Amend.
4.

Max Clement Nicholas, Spears & Imes LLP, New York, NY,
for United States.
Robert M. Baum, Clay Hubbard Kaminsky, Sabrina P. Shroff,
Federal Defenders of New York Inc., New York, NY, for
Defendant.

Cases that cite this headnote
[16]

Searches and Seizures
Skin, Strip, and Body Searches
The reasonableness of a strip search is
determined by assessing, on the one hand, the
degree to which it intrudes upon an individual's
privacy and, on the other, the degree to which
it is needed for the promotion of legitimate
governmental interests. U.S.C.A. Const.Amend.
4.

OPINION & ORDER
PAUL A. ENGELMAYER, District Judge:
*1 On July 2, 2014, two New York Police Department
(“NYPD”) police officers responded to an anonymous tip to
the effect that a Hispanic male, wearing distinctive clothing
and located at a particular intersection in the Bronx, was
in possession of a silver pistol. Moments after arriving at
that intersection, and after observing that a man matching
that description had a suspicious bulge in his pants, the

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officers stopped, questioned, and ultimately arrested the man
—defendant Christian Gonzalez.
Gonzalez, who was later indicted, now seeks to suppress (1)
the gun that the officers recovered from his person, (2) crack
cocaine that officers recovered from him during a later strip
search at the police precinct, and (3) statements he made
on both occasions. He argues, on three grounds, that his
constitutional rights were violated: First, he argues that the
officers lacked justification to stop him. Second, he argues
that the officers lacked justification to conduct a strip search.
Third, he claims that he was never informed of his Miranda
rights.
For the following reasons, Gonzalez's motion to suppress is
denied as to the gun and associated statements, but granted as
to the narcotics and associated statements.

I. Procedural History
On July 2, 2014, Gonzalez was arrested. On October 23, 2014,
a Grand Jury returned an Indictment, charging Gonzalez with
(1) possession of a controlled substance, crack cocaine, with
intent to distribute it, and (2) possession of a firearm in
furtherance of drug trafficking. Dkt. 7.
On January 9, 2015, Gonzalez filed a motion to suppress
physical evidence that police officers obtained and statements
he made on July 2, 2014, Dkt. 17, along with a supporting
memorandum of law, Dkt. 18 (“Def. Br.”), a declaration
by his counsel, Dkt. 19 (“Kaminsky Decl.”), and a sworn
declaration from Gonzalez attesting to the events of July 2,
2014, Dkt. 20. That declaration was amended on January 12,
2015. Dkt. 21 (“Gonzalez Decl.”). On January 30, 2015, the
Government submitted a memorandum of law in opposition,
Dkt. 25 (“Gov. Br.”), and a sworn declaration from the
arresting officer, Dkt. 26 (“Rios Deck”).
On March 31, 2015, the Court began a suppression hearing
and heard testimony from three witnesses. See Dkt. 37 (“Tr.”).
On May 20, 2015, the Court concluded that hearing and heard
argument.

II. Factual Findings
A. Evidence Presented
The facts found by the Court are based on the evidence
adduced at the suppression hearing, which principally
consisted of the testimony of three police officers. 1 Officers

Luis Rios and Anthony Grosso were present for the initial
stop, questioning, and arrest. Officers Rios and Joshua Marte
were present for the strip search at the police precinct,
although only Officer Rios was in position to testify as to the
circumstances that led to the strip search. Gonzalez submitted
a sworn declaration before the hearing, but he did not testify.
The Court also received several exhibits, namely, an audio
recording of the police radio transmission, a stop-and-frisk
form completed by Officer Rios, the firearm and narcotics
recovered from Gonzalez's person, an audio recording of an
Internal Affairs Bureau (“IAB”) interview with Officer Rios,
and various photographs.
*2 At the Court's request, the Government provided, and
the Court received, supplemental exhibits after the hearing,
namely, a copy of the 49th Precinct's log book from July
2, 2014, a report indicating the weight of the firearm seized
from Gonzalez's pocket, Gonzalez's rap sheet, an FBI log
listing when police officers have searched for Gonzalez's rap
sheet, and several documents related to Officer Rios's internal
disciplinary proceedings. Dkt. 33, 35, 39.

B. Credibility of Officer Rios
A central issue as to both parts of Gonzalez's suppression
motion is whether to credit the testimony of Officer Rios.
Officer Rios's testimony at the suppression hearing raised
substantial issues as to his overall credibility. The Court
therefore addresses his credibility as a threshold issue. After
giving the matter close attention, the Court, regrettably, finds
that Officer Rios was a sufficiently compromised witness
that, except where his testimony was corroborated or had
other indicia of reliability, the Court cannot generally treat
the controverted parts of his testimony as truthful. This
conclusion has two bases.

1. Disciplinary Violations Bearing on Credibility
In his capacity as a NYPD officer, Officer Rios has pled
guilty to three internal disciplinary violations that bear on his
trustworthiness.
First, Officer Rios pled guilty to wrongfully embellishing
facts and circumstances surrounding an allegation that
another member of the NYPD struck him with a scooter.
Tr. 110. Officer Rios had claimed that another officer,
Officer Glynn, hit him with a police scooter outside of the
114th Precinct in Queens. Tr. 89–90. Officer Rios's original

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4

 U.S. v. Gonzalez, --- F.Supp.3d ---- (2015)

allegation was vivid and detailed; he asserted, for example,
that Officer Glynn hit him so hard that he went flying into the
air, Tr. 96, and that Officer Glynn smelled like alcohol, Tr.
103. Later, however, Officer Rios admitted and pled guilty to
falsely making those accusations. Tr. 94.
Second, Officer Rios pled guilty to making accusations
against other NYPD officers to the Civilian Complaint
Review Board (“CCRB”) and Office of Equal Employment
Opportunity (“OEEO”) with no legitimate purpose. Tr.
121. Specifically, Officer Rios had accused other officers,
including supervisors, of harassing him on several occasions.
Tr. 90–91. Again, he pled guilty to fabricating those
allegations. Tr. 90, 121.
Third, Officer Rios pled guilty to interfering with an official
NYPD investigation by lying to the IAB. Tr. 122–23. This
charge arose out of the IAB's investigation of Officer Rios's
allegations regarding harassment by other officers. Tr. 91.
During an interview, Officer Rios told IAB investigators
that he did not recall the substance of certain telephone
conversations he had had with representatives from the CCRB
and OEEO. Id. Officer Rios later admitted that, at the time of
the IAB interview, he had, in fact, remembered the pertinent
information and had falsely stated that he did not. Tr. 92.

2. False Testimony At, or Revealed
By, the Suppression Hearing
*3 Officer Rios's testimony at the suppression hearing was
also problematic on its own terms. During that testimony,
Officer Rios admitted to prior occasions in which he had
given false testimony. Equally disquieting, several aspects of
Officer Rios's testimony at the suppression hearing were, in
the Court's judgment, untruthful.
First, Officer Rios, at the suppression hearing, testified that,
as to two of the charges to which he pled guilty, those
guilty pleas were false—i.e., when he pled guilty before the
IAB, he was lying. Tr. 94. Thus, Officer Rios testified, it
had in fact been true that Officer Glynn had him with a
scooter, Tr. 89, and so, when Officer Rios pled guilty before
the IAB to wrongfully embellishing facts relating to that
accusation against Officer Glynn, Officer Rios was lying,
Tr. 110. Similarly, Officer Rios testified that he had, in fact,
been harassed by other officers, Tr. 91, and he had accurately
reported that harassment to the OEEO (but not the CCRB), Tr.
90–91. Thus, when Officer Rios later pled guilty before the

IAB to making accusations about such harassment without a
factual basis, he was again lying, i.e., he was not guilty, Tr.
121. Officer Rios explained that he had falsely pled guilty
before the IAB because he “wanted the case to be closed and
put behind [him] for [him] to move forward.” Tr. 92. To be
sure, Officer Rios's testimony as to these two prior incidents
left this Court uncertain on which occasion Officer Rios had
lied: (1) when he entered his guilty pleas before the IAB, as he
testified before this Court, or (2) when he testified before this
Court to the effect that he had lied before the IAB. Regardless,
Officer Rios's testimony at the suppression hearing revealed
that, either before the IAB or before this Court, he had given
untruthful testimony as to these important matters. 2
Officer Rios's testimony to the effect that he had pled guilty
twice despite being not guilty was sufficiently jarring that the
Court explored, during this testimony, whether there was a
rational explanation for doing so. The Court surmised that
perhaps Officer Rios's original claim that he had been hit
by the scooter of a drunken Officer Glynn had been true;
that Officer Rios's accusation to that effect against Officer
Glynn had triggered retaliatory harassment of him by other
officers; and that, to put an end to the harassment, Officer Rios
ultimately decided to renounce both his claim against Officer
Glynn and his claim of harassment by other officers, even
though both those claims were true. This theory would have
accounted for why Officer Rios had made his initial claims
against Officer Glynn and his ensuing claim of harassment.
It also would have explained Officer Rios's later decision,
against his apparent self-interest, to plead guilty to fabricating
those claims. However, Officer Rios did not account for
his guilty pleas in these terms. On the contrary, when the
Court pointedly asked Officer Rios whether he had falsely
pled guilty before the IAB to avoid harassment, Officer Rios
responded, no, and denied that the harassment he experienced
was related to the scooter incident involving Officer Glynn.
Tr. 94. Officer Rios's testimony thereby foreclosed this
relatively benign explanation for his decisions to plead guilty.
*4 As to the third charge to which he pled guilty, interfering
with an official NYPD investigation, Officer Rios did not
dispute the factual basis for this plea. He testified on direct
examination that he had lied to the IAB when he had
stated that he did not remember certain calls he had made
to the OEEO. Tr. 91–92. Asked about this incident on
cross-examination, however, Officer Rios was evasive. For
example:
Q. Could you tell us how you interfered, sir?

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5

 U.S. v. Gonzalez, --- F.Supp.3d ---- (2015)

A. By not continuing the investigation.

A. No.

Q. That's how you interfered?
A. Yes.

Q. Your testimony today under oath is that you did not say
during your March 18th phone call that Officer Glynn hit
you when he was drunk. Is that your testimony today?

...

A. I never made a phone call and said that.

Q. Did you lie to the IAB?

Q. My question, did you accuse Officer Glynn of being
drunk when he hit you with a scooter?

A. In some ways.

A. Again, I never said that.

...
Q. Why don't you tell us what the some ways were.
A. Again, they transferred me to the Bronx to the 49
Precinct. Due to the fact that way I plead guilty and the
case gets closed, and it is put behind me and put away and
I could continue my service. And I pleaded guilty to those
charges, that way I could continue doing what I do.
Q. That's not what this charge is, correct?
A. Which one?
Q. Charge no. 3, the charge that is wrongfully interfered
with an official department investigation. You didn't plead
guilty to that based on the facts you just recited, correct?
A. What?
Q. Let me put it to you this way. There were findings made
against you that showed you [how] you interfered with an
official department investigation, correct?
A. I'm not sure what you are saying.
Tr. 122–23. The Court's assessment is that Officer Rios's
evasiveness in the face of these and other fair questions
regarding his lies to the IAB investigators reflected a
deliberate refusal to own up fully to his dishonesty before the
IAB.
At other points, Officer Rios's testimony before this Court
was demonstrably false. Most strikingly, Officer Rios
adamantly, and repeatedly, insisted that he had never accused
Officer Glynn of being drunk. Tr. 97, 98, 99, 101. The
following exchange is illustrative:
Q. Did you accuse Officer Glynn of being drunk when he
hit you with the scooter?

THE COURT: To be clear, at no point did you ever claim
that Officer Glynn was drunk when he hit you?
THE WITNESS: Correct.
Q. Is that your testimony, sir?
A. Yes.
Tr. 97–98; see also Tr. 99 (“I never made that allegation”
that Officer Glynn was “drunk when he hit [Rios] with the
scooter”); Tr. 101 (“I never accused him of being drunk”).
On cross-examination, however, Officer Rios was confronted
with an audio recording of a 2009 interview of him by IAB
investigators (DX A). The recording of that interview reveals
that Officer Rios unambiguously told the IAB that Officer
Glynn smelled like alcohol at the time of the alleged accident.
Tr. 103. After that tape was played, Officer Rios admitted—
as was unavoidable—that “[t]hat's what I said at the time.”
Id. But when questioned further, Officer Rios stated that he
could not recall making that allegation. Tr. 107, 118–19.
*5 This series of answers was incredible. It was apparent
that the incident in which Officer Rios made accusations
before the IAB as to Officer Glynn—ultimately leading to
Officer Rios's guilty pleas—had been a searing experience in
Officer Rios's professional life. Officer Rios, in fact, was later
charged by the IAB with making that allegation falsely, pled
guilty to doing so, and thereby faced significant punishment.
See Tr. 126 (noting that Officer Rios lost 25 vacation days as a
result of his plea and “easily” could have been fired); Dkt. 35,
Ex. 1, at 1, 3 (identifying Officer Rios's penalty as “forfeiture
of 25 vacation days and one year dismissal probation”).
It defied credibility that Officer Rios could now deny (1)
making such a serious allegation about Officer Glynn, and
(2) recalling having done so. And, tellingly, Officer Rios, in
pleading guilty, admitted that he “had continuously claimed

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 U.S. v. Gonzalez, --- F.Supp.3d ---- (2015)

that he didn't recall making those allegations” to the IAB,
even when confronted with “the tape with his voice on it.”
Dkt. 35, Ex. 1, at 2. The conclusion is unavoidable: As to this
point, Officer Rios gave false testimony to the Court, under
oath, in response to multiple questions. See Tr. 97, 98, 99,
101, 107, 118.
Also problematic was Officer Rios's testimony that he could
not remember (1) accusing a Lieutenant Morales of writing
an accident report as to the scooter incident that wrongfully
omitted that Officer Glynn was drunk, Tr. 112, 114, 115; or
(2) the other NYPD internal disciplinary charges to which
he has pled guilty, Tr. 128. And Officer Rios was evasive
on other points. He initially acknowledged, for example, that
the IAB had informed him that he was under investigation.
Tr. 100. But moments later, he claimed that he did not know
whether the IAB had been investigating him:
Q. After the allegations you made, the IAB was starting to
investigate you, correct?
A. I don't know if they were investigating me personally.
Q. Well, who were they interviewing?
A. They were interviewing me but not investigating me, as
far as I know. I'm a little confused on this.
Q. So it is your testimony today, under oath, that when the
IAB came to your house you did not know that they were
investigating allegations of misconduct against you?
A. When they came to my house, correct?
Q. Right.

be credited. On the one hand, Officer Rios's false testimony
and false statements all related solely to his disciplinary
history and dealings with other officers. His demonstrable or
admitted falsehoods did not concern the events at issue here
specifically or his police work in the field generally. In fact,
as the Government emphasized at argument, Officer Rios's
account of the initial stop and the mechanics of the strip search
were generally corroborated by Officer Grosso and Officer
Marte, respectively, suggesting that he was truthful as to those
discrete events. But, in the Court's judgment, the taint from
Officer Rios's record of mendacity cannot be cordoned off,
topically or temporally. He has made too many falsehoods, in
too many contexts, to permit such compartmentalization.
*6 Particularly significant, Officer Rios lied before this
Court, under oath, and was repeatedly evasive in the very
suppression hearing at which he testified as to the events
concerning Gonzalez. If the solemnity of testifying before this
Court did not impress upon Officer Rios the need to tell the
truth as to himself, there is no reason to treat his testimony as
to another person, Gonzalez, as any more truthful. Certainly
there is no reason to assume that his mendacity would be
constrained by respect for Gonzalez's rights or interests. And,
having closely scrutinized Officer Rios as he testified, the
Court perceived that he was unacceptably casual, ironical, and
dismissive. He did not appear to have approached courtroom
testimony with anything like the necessary care.
The Court is, therefore, left with no confidence that any
part of Officer Rios's testimony can be assumed to be true,
at least as to any significant controverted fact. The Court
therefore declines to credit his testimony, except insofar as
that testimony is either corroborated by other evidence or is
intrinsically reliable.

A. No. I did not know.
Tr. 105; see also Tr. 107, 108. The Court views Officer
Rios's claim that he did not know that he had been
under investigation as particularly suspect: As Officer Rios
elsewhere admitted, he had falsely told IAB investigators that
he did not recall telephone calls that he made to the OEEO
complaining of harassment, whereas, in fact, he did remember
those calls. Tr. 91–92, 125.

3

3. Overall Assessment
The Court has carefully considered whether Officer Rios's
testimony as to the events involving defendant Gonzalez can

C. Facts Established
Excluding the uncorroborated testimony of Officer Rios, the
remaining evidence presented at the hearing established the
following:
On July 2, 2014, an unidentified man called 911 and reported
that he had seen a male with a silver pistol near the
intersection of White Plains Road and Morris Park Avenue
in the Bronx, specifically, at a bus stop across the street from
a Dunkin' Donuts. Kaminsky Decl. ¶ 3. The caller described
the suspect as “Hispanic,” “a little heavyset,” and wearing
“an American flag shirt” and “gray sweatpants.” Id. When
asked for his name, the caller stated that he would “rather stay
anonymous.” Id. The 911 operator relayed information about

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 U.S. v. Gonzalez, --- F.Supp.3d ---- (2015)

the call to the police dispatcher. Id. ¶ 4. The police dispatcher,
in turn, put out an alert. Id. ¶ 5.

did not complete any paperwork related to the arrest. Tr. 25–
26, 40, 43–44.

At that time, Officers Rios and Grosso were in a police
vehicle on routine patrol. Tr. 13 (Grosso), 69 (Rios). They
received a “gun run,” a police radio transmission reporting
an active situation involving a firearm. Id. The “gun run”
stated that there was a man with a gun near the intersection
of White Plains Road and Morris Park Avenue in the Bronx,
specifically, at a bus stop across the street from a Dunkin'
Donuts. Tr. 14–15, 69; GX 1. The suspect was described as
a heavyset, Hispanic male wearing an American flag t-shirt.
Tr. 15, 69; GX 1. Within a couple of minutes, Officers Rios
and Grosso arrived at White Plains Road and Morris Park
Avenue, Tr. 16, where they saw only one person who matched
the description given in the gun run—a heavyset, Hispanic
male wearing an American flag t-shirt. Tr. 18, 31, 70. From
the vehicle, Officer Grosso observed that the suspect, later
identified as Christian Gonzalez, had “a bulge and sag in his
sweatpants pocket.” Tr. 19.

At the precinct, Officer Rios detained Gonzalez in a small
holding cell with one or two other arrestees. Tr. 147 (Rios);
Gonzalez Decl. ¶ 10; see also GX 5 (photo of the holding
cell). Gonzalez lay down on the narrow bench attached to the
cell walk Tr. 79; Gonzalez Decl. 11. At some point, Officer
Rios approached Officer Marte for assistance conducting a

Officers Rios and Grosso stopped their car in front of the
Dunkin' Donuts and exited the vehicle. Tr. 19. As they
approached Gonzalez on foot, both officers had a clear view
of the bulge in Gonzalez's pants. Tr. 20, 35, 71–72. Although
Officer Grosso could not make out the shape of the bulge, he
observed that it caused Gonzalez's “pants to sag to a certain
extent that is ... not consistent with other items you would
place in your pocket.” Tr. 35–36. Officer Grosso did not draw
his weapon. Tr. 20. He could not recall whether Officer Rios
drew his weapon, Tr. 37, and Officer Rios testified that he did
not, Tr. 72.
*7 When the officers reached Gonzalez, he was walking into
oncoming traffic and attempting to cross the street. Tr. 21–22.
Officer Grosso placed his hand on Gonzalez's arm or shoulder
and guided him back to the sidewalk. Tr. 22. 4 In response to
a question from one of the officers, Gonzalez stated that he
had a gun in his right pocket. See Tr. 22–23, 33, 73; Gonzalez
Decl. ¶ 8. At a safe portion of the roadway, Officer Rios
held Gonzalez's hands behind his back, while Officer Grosso
reached into Gonzalez's pocket and recovered the gun. Tr. 23,
73. The gun, which was silver in color, was later identified
as an operable semiautomatic Bryco Arms .380 caliber pistol
with a defaced serial number. Tr. 23, 39; GX 3. The officers
then arrested Gonzalez and took him to the 49th precinct in
the Bronx. Tr. 25, 73. Because Officer Rios was the arresting
officer, Officer Grosso had no further contact with Gonzalez
after they arrived at the precinct, did not voucher the gun, and

strip search of Gonzalez. Tr. 47–48 (Marte). 5
Officers Rios and Marte escorted Gonzalez into the bathroom
next to the holding cells. Tr. 48–49, 80–81; Gonzalez Decl.
¶ 11. At Officer Rios's direction, Gonzalez took off his shirt
and pants, pulled down his underwear, opened his legs, and
squatted. Tr. 49, 81; Gonzalez Decl. ¶ 11. As Gonzalez
squatted down, a clear plastic package filled with a white
substance fell out of his buttocks. Tr. 49–50, 52–53, 81–82. 6
The substance later tested positive for cocaine. Kaminsky
Decl., Ex. B (“Compl.”) ¶ 7. Gonzalez told the officers
“that's not mine,” and “you found the gun but not the drugs.”
Id. ¶ 6(v). Officer Marte believed that Gonzalez was drunk
during the search because he smelled like alcohol, and he was
behaving in a talkative and hyperactive manner. Tr. 54, 66.
Gonzalez attested that none of the officers advised him of his
Miranda rights when he was arrested, or at any point before
the strip search. Gonzalez Decl. ¶ 12.

III. Discussion
Gonzalez moves to suppress the gun seized from his pocket
during the initial stop, the narcotics recovered from his rectum
during a later strip search, and statements made at both
times. The Court addresses Gonzalez's motion to suppress
each item of physical evidence, along with the corresponding
statements, in turn.

A. Gonzalez's Motion to Suppress the Gun
The Court must first determine whether the initial stop of
Gonzalez qualified as a Terry stop or an arrest. Depending on
that determination, the Court must then resolve whether the
officers had reasonable suspicion to conduct a Terry stop, or
probable cause to arrest Gonzalez.

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1. Whether the Initial Stop
Was a Terry Stop or an Arrest
*8 [1] [2] “In determining whether an investigatory stop
is sufficiently intrusive to ripen into a de facto arrest, the
Second Circuit considers the ‘amount of force used by the
police, the need for such force, and the extent to which an
individual's freedom of movement was restrained, and in
particular such factors as the number of agents involved,
whether the target of the stop was suspected of being armed,
the duration of the stop, and the physical treatment of the
suspect, including whether or not handcuffs were used.’ ”
United States v. Vargas, 369 F.3d 98, 101 (2d Cir.2004)
(quoting United States v. Perea, 986 F.2d 633, 645 (2d
Cir.1993)). “A permissible investigative stop may become an
unlawful arrest if the means of detention are ‘more intrusive
than necessary.’ ” United States v. Tehrani, 49 F.3d 54, 61
(2d Cir.1995) (citation omitted); see also United States v.
Clark, 552 Fed.Appx. 40, 43 (2d Cir.2014) (summary order)
(“[T]he central consideration is the officers' justification for
their actions: acts that are typically inconsistent with a mere
stop, such as drawing a firearm, will not convert a stop into
a de facto arrest if they represent reasonable precautions in
light of the circumstances.”); Posr v. Doherty, 944 F.2d 91,
98 (2d Cir.1991) ( “Whether a seizure is an arrest or merely an
investigatory detention, depends on the reasonableness of the
level of intrusion under the totality of the circumstances.”).
[3] Based on the credible testimony of Officer Grosso, the
stop here was an investigative detention. Centrally important,
very limited time passed between when the officers initially
approached Gonzalez and when, having retrieved the gun
from his pants, they placed him in handcuffs and formally
arrested him. The actions taken by the officers during this
brief time window involved the use of only such force and
display of authority as was reasonably necessary under the
circumstances.
At first, after having seen the bulge in Gonzalez's pocket,
Officer Grosso placed his hand on Gonzalez's arm or shoulder
to lead him out of oncoming traffic. As “it is well established
that officers may ask (or force) a suspect to move as part of
a lawful Terry stop,” this restraint on Gonzalez's freedom of
movement did not transform the stop into an arrest. United
States v. Gori, 230 F.3d 44, 56 (2d Cir.2000).
After Gonzalez, in response to an officer's question, stated
that he had a gun in his pocket, Officer Rios held Gonzalez's

hands behind his back while Officer Grosso recovered the
weapon. During this brief stop, the Court finds, Officer
Grosso did not draw his weapon. 7 And the officers
handcuffed Gonzalez only after recovering the gun from his
pocket. 8 Accordingly, at each step, the officers' conduct
was no more intrusive than necessary to ensure their own
safety, the safety of others in the vicinity, and, given his
potential flight into oncoming traffic, Gonzalez's safety.
Compare United States v. Wiggan, 530 Fed.Appx. 51, 55 (2d
Cir.2013) (summary order) (holding that seizure was a stop,
not an arrest, where police officers briefly handcuffed and
searched a suspect who appeared to have a gun in his pocket),
with Oliveira v. Mayer, 23 F.3d 642, 646 (2d Cir.1994)
(collecting cases holding that seizures qualified as arrests only
where several officers surrounded suspects, brandished guns,
isolated and interrogated suspects in police cruisers, and/
or extensively searched suspects). The initial stop therefore
qualified as an investigative stop, not an arrest. 9

2. Whether the Officers Had
Reasonable Suspicion to Stop Gonzalez
*9 [4]
[5]
[6] The Court next inquires whether the
investigative stop of Gonzalez was supported by reasonable
suspicion of criminal activity. “The Fourth Amendment
permits brief investigative stops ... when a law enforcement
officer has ‘a particularized and objective basis for suspecting
the particular person stopped of criminal activity.’ ”
Navarette v. California, ––– U.S. ––––, 134 S.Ct. 1683,
1687, 188 L.Ed.2d 680 (2014) (citations omitted). Reasonable
suspicion must be based on something “more substantial than
inarticulate hunches”; it requires “specific and articulable
facts which, taken together with rational inferences from
those facts, reasonably warrant that intrusion.” Terry v. Ohio,
392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
However, the reasonable suspicion standard is “not high.”
Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416,
137 L.Ed.2d 615 (1997). It is “ ‘considerably less than
proof of wrongdoing by a preponderance of the evidence,’
and ‘obviously less' than is necessary for probable cause.’
” Navarette, 134 S.Ct. at 1687 (quoting United States v.
Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1
(1989)); see also United States v. Bailey, 743 F.3d 322, 332
(2d Cir.), cert. denied, –––U.S. ––––, 135 S.Ct. 705, 190
L.Ed.2d 461 (2014); United States v. Arvizu, 534 U.S. 266,
273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).

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[7]
[8] “The ‘reasonable suspicion’ necessary to justify
such a stop ‘is dependent upon both the content of information
possessed by police and its degree of reliability.’ ” Navarette,
134 S.Ct. at 1687 (quoting Alabama v. White, 496 U.S. 325,
330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). In evaluating
the sufficiency of the information available, “the court must
view the totality of the circumstances ‘through the eyes of a
reasonable and cautious police officer on the scene.’ ” Bailey,
743 F.3d at 332 (quoting United States v. Bayless, 201 F.3d
116, 133 (2d Cir.2000)). Reasonable suspicion can arise from
“information supplied by another person” as long as that
information has sufficient “indicia of reliability.” Adams v.
Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612
(1972).

*10 [12] The officers' observation that Gonzalez had
a bulge in his sweatpants pocket that caused his pants
to sag to a significant degree, Tr. 19–20, 35–36, was,
however, of a different character. Unlike a description of
Gonzalez's clothing, it tended to corroborate the tipster's
assertion that a person meeting Gonzalez's description was
in possession of a gun. Such “personal observations made
by the officers that corroborate information furnished by an
unknown and unaccountable tipster may provide the basis for
a reasonableness finding.” United States v. Muhammad, 463
F.3d 115, 122 (2d Cir.2006).

The Court has no difficulty crediting Officer Grosso's
testimony—and the consistent testimony of Officer Rios
[9]
[10] Here, the initial tip conveyed to the officers —to the effect that they saw such a bulge in Gonzalez's
—to the effect that a heavyset Hispanic man wearing an
sweatpants pocket and perceived it to be consistent with
American flag t-shirt, near the intersection of White Plains
a gun and inconsistent with items commonly stored in a
Road and Morris Park Avenue, had a gun—was insufficient
pocket. Tr. 35–36. This testimony was credible; it was not
to supply reasonable suspicion because the tip came from
disturbed by cross-examination. And the officers' observation
a wholly anonymous caller. “Unlike a tip from a known
of a bulge in Gonzalez's sweatpants accords with common
informant whose reputation can be assessed and who can be
sense: As the Court could tell when it inspected the gun
held responsible if her allegations turn out to be fabricated,
at the hearing, it was easily heavy and bulky enough—
‘an anonymous tip alone seldom demonstrates the informant's
approximately one pound, two ounces unloaded, see Dkt. 33,
basis of knowledge or veracity.’ ” Florida v. J.L., 529 U.S.
Ex. 3—to significantly weigh down, and create a bulge in,
266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (quoting
a suspect's sweatpants. See United States v. Price, No. 13
White, 496 U.S. at 329, 110 S.Ct. 2412). Accordingly, in J.L.,
Cr. 216(RRM), 2014 WL 558674, at *10 (E.D.N.Y. Feb. 11,
the Supreme Court held “that no reasonable suspicion arose
2014) (describing a .380 caliber Bryco semi-automatic pistol
from a bare-bones tip that a young black male in a plaid shirt
as “heavy enough, without its magazine, to cause the pocket
standing at a bus stop was carrying a gun.” Navarette, 134
in a pair of loose-fitting pants to sag”).
S.Ct. at 1688.
In similar cases, the Second Circuit has held that where
[11] Upon arriving at the scene, the officers observed that there has been an anonymous tip about a gun that has
a person matching the description provided, i.e., a heavyset
been corroborated by police observation of a bulge in the
Hispanic male wearing an American flag t-shirt, was present.
suspect's pants, there is reasonable suspicion to justify a Terry
This fact, however, also was insufficient to corroborate the
stop. In United States v. Manuel, 64 Fed.Appx. 823 (2d
anonymous tip: “That [a defendant] was the only individual
Cir.2003) (summary order), for example, the police received
in the area matching the description simply means that it was
an anonymous tip that three men with pistols were standing
that much easier to ‘correctly identify the person whom the
at a particular intersection in Buffalo, New York. Id. at 824.
tipster means to accuse.’ ” United States v. Freeman, 735 F.3d
When three officers arrived at the location minutes later, the
92, 99–100 (2d Cir.2013) (quoting J.L., 529 U.S. at 272, 120
intersection was deserted, but the officers continued to patrol
S.Ct. 1375). “A stop based upon an anonymous tip is only
the area. Id. About 20 minutes later, a person standing in the
warranted where the tip is established to be ‘reliable in its
doorway of a convenience store, whom the officers knew to
assertion of illegality, not just in its tendency to identify a
be the owner of that store, waved to the officers and pointed at
determinate person.’ ” Id. at 97 (quoting J.L., 529 U.S. at 272,
another person standing across the street. Id. When an officer
120 S.Ct. 1375); see also Navarette, 134 S.Ct. at 1688; United
approached the specified person, he observed a bulge in the
States v. Peterson, No. 12 Cr. 409(PAE), 2012 WL 4473298,
person's waistband. Id. at 825. The district court held, and the
at *6 (S.D.N.Y. Sept. 28, 2012), aff'd, 559 Fed.Appx. 92 (2d
Second Circuit affirmed, that under these facts, the officer had
Cir.2014) (summary order).
reasonable suspicion to stop the suspect. Id. at 825–26.

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suppress the gun seized from his person and the statements
Similarly, in United States v. Wiggan, 530 Fed.Appx. 51
(2d Cir.2013) (summary order), the police received an
anonymous tip that a man in a particular barbershop had
a gun in his pocket. Id. at 53. Two officers responded to
the dispatch, identified a man who fit the description, and
observed what appeared to be a pistol grip in the suspect's
waistband. Id. Given these facts, the district court held, and
the Second Circuit affirmed, that the officers had reasonable
suspicion to stop the suspect. Id. at 55–56.

10

*11 Courts outside the Second Circuit have similarly
concluded that an anonymous tip about a firearm corroborated
by police observation of a suspicious bulge provides
reasonable suspicion for a stop. See, e.g., United States
v. Samuels, 131 Fed.Appx. 859, 862–63 (3d Cir.2005)
(finding reasonable suspicion based on an anonymous tip,
a bulge in suspect's waist band, and the suspect's nervous
conduct); United States v. Moroney, 220 F.Supp.2d 52,
59 (D.Mass.2002) (finding probable cause—not merely
reasonable suspicion—based on an anonymous call that
accurately predicted suspect's movements and police
observations of a bulge in the suspect's pants); cf.
Pennsylvania v. Mimms, 434 U.S. 106, 111–12, 98 S.Ct. 330,
54 L.Ed.2d 331 (1977) (finding that officer was justified in
conducting frisk for weapons after commencing lawful traffic
stop, ordering suspect to exit the vehicle, and noticing a “large
bulge” in the suspect's jacket). Further, the Second Circuit
has found reasonable suspicion to justify a stop based on
officers' observation of an apparent firearm alone. See United
States v. Lucas, 68 Fed.Appx. 265, 266–67 (2d Cir.2003)
(summary order) (officers observed suspect “mess around
with his waistband” and saw “what appeared to be a revolver,
handgun or something”).
This case is closely analogous to Manuel, Wiggan, and the
other cases canvassed above. 11 The officers here responded
to an anonymous tip about a person with a firearm, spotted
a person, Gonzalez, who closely matched the description
given by the caller, and observed a suspicious bulge in his
pocket that was consistent with a firearm. They therefore were
justified in undertaking an investigative stop to determine
whether, in fact, Gonzalez was carrying a firearm. The
ensuing stop was brief, and Gonzalez quickly admitted that
he was in fact carrying a gun, as Officer Grosso's search of
his pocket confirmed. The investigative stop was no more
intrusive than necessary to accomplish its valid purpose.
The Court therefore finds that the officers had reasonable
suspicion to stop Gonzalez, and denies Gonzalez's motion to

made during the stop. 12

B. Gonzalez's Motion to Suppress the Narcotics
1. Applicable Legal Standards
“ ‘Strip search’ is often used as an umbrella term that applies
to all inspections of naked individuals.” N.G. v. Connecticut,
382 F.3d 225, 228 n. 4 (2d Cir.2004) (citation omitted).
However, such searches vary in their level of intrusiveness:
“One type of search requires that the subject remove all of his
clothing and permit officers to inspect him while he stands,
naked, in their presence. This is a ‘strip search.’ Another,
more invasive type of search requires the subject to hold his
buttocks open to allow officers to visually inspect his anus.”
Fate v. Charles, 24 F.Supp.3d 337, 344 (S.D.N.Y.2014). This
type of search is known “as a ‘visual body cavity search.’
Finally, the most invasive type of search, which crosses from
a visual to a manual inspection of the subject's body cavity, is
a ‘manual body cavity search.’ ” Id.; see also Kelsey v. Cnty.
of Schoharie, 567 F.3d 54, 62 (2d Cir.2009).
*12 [13] [14] [15] Before police officers conduct any
strip search of an arrestee, “[t]he Fourth Amendment requires
an individualized ‘reasonable suspicion that [the] arrestee is
concealing weapons or other contraband’ ” underneath his
clothing. Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir.2008)
(quoting Weber v. Dell, 804 F.2d 796, 802 (2d Cir.1986)). “
‘To establish reasonable suspicion, [officers] must point to
specific objective facts and rational inferences that they are
entitled to draw from those facts in light of their experience.’
” Id. (quoting Varrone v. Bilotti, 123 F.3d 75, 79 (2d
Cir.1997)) (alteration in original). Reasonable suspicion may
be “based on the crime charged, the particular characteristics
of the arrestee, and/or the circumstances of the arrest.” Id.
“[W]hether a particular strip search is constitutional ‘turns
on an objective assessment of the ... facts and circumstances
confronting [the searching officer] at the time’ of the
search.” McBean v. City of New York, 260 F.R.D. 120, 128
(S.D.N.Y.2009) (quoting Maryland v. Macon, 472 U.S. 463,
470–71, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985)) (alteration
and omission in original) (emphasis omitted). 13
[16] [17] The reasonableness of a search “ ‘is determined
by assessing, on the one hand, the degree to which it
intrudes upon an individual's privacy and, on the other, the
degree to which it is needed for the promotion of legitimate

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governmental interests.’ ” United States v. Massey, 461 F.3d
177, 178 (2d Cir.2006) (quoting Samson v. California, 547
U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006)).
Accordingly, to justify a more invasive search, police officers
must have a stronger factual basis underlying their reasonable
suspicion. See Fate, 24 F.Supp.3d at 350 (“[T]he scope of
a search bears directly on its reasonableness.”) (citing, inter
alia, United States v. Barnes, 506 F.3d 58, 62 (1st Cir.2007);
People v. Hall, 10 N.Y.3d 303, 311, 856 N.Y.S.2d 540, 886
N.E.2d 162 (2008)).

2. Whether the Strip Search Was Reasonable
[18] Officer Marte testified, credibly, that, to conduct the
strip search, he and Officer Rios escorted Gonzalez from
the holding cell into the nearby bathroom. He testified that,
at Officer Rios's direction, Gonzalez took off his shirt and
pants, pulled down his underwear, opened his legs, and
squatted—a search more intrusive than a basic strip search
but less intrusive than a visual cavity search. Tr. 49, 81. The
Court credits this account as truthful, and rejects Gonzalez's
unsworn claim that a more invasive manual body cavity
search was undertaken. See Gonzalez Decl. ¶ 11.
However, centrally important, Officer Marte was not aware
of the circumstances that prompted that search. See Tr. 47–
48, 65. Nor was Officer Grosso, who had left the precinct at
that point, aware of those circumstances. Tr. 43–44. Rather,
only Officer Rios testified to the facts that led him to conduct
the search.
According to Officer Rios, he observed Gonzalez lying on his
stomach on a bench in the holding cell and moving his hands
inside his sweatpants, around his buttocks. Tr. 79. While
Gonzalez was making these movements, Officer Rios heard
the sound of crinkling plastic. Tr. 79–80. The movements
and noises continued for several minutes. See Tr. 79, 159,
174. Officer Rios testified that he then sought, and obtained,
authorization of a precinct supervisor to undertake a strip
search of Gonzalez. Tr. 80.
*13 Officer Rios's account, if credited, would surely support
a finding that the officers had reasonable suspicion to conduct
the search. The sound of crinkling plastic, and the observation
of hand movements by Gonzalez around his buttocks,
together supplied a reasonable basis for a strip search. And
the type of strip search conducted, which involved making
Gonzalez remove his clothing and squatted so as to lead

contraband to fall out from between his buttocks, was no more
invasive than necessary.
Regrettably, however, the Court has found Officer Rios's
testimony unworthy of credence except where corroborated
or circumstantially self-evident. As to this point, the
Government has not adduced any corroboration of Officer
Rios's account. No other officer (or prisoner) testified that
he heard the crinkling sound or saw the hand movements by
Gonzalez to which Officer Rios attested.
As for the circumstantial logic of Officer Rios's account, it is
fair to infer that something led Officer Rios to commission a
strip search. It is improbable, in a case to that point solely of
gun possession, that Officer Rios simply made a lucky guess
that Gonzalez was housing drugs within his buttocks. And
Officer Rios's account certainly might be true. On its terms, it
is not inherently implausible: Gonzalez may well have been
moving his hands around his buttocks and making a crinkling
sound.
But his version of events is only one of the possible
explanations for Officer Rios's decision to search Gonzalez.
Conceivably he intensified his scrutiny of detainee Gonzalez
for some other reason: an irritating or erratic remark or gesture
made by Gonzalez, fidgeting by Gonzalez that less clearly
justified a strip search, or a hunch based on the defaced
serial number on the seized gun. It is also conceivable that
Officer Rios was informed that Gonzalez's rap sheet reflected
prior convictions for narcotics offenses. 14 Without credible
testimony affirmatively establishing the specific facts and
circumstances that motivated the strip search, the Court
cannot find that the search was reasonable. See Hartline, 546
F.3d at 100. 15
Given the Court's unwillingness to credit Officer Rios's standalone testimony on this important point, the Court cannot find
that the Government has carried its burden on a suppression
motion of establishing a lawful search by a preponderance
of the evidence. Echevarria, 692 F.Supp.2d at 332; see
also United States v. Fadul, 16 F.Supp.3d 270, 287–88,
293 (S.D.N.Y.2014) (finding no reasonable suspicion for a
protective sweep and suppressing evidence where officer's
testimony about the search was not credible); United States v.
Williams, No. 11 Cr. 228(RWS), 2011 WL 5843475, at *4–
5 (S.D.N.Y. Nov. 21, 2011) (finding no reasonable suspicion
for a stop and suppressing evidence where officer's testimony
was not credible, including because of his involvement
in ticket fixing and his dishonesty about those incidents);

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United States v. Rivera, 543 F.Supp.2d 335, 336, 338
(S.D.N.Y.2008) (finding no reasonable suspicion for a frisk
and suppressing evidence where officer's testimony “was
riddled with exaggerations and was contradicted”); United
States v. Randolph, 958 F.Supp. 167, 170 (S.D.N.Y.1997)
(finding no reasonable suspicion for a pat down and
suppressing evidence where officers' testimony about the
investigative stop was not credible). The Court therefore
grants Gonzalez's motion to suppress the narcotics.
*14 The Court must also therefore grant Gonzalez's motion
to suppress the statements he made during that search, see
Compl. ¶ 6(v) (alleging that Gonzalez stated “that's not mine”
and “you found the gun but not the drugs” when the narcotics
fell out of his rectum), as fruits of the unjustified strip search,
see, e.g., United States v. Haqq, 213 F.Supp.2d 383, 385 n. 3

(S.D.N.Y.2002) (citing Wong Sun v. United States, 371 U.S.
471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). 16

CONCLUSION
For the foregoing reasons, Gonzalez's motion to suppress is
granted in part and denied in part. The Clerk of Court is
directed to terminate the motions pending at docket 17 and 33.
SO ORDERED.

All Citations
--- F.Supp.3d ----, 2015 WL 2452405

Footnotes

1
2
3

4

5
6

7

On a suppression motion, the Government bears the burden of proof by a preponderance of the evidence. United States
v. Echevarria, 692 F.Supp.2d 322, 332 (S.D.N.Y.2010).
The Court notes that Officer Rios was not placed under oath when he pled guilty before the IAB. See Dkt. 35, Ex. 1. The
Court nevertheless concludes that lying about such important matters in a setting as serious as the IAB—where Officer
Rios was represented by an advocate and spoke on the record—is highly relevant to his credibility.
At other points during the suppression hearing and in his recorded IAB interview, Officer Rios recounted incidents that,
as rendered, appeared improbable or exaggerated. In one, Lieutenant Morales surreptitiously wadded up cash like a ball
and kicked it near Officer Rios, trying to provoke him. Tr. 129–30; DX A, at 37:56–49:24. In another, the captain of the
precinct folded up Officer Rios's timesheets and threw them in the garbage, trying to get Officer Rios in trouble. Tr. 131–
32; DX A, at 17:54–24:34. The Court is, however, mindful that these incidents were touched on only briefly at the hearing.
In finding broader problems as to Officer Rios's credibility, therefore, the Court does not rely on this testimony.
Gonzalez's written declaration attested to a slightly different set of facts, including that at least one officer had his gun
drawn and that the officers forcibly brought him to the back of the patrol car. Gonzalez Decl. ¶ 5. Because the Court
found Officer Grosso's testimony quite credible, and because Gonzalez's claim was not subject to cross-examination, the
Court credits Officer Grosso's account over Gonzalez's. See, e.g., United States v. Calix, No. 13 Cr. 582(RPP), 2014 WL
2084098, at *1 n. 1 (S.D.N.Y. May 13, 2014) (citing, inter alia, United States v. Rodriguez, 368 Fed.Appx. 178, 180 (2d
Cir.2010) (summary order)); United States v. Medina, 19 F.Supp.3d 518, 535 n. 13 (S.D.N.Y.2014) (collecting cases).
The circumstances that gave rise to the strip search, which are disputed, are addressed below. See pp. 23–26, infra.
Gonzalez's written declaration attested that nothing fell out of his buttocks when he squatted; rather, the officers forcibly
lifted him up, leaned him against the sink, spread his buttocks, visually inspected his anus, and manually removed a
plastic bag of crack cocaine from his rectum, a procedure that caused Gonzalez great discomfort. Gonzalez Decl. ¶ 11.
Finding Officer Marte credible on this point, the Court credits Officer Marte's account as to where the narcotics were and
rejects Gonzalez's account, which was not subject to cross-examination. See n. 4, supra. However, because the Court
suppresses the narcotics on the grounds that a valid justification for a strip search has not been established, this factual
disagreement is immaterial.
Officer Grosso could not recall whether Officer Rios drew his weapon, Tr. 37, and the Court concludes that had Officer
Rios drawn a weapon, Officer Grosso would likely have remembered it. The Court therefore does not credit Gonzalez's
statement, which was not subject to cross-examination, that at least one officer approached him with a gun drawn.
Gonzalez Decl. ¶ 5; see also Tr. 72 (testimony of Officer Rios, denying that he drew his gun). Even if Officer Rios had
drawn his weapon, that show of force would not have transformed the Terry stop into an arrest. See United States
v. Garcia, 339 F.3d 116, 119 (2d Cir.2003) (citing Perea, 986 F.2d at 644) (rejecting “the argument that a Terry stop
necessarily becomes an arrest” if officers approach a suspect “with guns drawn”). In approaching a suspect who is
believed to be armed, it is reasonable for a police officer to draw his weapon to ensure his own safety and the safety of

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8

9

10

11

12
13

14
15

16

others in the vicinity. United States v. Newton, 369 F.3d 659, 674 (2d Cir.2004) (“ ‘[A] law enforcement officer conducting
a Terry stop, when ‘faced with the possibility of danger, has a right to take reasonable steps to protect himself and an
obligation to ensure the safety of innocent bystanders regardless of whether probable cause to arrest exists.’ ' ”) (quoting
United States v. Alexander, 907 F.2d 269, 272 (2d Cir.1990)).
At that point, the officers plainly had probable cause to arrest Gonzalez. See United States v. Bennett, 13–2993, –––
Fed.Appx ––––, ––––, 2015 WL 897753, at *1 (2d Cir. Mar. 4, 2015) (“[D]iscovery of firearm during lawful Terry stop
can constitute probable cause to arrest for illegal possession of weapon.” (citing United States v. Hensley, 469 U.S. 221,
235–36, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985))).
Because Gonzalez was not in custody when he stated that “it's in my right pocket”—i.e., that he had a gun in his right
pocket—rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), had not attached, and the
officers were not required to obtain a waiver of rights before questioning him. See Oregon v. Mathiason, 429 U.S. 492,
494–95, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Newton, 369 F.3d at 669. The Court therefore denies Gonzalez's motion
to suppress that statement on the grounds that Gonzalez had not been Mirandized. See Def. Br. 23–24.
This case is also far afield from those in which courts have found that the mere fact of “a generic bulge in a pocket”
without more, does not supply reasonable suspicion for a stop, on the grounds that a bulge alone “can be explained by
too many innocent causes to constitute ‘reasonable’ suspicion” of criminal activity. See, e.g., Singleton v. United States,
998 A.2d 295, 302 (D.C.2010); see also Price, 2014 WL 558674, at *7 (finding no justification for a Terry stop where the
testimony of both officers who claimed to have seen a bulge was “implausible”); Floyd v. City of New York, 959 F.Supp.2d
540, 614–15 (S.D.N.Y.2013), appeal dismissed (Sept. 25, 2013) (holding that an officer's observation of a bulge that
could be “a commonly carried object such as a wallet or cell phone does not justify a stop or frisk”). Here, the officers
were acting on the basis of a tip that a man closely matching Gonzalez's description was carrying a gun. It is therefore
entirely credible that they were scrutinizing Gonzalez's person for a bulge consistent with a gun, and the presence of
such a bulge tended to corroborate the tip.
At argument, defense counsel correctly noted that investigative stops in some of these cases occurred at night in highcrime areas. See. e.g., Manuel, 64 Fed.Appx. at 824. But those facts cut both ways: On the one hand, they may provide
some corroboration for an anonymous tip. On the other hand, Officers Rios and Grosso likely had a clearer view of the
suspicious bulge and a more pressing need to secure the area than officers patrolling a dark street with few pedestrians.
On the record before the Court, Gonzalez did not make any post-arrest statements regarding the gun. Accordingly, even
accepting arguendo his claim that he was not advised of his Miranda rights, that omission is immaterial because there
are no statements to suppress.
Although most of the relevant precedential cases involved misdemeanor arrestees, the same legal standards apply to strip
searches of felony arrestees such as Gonzalez. See Gonzalez v. City of Schenectady, 728 F.3d 149, 166 (2d Cir.2013)
(Pooler, J., dissenting) (citing Hartline, 546 F.3d at 100–01); Sarnicola v. County of Westchester, 229 F.Supp.2d 259,
270 (S.D.N.Y.2002); see also Tennessee v. Garner, 471 U.S. 1, 15, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (describing the
distinction between suspected misdemeanants and suspected felons as “untenable”).
The records produced by the Government indicate that both the NYPD Intelligence Division and the Firearms Suppression
Division ran Gonzalez's rap sheet on the night of his arrest. Dkt. 33, Ex. 5–6. Although Officer Rios did not himself run
the rap sheet, it is conceivable that he learned of Gonzalez's criminal history from an officer in one of those divisions.
Although not necessary to this decision, aspects of Officer Rios's testimony explaining the basis for the strip search
suggested a degree of imprecision or perhaps hyperbole. According to Officer Rios, Gonzalez—a “heavyset” man, Tr.
15—was lying face-down on a narrow (approximately 15–inch wide) bench attached to the holding cell wall, see GX 5,
and was making significant movements with his “whole body,” Tr. 153, including “jerking himself up” and moving “back
and forth,” Tr. 175, while paying no attention to the one or two other inmates in the small holding cell or to Officer Rios,
who by his own account was studying Gonzalez from an arm-length away for several minutes, see Tr. 159, 174. Even
though Gonzalez was under the influence of alcohol that evening, see Tr. 54, 66 (Marte), it is not clear to the Court
that he would have been quite so oblivious to the presence of others while fiddling with the crack cocaine between his
buttocks as Officer Rios recounted.
The evidence adduced at the suppression hearing indicated that Gonzalez made the statements “that's not mine” and
“you found the gun but not the drugs” spontaneously, not in response to an officer's question. See Compl. ¶ 6(v); Gonzalez
Decl. ¶ 5. Admitting those statements would not violate Gonzalez's Fifth Amendment rights under Miranda, which applies
only to custodial interrogations. 384 U.S. at 444, 86 S.Ct. 1602. Instead, the Court suppresses these statements because
they were not obtained “by means sufficiently distinguishable to be purged of the primary taint,” Wong Sun, 371 U.S. at
488, 83 S.Ct. 407 (citation omitted), to wit, the strip search.

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 U.S. v. Gonzalez, --- F.Supp.3d ---- (2015)

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© 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

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