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United States v. Clark

December 1, 2006


The opinion of the court was delivered by: William J. Martini Judge



Dear Counsel:

This matter comes before the Court on Defendant Al-Yamin Clark's motion to suppress. The Court heard testimony in this matter on October 27, 2006 from Officer Frank Sebasco; Officer Kevin McDonough; Hasonna Bell; and Desiree Clark, and on November 6, 2006 from the Defendant, Al-Yamin Clark. Oral argument was also heard on November 6, at which time the matter was taken under advisement. Now, for the reasons set forth below, the Defendant's motion is denied.



The Defendant first moves to suppress the evidence recovered from his vehicle. Although the witnesses' accounts of the search differed in some respects, the essential facts are not in dispute.

Officers McDonough and Sebasco are experienced narcotics detectives with the Elizabeth Police Department in New Jersey. The officers were in the area of 7th and Fulton Streets in Elizabeth on the evening of December 22, 2004, to serve as a backup perimeter unit covering an undercover drug purchase by a DEA agent.

The testimony differs as to exactly where the defendant stopped his vehicle and what the precise lighting conditions were in the area. Significantly, however, the Defendant's account of what happened that evening closely matches the officers' accounts of what they observed.

The officers testified that from where they were parked, they observed a black Chevrolet Tahoe with tinted windows pull up and park along the curb on 7th Street around 5:15 pm. Although it was dark outside, they were able to see an individual inside the Tahoe dialing a cell phone, because the cell phone keypad illuminated the interior of the vehicle. Several minutes after the officers first noticed the Tahoe, a black Ford Explorer with tinted windows pulled up behind the Tahoe. The driver of the Tahoe then exited the vehicle, and was immediately recognized by Officer McDonough as the Defendant. The Defendant was known to Officer McDonough as a mid-level drug trafficker in Elizabeth.

The Defendant walked to the passenger side of the Explorer and got in. Aside from the Defendant, there appeared to be just one person in the Explorer, the male driver. After a couple of minutes, the Defendant exited the passenger's side of the Explorer carrying a bag that the officers had not seen when the Defendant entered the Explorer. The bag was a semi-transparent tan grocery bag, and was wrapped tightly around its contents, which were of a rectangular shape. The officers testified that they could observe reddish or brown coloring through the bag where it was pulled tightly around the bag's squared-off corners.

Although this series of events took place after dark, the officers were able to make these observations of the defendant's activity because the area was well-lit by streetlights and because the Defendant walked in front of the Explorer's lit headlights with the bag. The Defendant reentered the Tahoe through the driver's side door, and both the Tahoe and the Explorer drove off.

Based on their extensive experience with drug transactions, the officers believed they had witnessed a drug transaction between the defendant and the occupant of the Explorer. The officers testified that the activity they observed was consistent with how drug transactions are often conducted on the street, and that the package carried by the defendant was consistent in size, shape and color with the way that heroin is packaged and distributed.

The officers radioed to the DEA that they were abandoning their surveillance of the undercover buy. They called for backup and started to follow the Tahoe, which they believed was more likely than the Explorer to yield evidence of the drug transaction after observing Mr. Clark carry what appeared to be bricks of heroin into the Tahoe. The officers followed the Tahoe to a lot at 600 Fulton Street, where it parked. The officers then exited their car and approached the Tahoe on foot. Officer McDonough approached the driver's side and Detective Sebasco approached the passenger's side. Officer McDonough testified that upon observing the officers, the defendant appeared to be confused or in a state of panic. The defendant was making "furtive movements" and patting himself down. Officer McDonough testified that it was not until after seeing the Defendant in this panicked state that he determined to remove the Defendant from the vehicle before talking with him further. ...

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