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United States v. Fogle

May 10, 2007


The opinion of the court was delivered by: Cooper, District Judge


A grand jury returned a one-count indictment charging that on or about November 5, 2005, defendant Aaron Fogle, having previously been convicted of a felony, knowingly possessed a loaded 45 caliber handgun, in violation of 18 U.S.C. §§ 922(g)(1) and 2. Defendant has filed an omnibus motion seeking, inter alia, to (1) suppress and preclude from introduction at trial any evidence obtained as a result of the stop of the car he was driving on November 5, 2005; (2) suppress his statement to law enforcement officers after their recovery of the firearm; and (3) dismiss the indictment. The Court conducted a two-day evidentiary hearing, and has considered the arguments of the parties in their briefs and oral argument. For the reasons stated herein, the motion is denied.*fn1


The Court finds the following facts, based upon the testimony of witnesses and exhibits received in evidence.

The City of Trenton Police Department maintains a communications department staffed with personnel who receive communications from the public and from department officers, and who dispatch officers to respond in the field ("radio room"). Radio room personnel make typed entries into computerized log forms as they perform their duties ("CAD records"). (5-3-07 test.)

CAD records for Saturday, November 5, 2005, indicate that the radio room received a 911 call at 1:49:44 a.m. from an anonymous caller on a specified cell phone number, reporting that a "male inside Green Ford Expedition pulled a gun," and the location was Dee Dee's Lounge. (Exh. D-2 at 4.) Timothy Dickson, Jr., the Call Taker who received the call, typed that information into the CAD records, also typing computer data giving the exact street address of Dee Dee's Lounge as 549 Brunswick Avenue between Chase Street and East Paul Avenue. The Call Taker recorded that he electronically transmitted that information to the dispatchers at 1:50:43.*fn2 (Id.; 5-3-07 test.)

Dispatcher Michael Kramarz, who testified at the hearing, was listed in the CAD records as the dispatcher for that incident.*fn3 When he received the transmission from the Call Taker, he looked on his board to see what police units were shown as available in the area, and radioed several of them with instructions that they were "dispatched" to the incident. (5-3-07 test.) His entries into CAD records show that his first dispatch call, at 1:51:36, was to Unit B4E (officers Capasso and Charles), operating as a two-man motorized unit. He also dispatched as backup units, at 1:52:06, Unit B67 (officers Doherty and Jefferson), and Unit B30, Sergeant Gonzales. (Exh. D-2 at 9.) He stated that all 911 calls and radio room transmissions are routinely tape recorded, but they are normally retained for only 90 days. (5-3-07 test.)*fn4

Officer David Godbold ("Godbold"), who also testified at the hearing, is a police officer with the City of Trenton in the rank of patrolman, with 24 years of experience in the Trenton Police Department and commensurate training. In the early morning hours of Saturday, November 5, 2005, he was on duty in the Trenton North District Patrol Unit as a one-man motorized patrol unit, Unit B53N. His shift began at 10:00 p.m. on Friday, November 4, 2005. He was wearing full police uniform and driving a marked police car. His duties when on patrol were generally to patrol in high crime areas, responding to troubled neighborhoods and general neighborhood safety matters, and take and write reports. (Tr. 15 at 3-6, 66.)

Godbold was on duty on Nassau Street in the vicinity of Dee Dee's Lounge, having just issued a parking violation summons, when he heard the radio room broadcast its dispatch of a two-man police unit to Dee Dee's Lounge on a report of a man with a gun. (Id. at 7-8; 5-3-07 test.; exh. G-21A.) Godbold recalled that the dispatch broadcast was that a man had pointed a gun at the caller and was now inside a green Ford Expedition that was parked opposite Dee Dee's Lounge. (Id. at 7-8, 50-53.) Godbold responded because, although he was a one-man unit, he was close by the scene and it was a gun call. (Id. at 7-8; 5-3-07 test.) He said that several police units commonly respond to a gun call, for added protection of the officers. (5-3-07 test.) Godbold knew from police radio transmissions that the two-man unit was also responding, and he went as back-up. He radioed the dispatcher and said that he was proceeding there as back-up. (Tr. 15 at 7-8; 5-3-07 test.)*fn5

The police radio dispatch specified that the scene was Dee Dee's Lounge at 549 Brunswick Avenue. Godbold was familiar with that location. Dee Dee's Lounge is a neighborhood bar. "We had some problems there, so we had to respond for various disturbances in the past." (Tr. 15 at 8-9.) The area surrounding that bar "could be" a "rough neighborhood." (Id. at 80.)

Godbold was the first police car to arrive at the specified location. Dee Dee's Lounge occupies the corner of Brunswick Avenue and Chase Street, with a front entrance on Brunswick and a side entrance on Chase. As Godbold drew his car up to the front entrance, he observed a green Ford Expedition ("Ford") parked on Chase Street opposite the side entrance. Godbold could see a driver and a passenger in the front seat, but he could not see their physical characteristics. He testified: "At that time an older black gentleman came out of the bar and pointed in the direction of the green Ford Expedition, at which time the vehicle stated to pull away from the bar." (Id. at 9-10.) When Godbold's car came behind the parked and stationary Ford, the Ford started to pull away at the same time that the man came out and pointed out the Ford to Godbold. The man said something Godbold could not hear, but the man "pointed indicating that that's the vehicle." (Id. at 10.) Godbold believed the man "meant that that's the vehicle that we were there for." (Id.)

Godbold then started to follow the Ford as it proceeded north on Chase Street (a one-way street approximately two blocks long) for a minute or two, then right onto East Paul. At that time Godbold activated his flashing overhead police lights but not his siren, to conduct a stop of the Ford. He did that because he heard the sirens of approaching police units. The Ford responded by immediately turning left onto Nassau Street and stopping at the corner of East Paul and Nassau. (Id. at 11-16; exh. G-11, G-12.)

There are CAD entries as follows: 1:53:04 VEH ON CHASE APPROACHING E PAUL TOWARDS BRUNSWICK 1:53:20 PULLING OVER ON NASSAU ST. (Exh. D-2 at 5.) Those entries, typed by an unattributed dispatcher in the radio room, do not indicate which police unit radioed in that information. Godbold testified that those were his radio broadcasts, which he sent as he was following the Ford up Chase Street, onto East Paul, and to the point of the police stop on Nassau Street. (5-3-07 test.) We find that those broadcasts were issued by officer Godbold.

Godbold pulled his vehicle up behind the Ford, which was stopped on Nassau Street. The driver exited the Ford and started to approach Godbold, who was still in his police car. (Tr. 15 at 16.) The area of the stop was well-lit by street lights that night. (Id. at 23-24.) At the point when the driver exited the vehicle, Godbold could see the driver. Godbold identified the driver at the hearing as defendant, Aaron Fogle. (Id. at 24.) Using his PA system while still seated in his police car, Godbold asked Fogle to have a seat back into his vehicle; that is, he ordered Fogle back into the Ford. (Id. at 16-17; 24-25.) The driver complied with that order. (Id. at 73-74.) Godbold did that because the Ford had two occupants, and Godbold wanted to keep them together until the other police units arrived. Also, Godbold wanted to put his search light on the Ford, so he did activate that light along with his still-flashing overhead lights. (Id. at 25.) Godbold did not approach the Ford alone, and by then the other police units had arrived. (Id. at 25-26.)

Three responding police units joined Godbold at that location. Sergeant Gonzales came in one police vehicle; Detective Davis came in his K-9 vehicle; and officers Capasso and Charles were a two-man unit in a police wagon. The two-man unit of Capasso and Charles was the unit that was originally dispatched to respond. (Id. at 26-27.)*fn6

Once all of the officers were there, Godbold approached the Ford at its passenger side front door. He opened the car door and told the passenger to show his hands and got him out of the Ford, then placed the passenger against the car in a frisk position and frisked him. Godbold did that because there was a report of a gun in a vehicle. The frisk was to check a suspicious person or a suspect for any type of weapon. (Id. at 31-32.) He found no weapon on the passenger. Godbold described him as a white male, but recalled no other physical characteristics. Godbold then directed the passenger to go towards the rear of the Ford, where officers Charles and Capasso received the passenger. (Id. at 32.)

After the passenger was passed off to officers Charles and Capasso, Godbold looked inside the Ford on the passenger side, where he was standing, and he saw a black shoulder holster on the front passenger side floor. (Id. at 32.) "[I]t was sticking out from under the seat. You could see it in plain view.... [T]he door was open, so the interior lights was on, and I could see the holster sticking out from under the seat." (Id. at 36.) Godbold picked up the holster, and saw nothing inside the holster. He advised Sergeant Gonzales and Detective Davis that he had found a holster. (Id. at 36-37.) Then he began looking under the seat for a weapon. Detective Davis, who was on the driver's side of the Ford, also began looking under the seat for a weapon, and he announced that he had found a weapon. (Id. at 37, 77.) At that point the driver, Fogle, was still in the frisk position against the Ford towards the rear of the Ford, having been ordered out of the car and frisked by another officer. (Id. at 37-38, 74-75.) Neither Fogle nor the passenger was in handcuffs when the weapon was found. (Id. at 38.) Detective Davis handed the weapon to Godbold at the driver's side door, after the weapon was "cleared." (Id.)

According to Godbold's testimony, the following next occurred:

Q: Did the driver -- did the defendant say anything at all at this time?

A: Yes, he was looking at the whole incident. He watched Davis bring the gun out and clear it, and at that point he made the statement to me that it's his, that he was in the armed forces or armed service, he was in the military, and he -- the gun was his, but he didn't have a permit.

Q: But he didn't have a permit?

A: That's the way he told me.

Q: What was his tone when he made those comments to you?

A: Matter of factly.

Q: ... [W]ere they in response to any ...

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