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United States of America v. Terrell Brunson

March 31, 2011

UNITED STATES OF AMERICA
v.
TERRELL BRUNSON, DEFENDANT.



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

OPINION

This matter is before the Court upon motion by Defendant, Terrell Brunson, to suppress evidence that was obtained following the stop of the motor vehicle he was driving. He alleges that the police officer lacked reasonable cause to stop his motor vehicle on August 27, 2009, and that evidence seized as a result of that stop, namely a firearm and the defendant's inculpatory statement regarding his possession of that firearm, were obtained in violation of the Constitution and should therefore be suppressed. Defendant Terrell Brunson is charged in a one-count Indictment with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

The Court conducted an evidentiary hearing upon the suppression motion on March 18, 2011. At the hearing, the United States presented the testimony of the arresting officer, Michael Giordano, of the Newark Police Department. Defendant presented the testimony of the witness who was his passenger at the time in question, Mr. Kinte Warnock. Additionally, the United States introduced exhibits G-1, 2, 4, and 5 consisting respectively of a schematic map of the streets in question, two photographs, and the traffic ticket issued by Officer Giordano to Mr. Brunson for careless driving in the August 27, 2009 incident.

The principal issue to be determined is whether Officer Giordano had a reasonable basis for effecting this traffic stop for careless driving, a violation of New Jersey's Motor Vehicle Code at N.J.S.A. 39:4-97. If the stop was reasonable under governing law, there is no additional issue raised by the Defendant as to the lawfulness of the seizure of the firearm or the obtaining of Mr. Brunson's statement at the time of the stop.

I. FACTUAL FINDINGS

On the evening of August 27, 2009, Officer Michael Giordano and his partner, Officer Philip Turzani of the Newark Police Department, were on patrol as members of the Central Narcotic Division. While on duty, they were dressed in civilian attire driving an unmarked Chevrolet Suburban, patrolling the western area of Newark.

The time of the incident was approximately 10:40 P.M. Meanwhile, Terrell Brunson had closed his store, located about eight minutes away in Irvington, New Jersey, at about 9:00 P.M., and he was driving two of his employees home, namely, Marsha Padmore and Kinte Warnock. Brunson was driving a Ford Expedition, which is a large SUV, about the size of the Chevy Suburban driven by Officer Giordano. According to Brunson's passenger, Kinte Warnock, who was seated in the front passenger seat, they were dropping off Ms. Padmore who lived in the vicinity of 18th Street and South Orange Avenue in Newark.

Thirteenth Avenue in Newark runs roughly east-west and it intersects with several streets including South 20th Street, South 19th Street, and South 18th Street, each of which run generally north and south. Thirteenth Avenue is a two-way street with stop signs at the corner of 20th Street and 19th Street. (See Exhibits G-2 and G-4). Twentieth Street is a two-way street, while 19th Street is one-way running north. (See Exhibit G-1).

Officer Giordano testified, credibly in this Court's view, that he and Detective Turzani were on patrol in their Suburban driving slowly northbound on 19th Street, about five miles per hour, looking for indications of suspicious drug activity. He turned left onto westbound 13th Avenue. Just as he entered 13th Avenue, he noticed defendant's Ford Expedition, which had been northbound on 20th Street, make an erratic right turn onto eastbound 13th Avenue. The Ford Expedition turned the corner so quickly that it was leaning as it rounded the curve and veered widely into the westbound lane of 13th Avenue, coming at Giordano's vehicle which was facing westbound. Officer Giordano testified that defendant's vehicle became an oncoming eastbound vehicle in the wrong lane for about two seconds as Giordano proceeded westward. Giordano stopped as soon as he saw the oncoming Ford Expedition. Giordano immediately reached for his flashlight and signaled the Ford Expedition to stop.

Giordano testified that the Expedition came to a stop next to Giordano's Suburban, driver-door to driver-door, with about one car width between the vehicles. The point where the vehicles stopped was on 13th Avenue closer to South 19th Street. In other words, defendant's vehicle had traveled most of the block of 13th Avenue from 20th Street to 19th Street before it stopped. Officer Giordano estimated that the Ford Expedition was traveling roughly 20-30 miles per hour as it rounded the corner from 20th Street onto 13th Avenue.

The officers identified themselves as Newark police officers and got out of the car. Mr. Brunson appeared to be cooperative and the police identified the passengers as stated above. During the course of the stop, the defendant volunteered that he had a gun and wanted no trouble, and the gun was removed from his person.

Mr. Brunson was arrested and placed in the police vehicle, and the two passengers were allowed to leave. Officer Giordano shortly thereafter wrote a traffic ticket charging Mr. Brunson with careless driving in violation of N.J.S.A. 39:4-97. Officer Giordano testified that he believed that the manner in which Brunson took a wide, fast right turn onto 13th Avenue, drifting during the course of the turn entirely into the wrong lane, on-coming to Giordano's own vehicle, was careless and that is the reason he stopped Brunson's vehicle. There is no evidence that Giordano knew Brunson or his vehicle or had ever encountered them before.

Passenger Kinte Warnock testified to a very different version of events. He was an employee of Mr. Brunson's clothing store. They have been friends for about 20 years. Mr. Warnock has had his own brushes with the law, having previously been convicted of a drug felony charge in the early 1990s for which he received probation, possession of a handgun in 1996 for which he also received probation, and he is now currently on probation for piracy of CD's and DVD's under supervision of the Superior Court of New Jersey.

Mr. Warnock testified that the Brunson vehicle, with its three occupants listening to music, was headed north on 20th Street. He said that Brunson came to a full stop at 20th Street and turned in a normal fashion onto eastbound 13th Avenue. According to Warnock, Brunson was not driving in a careless fashion. Instead, he stayed to the right on 13th Avenue and never crossed to the other side, and he remained within the speed limit when he saw Giordano's Suburban turning left from northbound 19th Street onto westbound 13th Avenue. The unmarked police Suburban itself was in the wrong lane, coming head-to-head toward the Brunson vehicle, according to Warnock. Brunson stopped when the Suburban approached him. The occupants of the Giordano vehicle shined flashlights at the Brunson vehicle. Mr. Warnock ...


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