The opinion of the court was delivered by: Maurice B. Cohill, Jr. Senior District Court Judge
Pending before the Court is Defendants'*fn1 Motion to Suppress [ECF #130], wherein they request the suppression of all evidence obtained arising from, and subsequent to, a traffic stop on March 3, 2010. Defendants further request the suppression of a police officer's identification of Defendant Antoine as one of the occupants of the vehicle in the aforementioned traffic stop. The Government filed an Omnibus Response in which it opposes the suppression motion. (ECF #150). A hearing on the Motion to Suppress was held on August 21, 2012. Defendant Seraphin was not present at the hearing; his counsel stated on the record that his client was expressly waiving his right to be present at the hearing. Sergeant Stephen Fury and Officer Douglas Burek testified credibly at the hearing. For the following reasons, we will deny the motion to suppress in its entirety.
On the evening of March 3, 2010, a 911 call was placed by an employee of the Walmart store located in Scott Township. The caller told the 911 operator that two (2) black males had been in the Walmart store attempting to purchase gift cards with credit cards that had been rejected and that the name on the identification provided did not match the name on the credit card provided. The caller further stated that one of the men was wearing a plaid coat and the other one was wearing a coat and hat, that the men had just left the store and entered a white Dodge Caravan minivan with a specific Florida license plate number, and that the minivan was leaving the parking lot.
Sergeant Stephen Fury, a patrol officer with the Scott Township police department, responded to the call within a minute or two. He arrived at the Walmart parking lot at 10:06 P.M., saw the minivan about to leave the parking lot and stopped the van. His purpose for stopping the van was to obtain the identification of the individuals in the van and to find out if the credit cards were fraudulent. They had not violated any traffic laws. At the time of the stop, Sergeant Fury had not been told of the type of items the individuals were attempting to purchase at the Walmart or their value.
The location where the van was stopped was lighted by street lights, and there was a traffic signal. Additionally, a McDonald's restaurant, which was located next to where the van was stopped, was lit, and Sergeant Fury's vehicle had its "patrol lighting" and "take down light" on as well.
As Sergeant Fury approached the minivan, for his safety, he illuminated the interior of the minivan with a handheld flash flight. Inside the minivan he saw four men and a black box/safe in the back of the van, between the two rear passengers. Sergeant Fury testified that there was adequate lighting to observe both the interior of the minivan and its occupants.
Within minutes of his arrival on the scene, Sergeant Fury received backup by fellow Scott Township police officers Douglas Burek, Ballo, and Samangy.
Sergeant Fury asked the driver, Ramar J. Gardiner, for his driver's license, insurance, and the vehicle registration. Mr. Gardiner gave Sergeant Fury a New York license and informed Sergeant Fury that the van was a rental. He produced the rental agreement which showed that the minivan had been rented from Enterprise car rental in Jamaica, NY to a Maribel Cintron ("Ms. Cintron"). Id. Ms. Cintron was the only authorized driver of the rental vehicle and she was not present in the van at the time it was stopped. Additionally, pursuant to the terms of the rental agreement, the van could only be driven in New York, Connecticut and New Jersey.
Once it was determined that none of the drivers were authorized to drive the minivan, Sergeant Fury asked the four occupants to step out of the minivan. Each of the men was then asked for identification. In addition to Mr. Gardiner, who had already provided his identification to Sergeant Fury, the men identified themselves as: (1) Richard G. Foster of Pensacola, FL, (2) Jean Seraphin of Brooklyn, NY, and (3) Brent Kevin Hercules-Antoine of 100 E. 31st Ave. Apt. 518, Brooklyn, NY, with a date of birth of January 10, 1977.
As the men exited the minivan, Sergeant Fury asked them if the box/safe was theirs. No one responded to his question.
Officer Burek questioned the gentleman who identified himself as Brent Kevin Hercules-Antoine. This individual did not present any form of identification. Rather, he orally provided the identifying information to Officer Burek. In the police report authored by Sergeant Fury, and based upon information provided to Sergeant Fury by Officer Burek, this individual was described as being an African-American male with black hair and brown eyes; the police report does not indicate his height.
During the stop, NCIC warrants checks were performed on all of the occupants of the minivan. None of the occupants had any outstanding warrants.
Officer Burek was the police officer who took the information from the man who identified himself as Hercules-Antoine. Officer Burek recalled Mr. Hercules-Antoine to be a slender black male with shorter hair and a height similar to his own or maybe a little taller, who was wearing dark clothing and a coat. He recalled that Mr. Hercules-Antoine may have had a light goatee. Officer Burek has no recollection as to whether or not Mr. Hercules-Antoine had on glasses or had a distinct accent.
Officer Burek's conversation with Mr. Hercules-Antoine was brief, approximately three (3) to five (5) minutes. All Officer Burek did was to get Mr. Hercules-Antoine's information. Officer Burek stood a few feet away from Mr. Hercules-Antoine as they spoke and could readily see Mr. Hercules-Antoine's face. Officer Burek had his flashlight on, but did not shine it on Mr. Hercules-Antoine's face.
As none of the occupants of the minivan were authorized to drive the car, pursuant to Scott Township police department policy, the minivan was impounded, its contents were inventoried on site by Officer Samangy, and the minivan was towed to L. Thomas Auto, the township's towing operator. The occupants were told that the minivan would have to be impounded since they were not authorized to drive it.
The four men left the scene of the stop on foot and walked to the nearby McDonald's. One of the men took a duffel bag out of the trunk of the minivan prior to departing for the restaurant. Total time of the stop was approximately fifteen (15) minutes; Officer Samangy's inventory report indicates that he performed the on-site inventory at 10:16 p.m.
No handcuffs or other physical restraint were used during the stop. There was no spread-eagle positioning or pat down done during the stop. The gentlemen were not free to leave during the course of the stop until told by the officers that they could go. Miranda rights were not given at any time during the stop.
When Officer Samangy inventoried the contents of the minivan, it was determined that the box/safe was locked. Pursuant to the Scott Twp. police department's inventory policy, the officers could not open the locked box/safe; instead, they had to obtain a search warrant, which was granted at 4 P.M. on March 4, 2010.
Additionally, at some point on March 4, 2010, a person identifying himself as Ramar Gardiner called the Scott Township police station seeking return of his black box; the caller was informed by Officer Ballo that he could come to the police station to retrieve it, but he did not do so.
Thereafter, the United States Secret Service ("USSS") took over investigating what had transpired on March 3, 2010 at the Scott Township Walmart store. On or about March 24, 2010, Special Agent Michael Radens of the USSS came to the Scott Township police department. Officer Burek recalls Agent Radens showing him a number of photographs and asking him if he could identify anyone in the photographs. Officer Burek looked at one of the photographs for a few minutes, took it into another room where there was better light, and then told Special Agent Radens that it could be the man he questioned during the stop on March 3, 2012, but that it was not what the man looked like the night of the stop, that it could have been what the male looked like at a different time in his life. Officer Burek did not recall seeing a name on the photograph as he was looking at it.
Ultimately, the individual in the picture shown to Officer Burek on or about March 24, 2010 was not Defendant Brent Kevin Hercules Antoine, but another man named Brentt K. Antoine, also from Brooklyn, ...