S.D.N.Y.: Issue preclusion: Same search litigated in NJ state courts in 2014 and def lost; can’t relitigate here. Besides, he’d lose on merits, too

Defendant was charged in New Jersey as a result of the same search as here. He fully litigated in state court and lost, and appealed and lost. That qualifies for issue preclusion in federal court in NYC because he had reason to litigate fully and did. On the merits, he loses anyway. United States v. Shaw, 2017 U.S. Dist. LEXIS 58433 (S.D. N.Y. April 13, 2017):

Accordingly, at least one New Jersey court has precluded a criminal defendant from relitigating an unsuccessful suppression motion on collateral estoppel grounds. State v. Davis, No. A-4303-07T4, 2010 N.J. Super. Unpub. LEXIS 1548, 2010 WL 4056849, at *6 (N.J. Super. Ct. App. Div. July 13, 2010) (applying doctrine of collateral estoppel where the court was “satisfied that defendant was afforded a full and fair opportunity to litigate” the Miranda issue). Applying federal law, the Second Circuit has also instructed that “a prior decision by another court on a motion to suppress is not ordinarily reconsidered in the absence of substantial new evidence or extraordinary circumstances.” Laaman v. United States, 973 F.2d 107, 113 (2d Cir. 1992); accord United States v. McManaman, 673 F.3d 841, 847 (8th Cir. 2012) (collaterally estopping defendant from relitigating Fourth Amendment issue where defendant offered “no new evidence or argument that would cast doubt on” the previous court’s ruling); United States v. Rosenberger, 872 F.2d 240, 242 (8th Cir. 1989) (collaterally estopping defendant from relitigating suppression motion where defendant “was a party to the prior action, and, based upon the district court’s thorough consideration of his claims, had a full and fair opportunity to litigate the issue of the validity of the search and the search warrant”). Earlier this month, Judge Rakoff likewise concluded that a criminal defendant was collaterally estopped from relitigating a Fourth Amendment issue that had previously been “vigorously litigated over a three-day hearing” before a different district judge. United States v. Walker, No. 16-cr-567 (JSR), 2017 U.S. Dist. LEXIS 30843, 2017 WL 877325, at *2 (S.D.N.Y. Mar. 5, 2017); see also United States v. Cutolo, 861 F. Supp. 1142, 1150 (E.D.N.Y. 1994) (denying motion to suppress that defendant had already extensively litigated in a different federal criminal prosecution); United States v. Yung, 786 F. Supp. 1561, 1565 (D. Kan. 1992) (noting that “several federal courts have held that the doctrine of collateral estoppel can be used to prevent a criminal defendant from relitigating the lawfulness of searches and seizures”); United States v. Levasseur, 699 F. Supp. 965, 980 (D. Mass.) (“[C]ollateral estoppel can be applied to criminal defendants to prevent them from relitigating a previously unsuccessful attempt to suppress evidence ….”), rev’d on other grounds, 846 F.2d 786 (1st Cir. 1988); People v. Page, 155 Ill. 2d 232, 614 N.E.2d 1160, 1167, 185 Ill. Dec. 475 (Ill. 1993) (noting that “application of collateral estoppel in the suppression context advances many of the same policy goals that underlie the doctrine generally, such as the conservation of judicial resources and the avoidance of repetitive litigation”); but see United States v. Harnage, 976 F.2d 633, 635 (11th Cir. 1992) (“We are not convinced that allowing the government to bar a defendant from relitigating an unfavorable determination of facts in a prior proceeding would serve the original goal of collateral estoppel — judicial economy.”).

Here, there is no dispute that the 2014 suppression hearing in New Jersey raised precisely the same issues regarding the constitutionality of the October 2012 Stop and Search. After having carefully reviewed the transcript of the five-day suppression hearing (see Doc. No. 22), it is also clear to the Court that Defendant had a full and fair opportunity to litigate the constitutionality of the October 2012 Stop and Search in that forum. See Allen v. V & A Bros., 208 N.J. 114, 26 A.3d 430, 445 (N.J. 2011) (instructing courts applying New Jersey law to consider whether party previously had “an adequate opportunity to obtain a full and fair adjudication in the prior action”). Indeed, defense counsel vigorously cross examined the police officer witnesses and zealously challenged the state’s evidence. Furthermore, notwithstanding Defendant’s eventual guilty plea in that proceeding, New Jersey permits defendants to appeal an order denying suppression of physical evidence following a guilty plea. See State v. Wise, No. A-2892-11T3, 2014 N.J. Super. Unpub. LEXIS 473, 2014 WL 901996, at *2 (N.J. Super. Ct. App. Div. Mar. 10, 2014); Allen, 26 A.3d at 445 (whether party could have “obtained review of the prior judgment” highly relevant in issue preclusion analysis); cf. Jenkins v. City of New York, 478 F.3d 76, 92 (2d Cir. 2007) (noting that under New York law “facts determined in a pretrial suppression hearing cannot be given preclusive effect against a defendant subsequently acquitted of the charges,” since that defendant “lack[s] an opportunity to obtain review of an issue decided against him”). Since Defendant had the opportunity to obtain review of the New Jersey Superior Court’s March 2014 decision, and failed to seek such review, he is precluded from relitigating the constitutionality of the October 2012 Stop and Search in this forum.

In his response brief, Defendant relies heavily on the New York case of People v. Pleavy, (Doc. No. 23 at 1 (citing 52 N.Y.2d 58, 64, 417 N.E.2d 518, 436 N.Y.S.2d 224 (1980)), in which the New York Court of Appeals recognized that collateral estoppel is “frequently” applied in the criminal context, but cautioned that the doctrine “cannot be applied in quite the same way as in civil cases” because, in criminal matters, “the pre-eminent concern is to reach a correct result” and “other considerations peculiar to criminal prosecutions may outweigh the need to avoid repetitive litigation,” Pleavy, 52 N.Y.2d at 64-65. Thus, the Court of Appeals in Pleavy held that the lower court had erred in precluding defendant from relitigating a suppression motion because in the second case, defendant offered “important proof bearing directly on the correctness” of the outcome of the previous suppression hearing that had not been previously introduced. Specifically, Pleavy offered to testify in his own defense at the second suppression hearing, which he declined to do at his first suppression hearing. Id. at 64-66.

Defendant’s reliance on Pleavy is misplaced for two reasons. First, as set forth earlier, the collateral estoppel law of New Jersey, rather than New York, applies, in this case. Furthermore, unlike the movant in Pleavy, Defendant here has not pointed to any “important proof bearing directly on the correctness” of the New Jersey Superior Court’s decision that was not already introduced at the March 2014 suppression hearing. Id. at 65. In fact, as Defendant noted in a supplemental letter to the Court, he did not wish to offer any new evidence at a hearing. (Doc. No. 25.)

To be sure, certain decisions applying collateral estoppel to suppression hearings have required the government to prove that a defendant had sufficient motive at the prior hearing to contest the admissibility of the evidence. For instance, a federal judge in Massachusetts has suggested that “courts should hesitate to estop a defendant who lost a suppression hearing in a previous matter involving charges [that were] relatively minor compared to the present charges.” Levasseur, 699 F. Supp. at 981. Nevertheless, it can hardly be disputed that Defendant here had a motive to vigorously litigate the suppression motion before the New Jersey Superior Court, where Defendant was charged with ten third-degree crimes, including one count of conspiracy to commit burglary, six counts of attempting to enter a residence for the purpose of committing offenses therein, and three counts of unlawful weapons possession. (Doc. No. 19-1 at 5-6 (summarizing the charges against Defendant in New Jersey)); Santini v. Fuentes, 795 F.3d 410, 419 n.12 (3d Cir. 2015) (explaining that under New Jersey law, “[a] third degree crime may result in 3-5 years if convicted” (citation omitted)). Accordingly, the Court concludes that Defendant is collaterally estopped from relitigating the validity of the October 2012 Stop and Search.

But even if collateral estoppel did not apply, the Court would reach the same result based on its review of the voluminous record from the New Jersey hearing and the video evidence. First, it is clear from the first two minutes of the video that the Ford Explorer was, in fact, blocking an entire lane of traffic, thereby giving McDowell reasonable suspicion to believe that the driver was committing a motor vehicle offense. See State v. Melvin, No. A-3058-13T2, 2016 N.J. Super. Unpub. LEXIS 1280, 2016 WL 3093061, at *5 (N.J. Super. Ct. App. Div. June 3, 2016) (traffic stop justified where defendant abruptly stopped in middle of two-way street and blocked traffic). Furthermore, the searches and seizures of the Back-Seat Case and the items on the floor of the Ford Explorer were clearly justified as a protective sweep and under the plain view exception. United States v. Miller, 430 F.3d 93, 98 (2d Cir. 2005) (noting that under Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), officers may “search the passenger area of an automobile for weapons when the officers possess specific and articulable facts that warrant the reasonable belief that a suspect is dangerous and may have immediate access to a weapon”); United States v. Feliz, 657 F. Supp. 2d 364, 373 (E.D.N.Y. 2009) (noting that “[a]n officer may seize evidence in plain view if: ‘(1) the officer’s initial intrusion was permissible under the [F]ourth [A]mendment; (2) the discovery of the evidence is inadvertent; and (3) the incriminating nature of the evidence is immediately apparent.'” (quoting United States v. Jenkins, 876 F.2d 1085, 1088 (2d Cir. 1989)).

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