Opinion
Indictment No. 74578-20
02-08-2024
People of the State of New York v. Ekowan Lyons-Thomson, Defendant.
People: Assistant District Attorneys Ashley Infante and Alexa Bennett (Kings County District Attorney's Office). Defense Attorney: Bernarda Villalona, Esq. (18B).
Unpublished Opinion
People: Assistant District Attorneys Ashley Infante and Alexa Bennett (Kings County District Attorney's Office).
Defense Attorney: Bernarda Villalona, Esq. (18B).
Raymond L. Rodriguez, J.
Defendant, Ekowan Lyons-Thomson, is charged with Criminal Possession of a Weapon in the Second Degree, in violation of New York Penal Law § 265.03[3].
On January 19, 2024, this Court conducted a Dunaway and Mapp hearing, (Dunaway v. New York, 442 U.S. 200 [1979]; Mapp v. Ohio, 367 U.S. 643 [1961]). The Dunaway hearing pertained to defendant's apprehension and arrest for Criminal Possession of a Weapon in the Second Degree. The Mapp hearing pertained to a firearm recovered from a backpack allegedly belonging to defendant, that was allegedly discarded by defendant.
The People called two witnesses at the hearing, Police Officer Sarah Marriott (hereinafter "Officer Marriott"), and Detective Luis Palhete (hereinafter "Detective Palhete") of the New York Police Department (hereinafter "NYPD"). The People put into evidence photographs of the backpack, a letter recovered from inside the backpack, as well as the photo array and correlating paperwork. Defendant did not call any witnesses.
Based on the testimony of the witnesses and the evidence presented, the Court makes the following Findings of Fact and Conclusions of Law.
I. Findings of Fact
A. Testimony of Police Officer Sarah Marriott
Officer Marriott has worked for the NYPD for approximately three years. She is currently assigned as a public safety police officer at PSA1, where she has been employed for two and a half years. Prior to the current assignment, Officer Marriott was in the police academy. Officer Marriott's duties and responsibilities as an officer at PSA1 include responding to high-crime areas and writing summonses. Officer Marriott testified that PSA1 covers the Red Hook, Canarsie, and Coney Island neighborhoods in Kings County, New York. The Court finds her testimony to be credible and reliable.
On June 2, 2023, Officer Marriott was working an overtime tour. During this tour she was assigned to patrol the Red Hook area in an unmarked police vehicle. She was working with her partner, Detective Palhete. Both she and her partner were in uniform.
At approximately 4:49 p.m. on June 2, 2023, Officer Marriott observed an individual, wearing a white shirt, black pants, and a backpack on both his shoulders, riding a bicycle on the sidewalk. At the time of the observation Officer Marriott did not know the identity of the individual, though she later learned his name to be Ekowan Lyons-Thomson (hereinafter "defendant"). At the time of the observation, Officer Marriott was in the driver's seat of her vehicle and Detective Palhete was seated in the passenger's seat. Officer Marriott's vehicle was on Bush Street facing Columbia Street, in Kings County. Officer Marriott testified that nothing was obstructing her view of defendant at that time. After observing defendant riding a bicycle on the sidewalk, Officer Marriott activated the lights and sirens on her police vehicle and attempted to pull defendant over. Officer Marriott testified that she and Detective Palhete both exited the vehicle at which time defendant stopped and looked at them. Officer Marriott then identified herself as police and told defendant to "[h]old on," at which point defendant dropped his bicycle and "took off" on foot. Detective Palhete pursued defendant on foot while Officer Marriott pursued in the vehicle. Officer Marriott testified the defendant made a right onto Lorraine Street, another right onto Columbia Street, and then made a final right into a development located at 80 Bush Street. Officer Marriott arrived at 80 Bush Street and apprehended defendant. Officer Marriott testified that at the time she apprehended defendant he was no longer carrying the backpack she had previously observed him to be wearing and she did not observe said backpack in the vicinity of the apprehension. Approximately two to three minutes after apprehending defendant, Officer Marriott was handed the backpack by Police Officer Adler.
Officer Marriott identified defendant in the courtroom as the individual she observed on the bicycle on June 2, 2023.
The bicycle was later recovered by NYPD.
Hearing tr at 7, lines 24-25, at 8 lines 1-7.
Two photographs of defendant's backpack were entered into evidence as People's Exhibit 1 and People's Exhibit 2.
Defendant and the backpack were both transported back to the 76th Precinct. Once at the precinct, Officer Marriott conducted an inventory search of the backpack, whereby she emptied its contents to voucher for safekeeping. Inside the backpack Officer Marriott observed school papers, letters from school , a school ID, a substance that appeared to be marijuana, pills, money, and a dark blue firearm with an extended magazine.
One letter recovered from defendant's backpack was entered into evidence as People's Exhibit 4.
A photograph of the firearm was put into evidence as People's Exhibit 3.
On cross examination, Officer Marriott testified that when she first observed defendant riding his bicycle, he was inside the Red Hook projects near the buildings, which is private property. As soon as defendant "turned the corner and... was on the actual sidewalk," meaning the public sidewalk located outside the development, Officer Marriott activated her lights and sirens. Officer Marriott testified that when she first observed defendant's backpack it did not appear to be open, and the contents were not viewable from her position. Officer Marriott testified that she did not observe any bulge on defendant's pants, waistband, or t-shirt. Officer Marriott testified that defendant fled on foot and said nothing to her or her partner. Officer Marriott did not see defendant drop his backpack but testified that he was no longer wearing it when he was apprehended.
Hearing tr at 17, lines 10-11.
When asked on cross examination the purpose for the stop, Officer Marriott testified that defendant was being stopped solely because he was riding his bicycle on the sidewalk, which Officer Marriott testified is not a crime, but a violation of the New York City Administrative Code (hereinafter "NYC Admin Code").
Officer Marriott testified that after chasing defendant, she was the first person to reach him. Officer Marriott yelled at defendant to stop and put his hands up, and he complied; upon reaching defendant, she observed defendant turn around and put his hands up and then start to get down on the floor, at which point Officer Marriott put handcuffs on defendant and searched his pockets. When defendant put his hands up, he had no weapon in his hands or on his body. Officer Marriott testified that at this point, defendant was placed under arrest for Obstructing Governmental Administration (hereinafter "OGA"). Defendant was not free to leave. Officer Marriott testified, "So for OGA, usually, if we - even a violation, it's in lieu of an arrest. So with that violation, he ran off from us. Since he ran from us, now you're obstructing administration of us dealing with you. Since that, now you're being cuffed so you don't flee."
Hearing tr at 21, lines 13-17.
Officer Marriott testified that although she was wearing body-worn camera, the camera was not activated until she exited her car at 80 Bush Street, stating that she thought she had activated it earlier but when she looked down and realized it wasn't on, she activated it. She further testified that Detective Palhete also did not activate his body-worn camera right away. Thus, the initial interaction with defendant was not captured on body-worn camera.
Officer Marriott testified that when she observed the backpack at the precinct it was zipped. She then unzipped it to view the contents. Officer Marriott testified that prior to her unzipping the backpack at the precinct, none of the officers were aware of the contents of the backpack, specifically that it contained a firearm, and that there was no mention on scene of a firearm inside the backpack.
B. Testimony of Detective Luis Palhete
Detective Palhete has been employed with the NYPD for eleven years. After the academy, he spent one-and-a-half years with the 67th precinct. After that he served approximately eight years as a police officer in the Public Safety unit, after which he became a detective with PSA1. He has been a detective with PSA1 for ten months. His duties and responsibilities as a detective with PSA1 include patrolling high-crime areas, responding to high-crime calls, making arrests, and issuing summonses. The Court finds his testimony to be credible and reliable.
On June 2, 2023, Detective Palhete was working an overtime patrol tour from 6:07 a.m. to 2:42 p.m., patrolling the Red Hook area in Kings County, New York. He was in uniform, sitting in the passenger seat of an unmarked police vehicle. At approximately 4:49 p.m. Detective Palhete observed an individual wearing a white t-shirt, black shorts, and white sneakers riding a black electrical bicycle on the sidewalk. At the time of the initial observation Detective Palhete did not know the name of the individual but later learned the individual to be defendant. Detective Palhete first observed defendant at Bush and Hicks Street in Kings County. He observed defendant to be wearing a black backpack with white stripes on the side, worn around defendant's shoulders. Detective Palhete testified that after observing defendant riding the bicycle on the sidewalk, he attempted to stop defendant by activating the lights on the police vehicle. Detective Palhete then opened his door and looked at defendant. Defendant looked back at Detective Palhete. After making eye contact with defendant, defendant dropped his bicycle, and began to run towards Lorraine Street. Detective Palhete then ran after defendant. While running, Detective Palhete observed defendant drop his backpack. At the time of the observation, Detective Palhete was on Lorraine Street behind defendant; defendant was across the street, Detective Palhete was on the other side of the street. Detective Palhete observed defendant use both of his hands to remove the straps of the backpack from his shoulders, away from his shoulders, and observed the backpack fall to the ground near 86 Lorraine Street. Detective Palhete continue to run after defendant and observed defendant run towards Loraine and Columbia, and make a right on Columbia Street, run towards Bush Street, then make a right on Bush Street. Detective Palhete observed defendant being apprehended in front of 80 Bush Street by his partner, Officer Marriott. After defendant was apprehended, Detective Palhete communicated on the NYPD radio that he observed defendant drop a backpack in front of Hicks and Lorraine Street. Detective Palhete testified that approximately three minutes after putting that information over the radio, he observed Officer Adler hand the backpack to Officer Marriott. Detective Palhete identified the backpack in People's Exhibit 1 to be the same backpack he just described. The backpack was brought to the 76th precinct, where Officer Marriott took possession of it and began an inventory search. At the time of the search Detective Palhete was in the cells with defendant. Detective Palhete first observed the firearm after Officer Marriott had taken it out of the backpack. Detective Palhete described the firearm as dark blue with an extended magazine. Detective Palhete testified that defendant's bicycle was picked up by Officer Lali and Officer Vera.
On cross examination, Detective Palhete testified that when he observed defendant, he did not observe any weapons on defendant's person nor did he observe any bulge. He further testified that when he observed the backpack on defendant's shoulders it was zipped closed and the contents were not visible. When Detective Palhete observed Officer Adler hand the backpack to Officer Marriott it was still zipped closed. The bag was not open prior to being at the precinct. Detective Palhete was first informed about the firearm after he left the cells.
Detective Palhete testified that defendant was placed under arrest for "obstruction", specifically for running from the officers and committing a violation. Detective Palhete testified that although he attempted to turn on his body-worn camera when he first observed defendant, it did not turn on. It was not until defendant was apprehended that Detective Palhete looked down and discovered his camera was off.
Detective Palhete testified that when asked on the radio run why he was stopping defendant, he did not mention that defendant was riding his bicycle on the sidewalk or OGA, but stated that he was stopping defendant because he ran from them. (Hearing tr at 41, lines13-25, at 42, lines 1-25, at 43, lines 1-7).
II. Conclusions of Law
A. Probable Cause for Arrest (Dunaway)
While a defendant has the ultimate burden of proving the illegality of police conduct, the People have the initial burden to introduce evidence that credibly establishes either a lawful rationale for the conduct of the police, or some other basis for averting suppression. (People v Berrios, 28 N.Y.2d 361, 367 [1971]). Additionally, the People have the burden to establish that the police had probable cause to arrest the defendant (People v Wise, 46 N.Y.2d 321 [1994]). Probable cause exists when the facts and circumstances within an officer's knowledge are sufficient to believe that a defendant has committed an offense (People v Oqden, 36 N.Y.2d 382 [1975]). In this case, such probable cause exists. Pursuant to C.P.L. § 140.10(1)(b), "a police officer may arrest a person for... [a] crime when he or she has reasonable cause to believe that such person has committed such crime, whether in his or her presence or otherwise." The arresting officer need not provide "proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed...." (People v. Bigelow, 66 N.Y.2d 417, 423 [1985]).
See also People v. Shulman, 6 N.Y.3d 1, 25-26 [2005] [internal quotation mark and citation omitted] ("When determining whether the police had probable cause to arrest, the inquiry is not as to defendant's guilt but as to the sufficiency for arrest purposes of the grounds for the arresting officer's belief that the defendant was guilty").
Officer Marriott and Detective Palhete both testified that on June 2, 2023, they observed defendant, riding a bicycle on a public sidewalk, a violation of the NYC Admin Code. They further testified that they activated the lights and sirens of their police vehicle and upon attempting to stop defendant, defendant got off his bicycle, and took off running. Detective Palhete pursued defendant on foot while Officer Marriott pursued in the police vehicle. After a chase, Officer Marriott caught up with defendant who then put his hands up and began to get down on the floor, at which point Officer Marriott put handcuffs on defendant and placed him under arrest for OGA.
In People v. De Bour, (40 N.Y.2d 210 [1976]), the Court of Appeals outlined the procedure in which Courts must consider the lawfulness of police-citizen encounters. The Court of Appeals established four levels of street encounters between police officers and citizens. Each level articulates the necessary circumstances to justify specific officer authority and action.
The first level is predicated on an objectively credible reason not indicative of criminality. Under level one, the encounter between the officer and the citizen must be brief and non-threatening (People v Hollman, 79 N.Y.2d 181 [1992]). There should be no indication of harassment or intimidation by the officer (id). The interaction cannot cause the citizen to reasonably believe that they are suspected of a crime, no matter how calm and polite the officer's tone may be (id). Any request for information must be supported by an objective credible reason, not necessarily indicative of criminality (id).
Level two is the common law right of inquiry that is predicated on a founded suspicion of criminality. This level authorizes the officer to ask pointed questions that would reasonably lead a person to believe that he/she is suspected of a crime (Hollman at 185). At this level, the officer can request permission to search (Hollman, 79 N.Y.2d 181). Questions can be more extended and accusatory and focus on possible criminality (id).
Level three is predicated on a reasonable suspicion of criminal activity, permitting an officer to stop and frisk the individual if the officer is fearful of a weapon (Terry v. Ohio, 392 U.S. 1 [1968]). An officer has reasonable suspicion if there is a "quantum of knowledge sufficient to induce an ordinary prudent and cautious man under the circumstances to believe criminal activity is at hand" (People v. Cantor, 36 N.Y.2d 106, 112-113 [1975]). (See also People v. Dantzler, 208 A.D.3d 590, 591 [2022]; People v. Bowers, 148 A.D.3d 1043 [2017]). In order to justify the intrusion, "the officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice." Cantor at 113.
Level four is predicated on probable cause that a crime has been, is being, or is going to be committed. Under level four, the officer has the authority to arrest the individual and conduct a full search incident to a lawful arrest (De Bour at 223).
Here, Officer Marriott and Detective Palhete observed defendant violate a city ordinance. Based upon this observation and defendant's subsequent flight, the officers had reasonable suspicion to stop and pursue defendant.
New York City Administrative Code § 19-176.
See People v. Britt, 34 N.Y.3d 607 [2019] (New York Court of Appeals found that defendant drinking a beverage concealed in a brown paper bag in a public area coupled with his flight when police approached him created a reasonable suspicion that defendant had committed or was committing a crime.); People v. Delgado, 4 A.D.3d 310 [1st Dept 2004] ("The Police were entitled to pursue defendant when he fled after committing a violation in their presence).
Officer Marriott testified that after apprehending defendant he was placed under arrest for OGA. A person is guilty of OGA under § 195.05 of the Penal Law when, "he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act... ". Here, defendant's behavior did not meet the elements required of OGA. There is nothing in the record to suggest that defendant obstructed the administration of law using physical force or physical interference. Upon catching up with defendant, defendant put his hands in the air and began to comply with the officers. There is no testimony that defendant resisted arrest, used threating language, or used any physical force. Fleeing alone does not constitute physical interference and thus is not enough to make out OGA. Thus, here, there was not probable cause to arrest defendant for OGA.
See People v. Case, 42 N.Y.2d 98 [1977].
Nonetheless, the Court finds that there was probable cause to arrest defendant for his violation of the NYC Admin Code prohibiting riding a bicycle on the sidewalk. The New York Court of Appeals has maintained a strong preference against custodial arrests in response to minor traffic violations where there is a reasonable summons alternative available. Notably, the case before this Court does not involve a traffic violation. But even were the Court to treat this case as more similar to a traffic infraction, the Court still finds that here, given the totality of the circumstances, a summons was not a reasonable alternative. Defendant's conduct, specifically jumping off his bicycle, discarding a backpack (that he knew contained contraband), and running away from the police, evidenced that he had no intention of cooperating with police or submitting to their authority for the issuance of a summons. Thus, the Court finds that the police acted reasonably in arresting defendant.
People v. Howell, 49 N.Y.2d 778 [1980].
See People v. Lewis, 50 A.D.3d 595 [4th Dept 2008] [internal citations omitted], (Defendant was observed committing a violation in the presence of police officers, There, the Court found that the officers properly placed defendant under arrest, stating, "The officer's decision to make an arrest for a violation is lawful regardless of whether there is reason to suspect the presence of weapons or evidence would be found on defendant's person. These principles apply equally to arrests for violations defined in statues other than the Penal Law. While there is an exception for minor vehicular offenses, we see no reason to apply it here). See also People v. Solomon, 31 A.D.3d 1178 [2006], ("The police may arrest a person for a violation without a warrant when, inter alia, they have 'reasonable cause to believe that such person has committed such offense in [their] presence'").
See People v. Bradford, 979 N.Y.S 2d 732, 733 [2014] [internal citations omitted], ("The police noticed that vehicle in which defendant was a passenger had failed to signal a turn appropriately. The police attempted to stop the vehicle by activating lights and sirens... but the driver of the vehicle failed to pull over, and one of the officers noticed that defendant was not wearing a seatbelt. When the vehicle finally stopped, defendant immediately fled from it and ran down the idle of the street. Defendant was subsequently arrested... Under those circumstances we conclude that... the issuance of a summons would not have been a reasonable 'alternative to custodial arrest.' Here, defendant's conduct demonstrated that he was 'intent on not cooperating with the police,' that he would 'not even temporarily submit to the [] authority [of the police] for the purpose of the issuance of a summons,' and that he 'wanted to escape from the police and avoid prosecution altogether'").
Seizure of Defendant's Property (Mapp)
A Mapp hearing was conducted to determine whether evidence was unlawfully seized and should be suppressed. As a threshold matter, the defendant has the initial burden to prove a legitimate expectation of privacy in the place or item searched to establish standing (People v Rodriguez, 69 N.Y.2d 159 [1987]).
The People have the initial burden of going forward with credible evidence tending to show the legality of the police conduct which led to the recovery of the property (People v Berrios, 28 N.Y.2d 361 [1971]). In determining the admissibility of evidence seized from a defendant, the Court must consider the full extent of the conduct between the police officer and the defendant during the time in which the evidence was seized.
As established above, the officers here lawfully approached defendant to issue him a summons after observing him commit a NYC Admin Code violation. Upon approach, defendant jumped off his bicycle and fled. During the pursuant, defendant took off his backpack and discarded it. He then continued running and when Officer Marriott caught up with him, he surrendered. Defendant was then lawfully arrested on the violation.
Arrest for traffic violations often does not allow for incidental searches. Here again, the Court notes that the present case does not involve a traffic violation, yet the rationale underlying the impermissibility of a search incident to a traffic violation arrest could be seen to apply to our facts. A major rationale underlying Marsh and other traffic cases is that "except in the most rare of instances, there can be no 'fruits' or 'implements' of such infractions". Similarly, a search incident to arrest of a defendant for riding his bicycle on a sidewalk will likely not produce any evidence that relates to that infraction. Significantly however, in People v. Weintraub, 35 N.Y.2d 351 [1974], the New York Court of Appeals clarified that Marsh and Adams, in discussing limitations on searches incident to arrest, were limited to traffic related arrests. The Court held, "While based upon the need to disarm and to discover or preserve evidence, the authority to search incident to a lawful custodial arrest should not turn on what a court later determines was the probability that weapons or evidence would be found in the defendant's possession. The lawful custodial arrest being a constitutionally reasonable intrusion upon the defendant's privacy, the search incident requires no additional justification".
See People v. Marsh, 20 N.Y.2d 98, 101 [1967] [internal citations omitted], ("Although, as a general rule, when an individual is lawfully arrested, the police officer may conduct a contemporaneous search of his person 'for weapons or for the fruits of or implements used to commit the crime', we do not believe that the Legislature intended the rule to cover arrests for traffic violations. It is obvious that, except in the most rare of instances, there can be no 'fruits' or 'implements' of such infractions and the search, to be upheld, would have to be justified as one for weapons. But there is something incongruous about treating traffic offenders as noncriminals, on the one hand, and subjecting them, on the other, to the indignity of a search for weapons"); People v. Adams, 32 N.Y.2d 451 [1973] ("the lawfulness of an arrest will not always justify an otherwise illegal search, and in fact, 'General or exploratory searches are condemned even when they are incident to a lawful arrest'").
Id.
This is distinguishable for example from Lewis supra where a search of defendant incident to his arrest for a violation involving scalping tickets would likely have produced contraband related to his offense.
Weintraub at 353-5
This Court however need not determine whether the present case should be treated akin to a traffic violation or otherwise. The point is moot. Importantly, no property was recovered from defendant's person subsequent to his arrest. The only issue before the Court is the recovery of a firearm from inside defendant's backpack, which the Court finds defendant abandoned.
Detective Palhete testified that while chasing defendant, he observed defendant use both of his hands to remove the straps of the backpack from his shoulders, away from his shoulders, and drop his backpack to the ground. Defendant continued to run, and once Officer Marriott caught up with him, defendant put his hands in the air and began to comply. Defendant's conduct in abandoning his backpack was intentional and voluntary. He made a calculated decision to rid himself of the contraband before surrendering in the hopes that the officers would not find it or link it to him. "Where a defendant abandons property, there is no search or seizure". The defendant, by intentionally discarding his backpack, terminated any reasonable expectation of privacy he had in that bag. Furthermore, the Court as stated above, has found that the officers chase of defendant was legal under the circumstances. Thus, the Court rejects defendant's claims that any alleged abandonment on his part was precipitated by unlawful police conduct.
See People v. Oliver, 39 A.D.3d 880, 880, [2nd Dept 2007] ("A defendant abandons property when he voluntarily relinquishes possession in a 'calculated decision' in response to police conduct"); People v. Medina, 107 A.D.2d 302, 307 [1985] [internal citations omitted] ("Moreover, inasmuch as the officers were justified in approaching the defendants for the purpose of inquiry, the defendants' abandonment of the property at that time cannot, as the defendants argue herein, be attributed to their subsequent arrests. Accordingly, since abandoned property is outside the scope of constitutional provisions, suppression of the property was not warranted")
People v. Hogya, 80 A.D.2d 621 [1981]. There, the court found that the officer did not articulate reasonable suspicion for requesting identification from defendant, however, still found that, "[s]uch illegality... did not taint the retrieval by the police of the jacket which, under the facts of this case, had been abandoned by the defendant."
Therefore, the Court denies the defendant's motion to suppress the firearm.
This constitutes the Opinion, Decision, and Order of this Court.