Opinion
2009NY022396.
Decided December 1, 2010.
A combined Mapp/Huntley/Dunaway hearing was held before me on November 9, 2010. The People called one witness, Police Officer Luis Pena. The defense did not call any witnesses. The case was adjourned for counsel to submit their memoranda of law. This Court has considered the submissions of counsel.
I find the People's witness to be credible to the extent reflected in the findings of fact and conclusions of law. The defendant's motion to suppress physical evidence is denied, and the motion to suppress statements is granted in part and denied in part.
FINDINGS OF FACT
On March 19, 2009, Police Officer Pena, of the New York Police Department Housing Division was working the 5:30 p.m. to 2:05 a.m. shift. Officer Pena has worked for the NYPD Housing Division for two and one-half years and has made approximately 70 arrests and assisted in approximately 150 arrests. He was conducting "verticals" at 1829 Lexington Avenue in New York City, a drug-prone location. This building is a New York City Housing Authority Building. During this period, he encountered the defendant, Antonio Martinez. He observed the defendant enter the building lobby while someone was exiting the building, i.e., he did not use a key or the buzzer. The building is equipped with a keypad outside the door so that someone in the apartment can "buzz you in." While the defendant was standing in the lobby, Officer Pena approached him and asked if he knew anyone in the building to which the defendant responded in the affirmative. The defendant then placed his hands inside in his "hoody" and started walking backwards towards the elevator. He bent over the elevator shaft and tried to throw two small, rectangular decks of paper down the elevator shaft. The officer, based on his training and experience, believed the rectangular decks of paper contained cocaine because of the packaging. One of the objects that the defendant had tossed was recovered from the elevator platform and another was recovered from the elevator shaft.
"Vertical patrols" are "where police officers are on foot patrol in public housing to prevent trespassing, loitering, drug-related activity and other illicit behavior." People v. Hendricks, 43 AD3d 361, 362 (1st Dept. 2007).
The officer initially thought that it was heroin, and on cross-examination and re-direct explained that the packaging is the same for heroin and cocaine.
Upon observing the defendant's actions, Officer Pena attempted to place the defendant under arrest for possession of a controlled substance. The defendant resisted the arrest. A struggle ensued, and the officer and the defendant fell to the ground. Officer Pena's partner, Officer Mero, attempted to assist. The defendant kept his hands under his body while facing down, and refused to allow the officers to grab his hands. Finally, the defendant was placed in handcuffs. Officer Pena then went to apartments 7A and 10A because after further questioning, the defendant said that he was visiting friends in those apartments. No one opened the door in either apartment. The defendant was then taken to the precinct and asked pedigree questions, i.e., name, address and date of birth. The defendant gave an address in the Bronx. Officer Pena then inspected the items that were recovered. A white substance was inside the small, white rectangular paper packaging. The items were vouchered and sent to a lab for testing.
CONCLUSIONS OF LAW
The first issue is whether under the circumstances, Officer Pena had a right to approach the defendant to request information, i.e., to ask him if he knew anyone in the building. In People v. DeBour, 40 NY2d 210 (1976), the Court of Appeals set forth four levels of police intrusion and the quantum of knowledge necessary to reach each level. The most minimal intrusion is a request for information. "[A]pproaching to request information is permissible when there is some objective credible reason for that interference not necessarily indicative of criminality." People v. DeBour, 40 NY2d at 223.
In the instant case, as New York City police officers, Police Officer Pena and his partner are custodians of the New York City Housing Authority buildings, and their duties are to "keep the buildings free of trespassers." People v. Williams , 16 AD3d 151 (1st Dept. 2005), appeal denied, 5 NY3d 771 (2005). The officers were conducting a "vertical patrol" and "it is standard practice for officers, upon encountering an individual in such an area, to inquire whether the individual lives in the building or is an invited guest of a resident, and to ask for identification to determine if the individual is trespassing." People v. Hendricks , 43 AD3d 361 , 362 (1st Dept. 2007). The building in question was a drug-prone location, and although the defendant's act of entering the building without a key or use of the buzzer is "not necessarily indicative of criminality, the officer was warranted in making inquiry to determine if defendant was legitimately in the building." Id. at 363; see also, People v. Anderson, 306 AD2d 54 (1st Dept. 2003), appeal denied, 100 NY2d 578 (2003) ("Upon encountering a group of 9 or 10 persons including defendant descending a staircase from the second floor to the lobby in a drug-prone trespass affidavit' building, the police had an "objective credible reason' to ask defendant whether he lived there, which constituted a level one request for information. . . ."); People v. Mercado, 294 AD2d 132, 132-33 (1st Dept. 2002), appeal denied, 98 NY2d 770 (2002) (officers in the lobby of a building observed the defendant enter "by taking advantage of a tenant's exit from the building" and then "displayed their shields and approached defendant" who "abruptly turned around to leave. . . ." The Court held that there was at least an objective credible reason to ask whether he lived in the building.); People v. Crawford, 279 AD2d 267 (1st Dept. 2001), appeal denied, 96 NY2d 799 (2001) (court held officer, who entered a drug-prone building, and observed the defendant exit a ground floor apartment, look at the officer and start walking up the staircase, and then abruptly reverse course had an "objective credible reason" to ask the defendant if he lived there). Accordingly, in the within case, the defendant's act of entering a drug-prone, New York City Housing Authority building, without a key or use of the buzzer provided the police officer with an objective credible reason to approach the defendant.
"Where the initial approach constitutes legitimate and lawful conduct, the recovery of property discarded by the defendant as a result of that approach is also lawful (citations omitted). In any event . . . the defendant's conduct in discarding the [drugs] constituted an abandonment." People v. Braithwaite, 172 AD2d 548, 549 (2nd Dept. 1991), appeal denied, 78 NY2d 920 (1991). "Contrary to the defendant's contention, the record establishes that his attempt to discard the [drugs] . . . was an independent act involving a calculated risk', and not a response to unlawful police conduct (citations omitted)." People v. Eldridge, 178 AD2d at 609-10; see also, People v. Toodles, 184 AD2d 674 (2nd Dept. 1992), appeal denied, 80 NY2d 910 (1992); People v. Pruitt, 181 AD2d 748 (2nd Dept. 1992), appeal denied, 79 NY2d 1006 (1992); People v. Rivers, 176 AD2d 902 (2nd Dept. 1991), appeal denied, 79 NY2d 863 (1992). Clearly, the defendant's act of discarding the [drugs] constituted an abandonment. People v. Eldridge, 178 AD2d 609, 609-10 (2nd Dept. 1991); see also, People v. Merriman, 194 AD2d 745, 746 (2nd Dept. 1993), appeal denied, 82 NY2d 722 (1993); People v. Kosciusko, 149 AD2d 620, 621-22 (2nd Dept. 1989)..
Since the initial approach of the defendant was lawful, the small rectangular decks of paper which Officer Pena recognized, based on his prior experience with drug arrests, to be of a type "commonly used to carry . . . cocaine" and which did in fact contain cocaine, were properly recovered. People v. Rivers, 176 AD2d at 903; see also, People v. Braithwaite, 172 AD2d at 549. The defendant's conduct in voluntarily discarding the small rectangular decks of paper in a building elevator and elevator shaft produced probable cause for his arrest. People v. Dozier, 12 Misc 3d 128(A) (App. Term, 1st Dept. 2006), appeal denied, 7 NY3d 812 (2006). As such, the motion to suppress the drugs and statements as the product of an illegal arrest must be denied.
Furthermore, as a result of the abandonment of the drugs, the defendant forfeited any privacy interest therein. The defendant, therefore, lacks standing to contest the seizure of the drugs. People v. Davis, 2010 WL 4366839 (2nd Dept. 2010); People v. Toodles, 184 AD2d at 675; People v. Brown, 182 AD2d 451, 452 (1st Dept. 1992), appeal denied, 80 NY2d 828 (1992).
STATEMENTS
Upon the initial approach of the defendant at the scene, Officer Pena asked him if he knew anyone in the building to which the defendant responded in the affirmative. This question posed to the defendant was investigatory in nature and not the product of custodial investigation. As such, it is not subject to suppression because he had not received Miranda warnings. People v. Brown , 13 AD3d 1194, 1195 (4th Depy. 2004), appeal denied, 4 NY3d 828 (2005).
After the officers observed the defendant discard the drugs, and he was handcuffed and placed under arrest for possession of a controlled substance, he was questioned further about whether he knew anyone in the building. The Court finds that the defendant was in custody at this time. The test for determining whether a person is in custody is whether a reasonable person, innocent of any crime would have believed that he was not free to leave. People v. Yukl, 25 NY2d 585, 589 (1969). Clearly, a reasonable person in the defendant's position would not have believed that he was free to leave. Since the defendant was in custody at this point, he should have been advised of his Miranda rights. Having not been so advised prior to further questioning, the statements attributable to the defendant that he was visiting someone in apartment 7A and 10A are suppressed.
The responses to the officer's questions at the precinct as to his name, address and date of birth are not subject to suppression even absent Miranda warnings. Such pedigree questions are not subject to suppression even when obtained without Miranda warnings. People v. Rodney, 85 NY2d 289, 292-93 (1995).
This opinion shall constitute the decision and order of the Court.