Opinion
Docket No. CR-0037952-23BX
12-12-2023
The People of the State of New York, v. Joshua Muhammad, Defendant.
For the Defendant: Joshua Muhammad, Pro Se (Scott Spivak, of counsel to Joshua Muhammad) For the People: Darcel D. Clark, Bronx District Attorney (By: ADA Ibrahim Haddad, ADA Marc Russell, ADA Shannon Spada, and ADA Robert Ferrara)
Unpublished Opinion
For the Defendant: Joshua Muhammad, Pro Se (Scott Spivak, of counsel to Joshua Muhammad)
For the People: Darcel D. Clark, Bronx District Attorney (By: ADA Ibrahim Haddad, ADA Marc Russell, ADA Shannon Spada, and ADA Robert Ferrara)
YADHIRA GONZÁLEZ-TAYLOR, J.
Defendant was arrested and charged with petit larceny [Penal Law ("PL) § 155.25], and criminal possession of stolen property in the fifth degree (PL § 165.40(5), Class A Misdemeanors.
On July 4, 2023, via omnibus motion, defendant, Pro Se, moved to suppress the property taken from him on the day of his arrest or, in the alternative, for a Mapp hearing.
On August 23, 2023, Honorable Dan Quart granted a Mapp hearing. The hearing was conducted on October 4, 2023 and November 29, 2023.
The People called two witnesses at the hearing, Police Officer ("PO") Danny Padilla and PO Michael Hughes of the 45th Precinct. The Court finds PO Padilla's and PO Hughes's testimonies to be credible.
Defendant's motion to suppress all evidence under Mapp is DENIED for the reasons set forth below.
Findings of Fact
PO Dan Padilla of the 45th Precinct testified that he has been an officer for six years and is currently assigned to the detail of Youth Coordination Officer; that he has effected approximately 85 arrests and has participated or assisted in over 100 arrests. PO Padilla further testified that on February 16, 2023, he was assigned at the mall located at 200 Baychester Rd, also known as Bay Plaza Mall. PO Padilla further testified that he was inside the mall when he participated in arresting defendant.
PO Padilla responded to a radio call for help from PO Michael Hughes from the Macy's Department Store located inside Bay Plaza Mall and when he arrived, he observed PO Hughes and his partner PO Trinidad with the defendant in handcuffs. PO Padilla added that the loss prevention officer assigned to Macy's was also present and that he was informed by PO Hughes that defendant was observed on surveillance removing property from Macy's. Further, that they stopped the defendant and placed him under arrest and brought him back to the security office. Regarding the contents of PO Hughes Body Worn Camera (People's Exhibit 1), PO Padilla testified that the loss prevention officer, Ian Humphrey, could be seen on body worn camera carrying a bag he (the loss prevention officer) had obtained from defendant.
During cross-examination, PO Padilla testified that he identified defendant to be an individual named Joshua Muhammad when he obtained an identification card from defendant's pocket; that he did not personally see where the bag in question came from, but rather was informed by the loss prevention officer that the bag was taken from defendant. PO Padilla further testified that it was PO Hughes who cuffed defendant and that defendant dropped the bag he was holding at the direction of the officer.
The People also called PO Michael Hughes of the 45th Precinct. PO Hughes testified that he has been employed by the NYPD for approximately three years and ten months and is currently assigned as the neighborhood coordinator for the 45th Precinct. PO Hughes added that he has personally conducted 34 arrests and has participated in over 75 arrests. Of those arrests, approximately fifteen have involved allegations of petit larceny.
PO Hughes further testified that on February 16, 2023, he was assigned to a mall operation and was working with his partner PO Trinidad when he arrested defendant Joshua Muhammad at the Bay Plaza Mall. Additionally, that part of his assignment was to assist department stores with any potential shoplifters, and he was in the surveillance room with loss prevention officer Ian Humphreys and his partner PO Trinidad where they were observing live footage of the Macy's department store. PO Hughes further testified that he was informed by Ian Humphreys that Mr. Humphreys observed a shoplifting in progress and he along with Mr. Humphreys and PO Trinidad left the surveillance room and proceeded to stop the defendant and arrest him. He added that he learned from Mr. Humphreys that defendant had an empty bag and had a number of items he was holding; that defendant entered the changing room and left the room minutes later with the bag full of items and he walked past the points of sale and left without paying for the items he took.
PO Hughes further testified he also observed footage of defendant leaving the changing room with the bag full of items and saw him leave the store without paying; that Macy's has several floors with cash registers and defendant did not stop at any point to pay, and instead, left the store. It was then that PO Hughes, PO Trinidad and the loss prevention officer Ian Humphreys left the surveillance room, followed defendant and arrested him for shoplifting. PO Hughes added that it was either him or PO Trinidad that ordered defendant to drop the bag prior to arresting him.
During cross-examination, PO Hughes testified that Ian Humphreys is not an employee of the NYPD and that Macy's is not a division of the NYPD either. He clarified that he does not work for Macy's but rather for the NYPD and was working as a police officer on the day in question whereas Ian Humphreys was working as a loss prevention officer. Further, that either he or his partner asked the defendant to put the bag down because they were arresting him. PO Hughes further testified that he believes a list of stolen items was produced but it was not him who created the list of items and that it was Ian Humphreys who was pressing a claim against defendant; and that, he never saw defendant placing items inside the bag.
The People submitted video footage of the incident in question (People's Exhibit 1-3). People's Exhibit 1 and 2 depict Ian Humphreys and members of the NYPD detaining and arresting defendant. People's Exhibit 3 depicts the moments that led up to the arrest. People's Exhibit 3 depicts a person identified by PO Hughes as defendant perusing the sunglass display while holding what appears to be a folded bag under one arm. Defendant continues to walk throughout the store, stops at a costume jewelry display and takes what appears to be a necklace and walks away. The footage then depicts defendant picking up several items of clothing. Another clip shows defendant enter a dressing room with the items of clothing in his hands. Moments later, defendant exits the dressing room with what appears to be a bag full of items.
The video footage further depicts defendant exiting the store without paying while holding the bag full of items. He is then followed by a store employee and Ian Humphreys along with police officers. The footage then shows defendant being escorted back into the store.
Defendant did not present any evidence on his behalf.
Defendant's Contentions
Defendant contends that the government acted in concert against the peace and dignity of defendant and attempted to place him in servitude through the use of fraud and that the officers acted without a warrant and without probable cause but relied merely on suspicion.
Additionally, although defendant neither requested nor was granted leave to file a brief following the conclusion of the Mapp hearing, the Court acknowledges receipt of what purports to be a "Motion for Suppression of Evidence," dated December 4, 2023. While defendant's submission alleges no new allegations of fact nor applicable legal arguments, he does reference testimony elicited on cross-examination of PO Hughes that the bag found on defendant's person belonged to defendant. However, the record demonstrates that upon redirect examination, PO Hughes also testified that the lawful custodian of the items inside of the bag were Macy's employees.
Accordingly, defendant has proffered no evidence which warrants a continuation of the Mapp hearing, or suppression of the evidence obtained.
The People's Contentions
The People contend that the police had probable cause to arrest defendant based on the information they received and observations they made on February 16, 2023, which included the observation via video surveillance of defendant taking items in a bag without paying for them.
Conclusions of Law
The Police Had Probable Cause to Search Defendant Incident to Lawful Arrest
The People have the burden of presenting sufficient evidence of reasonable cause to show the legality of police conduct at suppression hearings (see People v Baldwin, 25 N.Y.2d 66, 302 N.Y.S.2d 571, 250 N.E.2d 62 [1969]; People v Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65, 209 N.E.2d 694 [1965]). The People meet their burden when they present credible evidence and facts, not just conclusions or beliefs of their witnesses (see People v Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709 [1971]). The People must demonstrate that the circumstances surrounding the officer's observations provided the officer with the authority to act.
Once the People meet their initial burden, the burden shifts to the defendant to demonstrate, by a preponderance of the evidence, the illegality of the police conduct in question (see People v. Berrios, supra). Illegally obtained evidence is inadmissible at trial (see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 [1961]).
Here, the Court must determine if the People established sufficient evidence to show that the police had probable cause to conduct a warrantless search of defendant and further, whether defendant showed by the preponderance of the evidence that the search was not pursuant to a warrant exception.
A police officer may arrest a person for" a crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise" (see Criminal Procedure Law ["CPL"] 140.10[1][b]). An arrest is lawful when it is based on probable cause. Probable cause exists when "the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed" (see Stacey v. Emery, 97 U S 642, 645, 24 L.Ed. 1035 [1878]; Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.E.2d 543 [1925]). A warrantless search incident to lawful arrest is permissible to protect the arresting officer, to prevent escape and to stop the destruction of evidence of a crime (see People v. Garcia, 132 Misc.2d 350, 354 [1986]).
In the case at bar, the People presented sufficient evidence that established that the police acted lawfully; that they arrested defendant based on probable cause; and that, the search was incident to the lawful arrest. Additionally, defendant did not meet his burden of presenting evidence to established by a preponderance of the evidence that the search was not subject to one of the exceptions to a warrant requirement.
The loss prevention officer, Ian Humphreys, is the first person to observe defendant acting in a suspicious manner when defendant is seen perusing through items while holding an empty bag under his arm. This behavior by itself would not have warranted a stop as there is nothing illegal about a person holding a bag while looking at goods for sale in a department store. However, added to other circumstances such as defendant going back and forth looking at items in a hurried manner; entering the dressing room with the empty bag and several items; and then, leaving the room with the bag full of goods raises the probable cause to believe that he was in the process of committing a larceny which he completed by leaving the store without paying. Any reasonable person would surmise that defendant, while inside the dressing room, placed the items he was previously holding inside the bag with intentions of either proceeding to a cashier's desk to pay or not. His quickly leaving past the loss prevention detectors as depicted in the video surveillance confirmed his intent to commit the crime of petit larceny.
The video surveillance and information received from the loss prevention officer, Ian Humphreys, provided sufficient knowledge and trustworthy information to warrant PO Hughes, who was present in the surveillance room, or any person of reasonable caution to form the belief that defendant took items from Macys without paying for them, in direct violation of PL 155.25. Further, the video footage illustrated that defendant perused and picked up items from the display areas in the store and entered a dressing room with the same and exited the dressing room with a bag full of goods. The video footage further illustrated that defendant exited the store without stopping at any point of sale or cashiers desk to pay for the items he took. These actions provided sufficient probable cause to stop, arrest, and search defendant for the crime committed. The action of one of the officers to direct defendant to drop the bag and the subsequent seizure of the bag were done lawfully within the permissible factors of protecting the officer, preventing the escape of defendant, and stopping the possibility that defendant would discard the items prior to or during the arrest.
Thus, as the officers were effecting an arrest for petit larceny, the seizing of the bag was a result of a search incident to a lawful arrest.
Based upon the foregoing, defendant's Mapp motion to suppress all evidence is denied.
This constitutes the decision and order of the Court.