Opinion
2044-2008.
Decided November 3, 2010.
Jeffrey Rizzo, Esq., Counsel for the Defendant.
Clorisa Cook, Assistant District Attorney, Office of the Bronx District Attorney
Defendant is charged with criminal possession of a weapon in the second degree (PL 265.03), criminal possession of a weapon in the fourth degree (PL 265.01) and possession of ammunition (AC 10-131 [I] [3]). Defendant moved, among other things, for suppression of a gun and statements made to the arresting officer on the grounds that they were obtained without probable cause in violation of N Y Const, art I, § 12, and U S Const, 4th Amendment, thus claiming they were fruits of an unlawful arrest. By decision dated December 8, 2008, Justice Nicholas Iacovetta ordered that a combined Mapp/Huntley/Dunaway hearing be conducted. On January 19, 2010, this matter was administratively transferred from Part 50, Justice Ann Donnelly, to this court, at which time such hearing was held.
This court subsequently heard oral argument from both the defendant and the People. Because of the nature of the legal issues presented, this court adjourned the matter and afforded the parties an opportunity to submit memoranda of law in support of their respective positions by February 8, 2010. On February 8, 2010, the defendant submitted his memorandum of law in support of suppression. No memorandum was received from the People. After considering the oral arguments made by both the defendant and the people, and after reviewing defendant's memorandum of law, prior court proceedings and documents on file with the court, this court granted defendant's motion to suppress in its entirety. This expands that decision.
Findings of Fact
At the hearing, the People called two witnesses: New York Drug Enforcement Administration Special Agent Salvador Aceves ("Agent Aceves") and New York City Police Department Detective John Reilly ("Detective Reilly"). The defense called no witnesses. This court finds their testimony credible to the extent indicated herein. Several issues of law concerning suppression, however, were raised.
Agent Aceves testified that he had been a member of the New York Field Division of the Drug Enforcement Administration for five years, and has made between fifty and one hundred arrests (H: 5).
Agent Aceves testified that on April 3, 2008, he, along with his supervisor, Ken Bradley ("Agent Bradley"), and the members of his field team, conducted surveillance at West 225th Street and Broadway in Bronx County based on information received from an undisclosed source that a drug trafficking organization was planning to engage in a transaction that evening (H: 5-6). The agents were informed that the seller would arrive in a vehicle containing approximately ten to fifteen kilograms of cocaine and enter the Target parking lot located on West 225th Street near Broadway. With the cocaine remaining inside, the seller would give the vehicle to the purchaser, who would remove it, place the money inside, and return the vehicle.
The field team consisted of nine members including Agent Aceves and his supervisor, Ken Bradley. The other members were: Brian Leardo, Brian Iula, Warren Franklin, Jeff Senn, Tim Larkin, David Samilo, and another individual the name of whom Agent Aceves was unable to recall (H: 6).
While conducting surveillance during the daylight hours of April 3, 2008, Agent Aceves observed individuals, who he referred to as the sellers, arrive in a black BMW, Ohio license plate EIR1857, for the purpose of negotiating the transaction details he was advised would occur that evening (H: 8-9). Agent Aceves, however, neither identified those individuals nor provided a factual basis upon which to conclude they had engaged in negotiating the transaction.
The precise time such surveillance occurred is unknown as Agent Aceves was neither asked nor provided the time it was conducted.
That evening, at approximately 9:00 p.m., Agent Aceves, riding in an unmarked Jeep Cherokee driven by Agent Bradley, arrived near the Target parking lot on West 225th Street (H: 5-6). Upon being informed that the subjects were en route, he was advised that a silver Infinity would soon arrive followed by the black BMW he observed earlier that day. Agent Aceves testified that while the Infinity entered the parking lot, the BMW did not. Instead, he stated, "the black BMW stayed behind and parked directly in front of my supervisor at a bus stop on 225th Street . . . My supervisor [Agent Bradely] and I decided that we would make the arrest right then and there" (H: 9-10). Agent Aceves testified that his supervisor immediately activated the vehicle's lights and sirens and moved directly behind the BMW. Another vehicle from the field team moved in front of the BMW to block it in. At that moment, he observed the defendant exit the BMW from the rear door on the driver's side and move "quickly away from the vehicle." Agent Bradley then pursued and apprehended him. Upon frisking the defendant, Agent Bradley discovered a gun inside the defendant's waistband. The BMW, however, having apparently not been "pinched in" close enough, sped away (H: 10).
This court notes that Agent Aceves testified he observed another individual exit the BMW. While Agent Bradley pursued the defendant, Agent Aceves pursued that individual, Wilfredo Vega-Vasquez. Vega-Vasquez, however, was not part of this proceeding.
Regarding defendant's identity, Agent Aceves testified that he "had no idea who Mr. Perez-Lopez was, but he was in the vehicle that was to be delivering drugs," adding that "[h]ad it not sped up, we very well could have found drugs and possibly more weapons in that vehicle" (H: 13). Further conceding he possessed no knowledge or information relative to the defendant, Agent Aceves testified that at the time they observed the defendant exit the BMW, "he had not been identified" as a participant of the drug trafficking organization under investigation (H: 14).
Conclusions of Law
Initially, the People have the burden of commencing a suppression hearing by presenting evidence of probable, or reasonable, cause to show the legality of the police conduct ( People v Baldwin, 25 NY2d 66; People v Malinsky, 15 NY2d 86). Once the People have met this burden, the defendant bears the responsibility of proving any illegality of the police conduct ( People v Berrios, 28 NY2d 361; Baldwin, 25 NY2d at 66).
In sustaining their burden of establishing reasonable cause, the People must demonstrate that the attendant circumstances, coupled with defendant's behavior, justified the arresting officers' intrusion. Such intrusion, of course, must comport with the four-tier approach articulated in People v DeBour ( 40 NY2d 210, 223). DeBour's first level of intrusion permits a law enforcement officer to approach a citizen and request information provided there is an objective, credible, and articulable reason to do so, not necessarily indicative of criminality. The second level, the common-law right of inquiry, permits a momentary stop when there is a "founded suspicion that criminal activity is afoot" ( DeBour, 40 NY2d at 223). Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has been involved in criminal activity. Finally, an officer may effect a full blown arrest when there is probable cause to believe that an individual has, is or is about to commit a crime ( DeBour at 223).
Several years after DeBour, the Court of Appeals, in an attempt to assist courts in evaluating whether "an unreasonable breach of legitimate expectations of privacy" exists, stated that a court must consider "(1) the nature and scope or the severity of the interference with individual liberty, (2) the public interest served, and (3) the objective facts upon which the enforcement officer relied" ( People v Howard, 50 NY2d 583, 589; cert denied 449 US 1023). Recognizing the imprecise nature of attempting to compartmentalize any one particular set of circumstances into a specific label, Judge Barry Kamins poignantly posits whether "the courts failed to see the forest through the trees' in dealing with this subject matter" (1 Barry Kamins, New York Search and Seizure § 2.01 [Matthew Bender, Rev Ed]).
Given such inherent difficulty, Judge Kamins notes that former Second Department Presiding Justice Mollen's decision in People v Finlayson "comes as close as any case to setting forth clear and instructive guidelines" (Kamins, § 2.01). In that decision, Justice Mollen scrutinized the various tests employed by other courts and found the balancing procedure advanced by Howard most helpful in determining whether the police action in a given set of circumstances was reasonable:
People v Finlayson, 76 AD2d 670 [2d Dept]; appeal denied 51 NY2d 1011 [1980]).
The reasonableness standard contemplates and permits a flexible set of escalating police responses, provided only that they remain reasonably related in scope and intensity to the information the officer initially has, and to the information he gathers as his encounter with the citizen unfolds. The greater the specific and articulable indications of criminal activity, the greater may be the officer's intrusion upon the citizen's liberty ( Finlayson, 76 AD2d at 675).
Thus, as Judge Kamins points out, "Whatever action the officer takes — stopping a citizen, drawing a weapon, frisking a suspect, detaining a suspect for investigatory purposes — must be evaluated objectively against the realities of the confrontation to determine whether the action was reasonable" (Kamins, § 2.01). Indeed, echoing the inherent difficulty in identifying a specific rule or theory to apply in a given set of circumstances, the Court of Appeals suggested that perhaps the most appropriate test to utilize is the reasonableness of the police conduct ( People v Wheeler, 2 NY3d 370).
i. Request for Information
At the very least, DeBour makes clear that any level-one approach must, in addition to being objective and credible, be sufficiently particular to justify a request for basic information ( DeBour, 40 NY2d at 223; see also People v McIntosh, 96 NY2d 521[a person or group of people arriving in a location and coming from another location known to be a source of drugs, by itself, does not provide an objective, credible reason to ask any such person for identification]). Included in a level-one approach is an officer's right to speak with the driver of a stationary vehicle for traffic related reasons ( People v Ocasio, 85 NY2d 982; People v Bora, 83 NY2d 531; People v Bennett, 70 NY2d 891; People v Harrison, 57 NY2d 470). This is true even where an officer follows a vehicle or otherwise has it under surveillance, provided the driver voluntarily stops or parks the vehicle without knowledge of the police presence ( Harrison, 57 NY2d at 470; People v Williams, 167 AD2d 236 [1st Dept 1990]; appeal denied 77 NY2d 883). Thus, an officer may certainly approach a vehicle unlawfully parked or stopped and request to see the driver's license before ordering the driver to move the vehicle ( People v Thomas , 19 AD3d 32 [1st Dept]; appeal denied 5 NY3d 795).
Moreover, an officer must similarly have an articulable basis for requesting information from a vehicle's passenger ( Ocasio, 85 NY2d at 982). Absent additional facts specifically attributable to a passenger, such person is free to walk, even run, from a vehicle once it is stopped by the police for an alleged traffic violation ( People v Robbins, 83 NY2d 928[arresting officer lacked reasonable suspicion to pursue defendant-passenger observed grabbing his waistband fleeing from livery cab stopped for a defective brake light]; People v Perez, 149 AD2d 344 [1st Dept 1989][arresting officer lacked reasonable suspicion to pursue defendant-passenger observed holding a plastic bag leaving a vehicle stopped for missing license plates]; People v Greene, 135 AD2d 449 [1st Dept 1987]; appeal denied 70 NY2d 1006[suppression of loaded gun granted where officer grabbed defendant-passenger attempting to exit a vehicle stopped for running a red light].
Here, the District Attorney argues the agents approached the BMW because they had it "under surveillance and everything, their reasoning — — their probable cause, their approaching the vehicle to stop the vehicle was because it had pulled in and parked at a bus stop, which is illegal parking" (H: 44-45). This argument is inherently flawed because the agents did not stop the BMW, and the driver parked at a bus stop without any apparent knowledge of their presence. If the basis for their approach was indeed that the driver illegally parked at a bus stop, it would have been justified regardless of whether they had probable cause. Such a claim, however, is belied by the record.
The testimony elicited at the hearing established that Agent Aceves and his team were conducting surveillance of the Target parking lot located on West 225th Street near Broadway on the basis of information they received that a sale of ten to fifteen kilos of cocaine would occur. Specifically, they were advised that the sellers would arrive in a black BMW with the cocaine inside, drive into the parking lot, and give the vehicle to the purchaser. The purchaser would then drive away, remove the cocaine, and return the BMW to the seller with the money inside. Upon observing the BMW stop and park at a bus stop, instead of entering the parking lot as anticipated, Agent Aceves testified that the decision was made to immediately approach it. Agent Aceves neither stated, nor remotely inferred, that the basis upon which they decided to approach the BMW was that it was unlawfully parked at a bus stop.
Moreover, defense counsel correctly notes that the hearing record is devoid of any testimony or evidence of a posted sign establishing the area as either a bus stop or a no-standing zone. The record further lacks any testimony or evidence as to the length of time the officers observed the vehicle, whether the engine was running, whether the vehicle interfered with a bus entering or leaving the designated area, or whether anyone was observed exiting or entering the vehicle. Such observations are significant since they frequently assist in distinguishing between a stopped or parked vehicle and one that is merely "expeditiously receiving or discharging passengers," which is lawful ( People v Reynolds, 21 Misc 3d 1110(A), 2008 WL 4531531 [Bronx County 2008] [vehicle stopped for over two minutes where driver was twice ordered to move it violated New York City Traffic Rules justifying police approach]).
New York City Traffic Rules § 4-08(c)(3) provides that "no person shall stand or park a vehicle other than an authorized bus in its assigned bus stop when any such stop has been officially designated and appropriately posted except that the operator of a vehicle may temporarily stand therein for the purpose of expeditiously receiving and discharging passengers provided such standing does not interfere with any bus about to enter or leave such zone (emphasis supplied)."
As noted above, an officer must also have an articulable basis for requesting information from a passenger. Accordingly, even if this court were to accept the People's argument, which it does not, in no way would it have provided an articulable basis to approach and request basic information from the defendant.
ii. Common-Law Right of Inquiry Reasonable Suspicion
While valid traffic related issues are widely regarded as the less intrusive level-one inquiry ( Ocasio, 85 NY2d at 982; see People v Hollman, 79 NY2d 181), the common-law right to inquire focuses on the citizen as a suspect and whether there is "founded suspicion that criminal activity is afoot" ( DeBour, 40 NY2d at 223). Courts have described this level-two inquiry as one that closes in on a defendant as a "suspected law breaker" ( In re Antoine W., 162 AD2d 121, 122 [1st Dept 1990], aff'd 79 NY2d 888). Although this level of intrusion entitles an officer to interfere with a citizen "to the extent necessary to gain explanatory information," it may not involve a forcible stop and seizure ( DeBour, 40 NY2d at 223; see also Hollman, 79 NY2d at 181; In re Wesley M., 195 AD2d 350 [1st Dept 1993], aff'd 83 NY2d 898).
Under a level-three intrusion, however, the focus is not simply whether there is a founded suspicion of criminal activity, but whether there is reasonable suspicion that a certain individual is believed to be involved in such criminal activity ( DeBour, 40 NY2d at 223). Reasonable suspicion exists when:
evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was [or is being] committed and that such person committed it (CPL 70.10).
Thus, before a person may be stopped in a public place, a law enforcement officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime (CPL 140.50). Reasonable suspicion is that "quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand" ( People v Cantor, 36 NY2d 106, 112-113). In other words, the officer must be able to state the specific and articulable facts reasonably prompting that intrusion; mere vague or unparticularized hunches are insufficient ( United States v Cortez, 449 US 411, 417; Terry v Ohio, 392 US 1; Wong Sun v United States, 371 US 471).
Unlike the common-law right of inquiry, a level-three intrusion is indeed a forcible stop and constitutes a seizure "[w]henever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action" ( Cantor, 36 NY2d at 111; see also People v Martinez, 80 NY2d 444, 447). Noting the difficulty in distinguishing between the common-law right of inquiry and reasonable suspicion relative to seizure, Judge Kamins observes:
[T]he right of inquiry allows intensive questioning short of a seizure, and yet in many cases, the inquiry is conducted under circumstances that have all the appearances of a "seizure." . . . While New York courts have held that the exercise of the police right of inquiry does not per se constitute an actual or constructive constraint on a citizen, in practical terms, it may be difficult for an officer to conduct an inquiry without effecting at least a constructive seizure of the citizen (Kamins, § 2.03[1], [internal citations omitted] [emphasis as quoted]).
While federal courts narrowed the definition of seizure to physical restraint ( California v Hodari D., 499 US 621; United States v Swindle, 407 F3d 562 [2d Cir 2005]), New York has adopted the broader "reasonable person" test, which is "whether a reasonable person would have believed, under the circumstances, that the officer's conduct was a significant limitation on his or her freedom" ( Bora, 83 NY2d at 535; see People v Hicks, 68 NY2d 234, 240). Such a determination typically involves considering and individually weighing of all the facts and circumstances, including: whether the citizen was prevented from moving, whether lights and sirens were used, the number of officers involved, where the encounter took place, whether verbal commands were given, and their number, content and tone ( Ocasio, 85 NY2d at 982; Bora, 83 NY2d at 535). Certainly then, blocking the path of a vehicle ( In re Wesley M., 195 AD2d at 350), using turret lights, spotlights or loudspeakers ( People v May, 81 NY2d 725; see People v Sobotker, 43 NY2d 559; People v Ingle, 36 NY2d 413), and subjecting a citizen to physical contact ( People v Nelson, 57 NY2d 826; cert denied 460 US 1047; People v Raily, 309 AD2d 604 [1st Dept]; appeal denied 1 NY3d 578; People v Lilly, 211 AD2d 428 [1st Dept 1995]; People v Smith, 184 AD2d 326 [1st Dept]; appeal denied 80 NY2d 910, are forcible stops and constitute a seizure.
Here, it is axiomatic that upon deciding to approach the BMW and "make the arrest right then and there" (H: 9-10), the agents effected a forcible stop. Agent Aceves' supervisor activated his vehicle's turret lights and sirens and moved directly behind the BMW. Another agent's vehicle moved in front of the BMW to block it in. As the defendant, a passenger, exited and moved "quickly away from the vehicle," Agent Bradley pursued, physically restrained and frisked him (H: 10). Considering such factors, and weighing them in the context of these events, there is no doubt that a reasonable person under similar circumstances would have believed his freedom of movement was significantly limited.
Having unequivocally concluded that the agents' conduct constituted a seizure, the sole remaining issue is whether they possessed, at a minimum, reasonable suspicion to do so. Of course, an officer's basis for conducting an investigatory stop may emanate from personal observation or information provided by others ( Adams v Williams, 407 US 143; People v Moore, 32 NY2d 67). When such information is provided by another individual, however, it "must carry sufficient indicia of reliability to justify the forcible encounter" ( Adams, 407 US at 146-147; Moore, 32 NY2d at 70). Thus, it is incumbent on the People to make some showing of both that person's reliability and basis of knowledge ( People v Wirchansky, 41 NY2d 130; People v Earley, 76 AD2d 335 [2d Dept 1980]). Notwithstanding that this rule is most often applied when evaluating an application for a search warrant, it is no less relevant in assessing the propriety of a warrantless arrest and search ( see People v Elwell, 50 NY2d 231; People v West, 44 NY2d 656; see also Earley, 76 AD2d at 335).
Information provided by an anonymous or unidentified source then, may not be sufficiently reliable to constitute a basis for reasonable suspicion ( Florida v J.L., 529 US 266). In J.L., the Supreme Court held that anonymous information supplied to an officer required corroboration as to both the suspect's identity and criminal conduct. In adopting J.L., the New York Court of Appeals applied J.L. to an automobile stop, suppressing a quantity of marijuana because the information provided by an anonymous caller failed to include a description of the defendant or any relevant information indicating he had engaged in any criminal activity ( People v William II, 98 NY2d 93). In fact, not only was the information uncorroborated, it contradicted the officer's observation relative to the manner in which the suspect was dressed. Thus, anonymous or unattributable information will not elevate activities otherwise susceptible of an innocent interpretation without either disclosure of the circumstances from which he concluded that criminal activities occurring or some independent observations on the part of an officer ( Wirchansky, 41 NY2d at 130; see also Elwell, 50 NY2d at 231; West, 44 NY2d at 656). It is worth noting that nothing precludes the police from continuing to unobtrusively observe a suspect before approaching in anticipation of acquiring an indicia of criminality ( Howard, 50 NY2d at 583).
The District Attorney claims Agent Aceves had probable cause to seize the BMW and pursue the defendant. This assertion, however, is arguably less persuasive than their claim that the agents approached the vehicle merely because it was parked at a bus stop. Other than the unattributable information from an unidentified source that a BMW containing a quantity of cocaine would enter a parking lot and be given to the purchaser, Agent Aceves possessed no information or suspicion concerning the defendant. In fact, Agent Aceves conceded that he "had no idea" who Mr. Perez-Lopez was. Indeed, nothing he observed during either surveillance session was indicative of criminal activity. Absent disclosure of the circumstances from which Agent Aceves concluded that criminal activities were taking place, his observations of the BMW were more than susceptible to an interpretation of innocent conduct; they were consistent with it. In fact, arguably his most significant observation was incongruous with the provided information; the BMW parked without entering the parking lot.
According to the record, the decision to approach the BMW was ostensibly based on the mere conjecture that it "very well could have" contained drugs and weapons (H: 13). The failure to provide specific and articulable facts reasonably demonstrating that the defendant had committed, was committing, or was about to commit a crime, renders such speculation little more than a hunch. Clearly then, contrary to the People's claim, Agent Aceves did not possess the requisite reasonable suspicion, let alone the probable cause, to seize both the BMW and the defendant.
iii. Flight
Where an officer has reasonable suspicion, such officer is justified in pursuing a suspect who flees when approached ( People v Holmes, 81 NY2d 1056; Martinez, 80 NY2d at 444). Regarding the common-law right of inquiry, the Court of Appeals enunciated a "well-settled principle: that a defendant's flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to a reasonable suspicion, the necessary predicate for police pursuit" ( People v Sierra, 83 NY2d 928, 929 [emphasis supplied]; see also People v Pines, 99 NY2d 525; Holmes, 81 NY2d at 1056; Martinez, 80 NY2d at 444). It should be noted, however, that even with such additional suspicion, flight may be of limited value as to demonstrating consciousness of guilt, and perhaps of no value without knowledge of the circumstances underlying the motive that precipitated it ( People v Kreichman, 37 NY2d 693).
In other words, as long as there is some indicia of criminality, flight may elevate a common-law right to reasonable suspicion. It follows then, that flight following a mere request for information not otherwise predicated on an indicia of criminality is insufficient to provide reasonable suspicion ( Holmes, 81 NY2d at 1056; People v Williams, 201 AD2d 381 [1st Dept 1994]). The Court of Appeals, in People v May ( 81 NY2d 725), held that officers could not have entertained a reasonable suspicion that a crime had been or was about to be committed where they knew only that defendant and another person were sitting in a car parked on a desolate street; defendant's act of slowly moving the vehicle away as the police approached was insufficient to create a reasonable suspicion of criminality. And as noted above, absent additional facts specifically attributable to the passenger-defendant, a passenger is free to leave a vehicle once it is stopped by the police ( Robbins, 83 NY2d at 928; Perez, 149 AD2d at 344; Greene, 135 AD2d at 449).
Here, all the defendant did was exit the BMW and move "quickly away from the vehicle." There is absolutely no testimony that he was observed making a furtive movement, grabbing his waistband, or doing anything indicative of criminality. Consequently, such flight, by itself, was entirely insufficient to provide the agents with reasonable suspicion justifying their pursuit and subsequent seizure.
iv. Conclusion
Accordingly, this court finds that viewed in the light most favorable to the People ( see People v Williams, 84 NY2d 925; see also People v Contes, 60 NY2d 620), the arresting agents conducted a forcible stop of the defendant without having reasonable suspicion to do so. Consequently, the People failed to satisfy their burden of demonstrating by a preponderance of the evidence that the defendant's arrest was lawful. Defendant's motion to suppress is therefore granted in its entirety.
This constitutes the decision and order of the court.