Opinion
2844-08.
Decided February 1, 2011.
Matthew Sotirhos, Esq., Assistant District Attorney, Bronx, New York.
Steven Goldman, Esq., Attorney for Defendant J., Bronx, New York.
Alison Lowy, Esq., The Legal Aid Society, Attorney for Defendant T., Bronx, New York.
Defendants Ramon T. and Damion J. are charged in a three count indictment with Criminal Possession of a Weapon in the Second Degree (PL § 265.03(3)), Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01(1)), and Possession of Ammunition (AC 10-131(i)(3)) in connection with the stop and search of a livery cab by the police as part of an investigation into an alleged robbery in the vicinity of Secor Avenue and Luster Street in the Bronx.
On November 26, 2008, and on December 9, 2008, Defendant T. and Defendant J., respectively, each filed an omnibus motion seeking, among other things, to have the Court: (1) inspect the Grand Jury minutes and dismiss the indictment or reduce the charges; (2) suppress any physical evidence obtained from the Defendant; (3) suppress any statements of the Defendant; and (4) prevent the People from introducing any previous criminal convictions or bad acts of the Defendant if he were to testify. Defendant J. also sought severance of his trial with co-Defendant T.
In each omnibus motion to suppress any statements and physical evidence, each Defendant contends that the police did not have lawful authority to stop and search him and thus, no basis to place him under arrest, and accordingly, contends that any statements allegedly made by Defendant and any physical evidence seized must be suppressed as tainted fruit of an illegal arrest.
The People filed no opposition to either motion until February 13, 2009, ten days after the Honorable Nicholas Iacovetta already had issued a written Decision and Order as to each motion.
On February 3, 2009, Judge Iacovetta granted, in part, and denied, in part, each Defendant's motion. Judge Iacovetta, after inspection of the Grand Jury minutes, denied each motion to dismiss or reduce the charges in the indictment, but ordered a Mapp-Huntley-Dunaway hearing to be held as to each Defendant and reserved the Sandoval hearing to the trial court. Judge Iacovetta also denied Defendant J.'s motion to sever his trial at that time as no factual or legal basis had been raised to support the application.
On December 6, 2010, this Court held the combined Mapp-Huntley-Dunaway hearing. The hearing did not conclude on that date and was continued onDecember 8 and 13, 2010 and January 4, 2011. The hearing concluded on January 4, 2011.
At the hearing, Officer Daniel MacSweeney, a police officer with the Bronx Anti-Crime Unit at the time of the events, testified on behalf of the People, as did NYPD Detective Collin Bell, Shield No. 3557, 50th Precinct. Defendants called three witnesses — Assistant District Attorney Jason Petri, Esq., NYPD Detective John Baumeister, Shield No. 471647, who had been a police officer with the Bronx Street Crime Unit at the time of the incident at issue, and Sidney Desjardin, an Investigator for Legal Aid Services. In addition, the parties stipulated at the hearing that Defendant T.'s date of birth is September 15, 1987. Transcript of Proceeding, December 8 and13, 2010-January 4, 2011 ("Tr.") at 185.
Upon consideration of the credible testimony and evidence and for the reasons set forth below, the Court finds, as an initial matter, that the Defendants have standing to assert a privacy right over the stop and search of the livery cab. The Court also finds that no reasonable suspicion existed to allow the police to stop the livery cab and that, since the stop was unlawful, Police Officer MacSweeney had no authority to order the passengers out of the vehicle or to peer inside the open back door of the stopped vehicle after the Defendants were outside the vehicle, at which time Officer MacSweeney observed the handle of the gun jutting out from under the cushion of the seat of the taxi.
Thus, any evidence that was obtained as a result of that stop is tainted fruit of an unlawful stop and must be suppressed. As there was no basis for the arrest of the Defendants other than the unlawfully obtained evidence, the arrest of Defendants was not lawful. Accordingly, as the arrest was unlawful, any statement made by either Defendant as a result of the unlawful arrest is tainted fruit of an unlawful arrest and also must be suppressed.
Findings of Fact
The Court has considered all of the testimony and evidence presented and finds incredible certain material aspects of the testimony of Officer MacSweeney. Specifically, the Court finds that, while Officer MacSweeney's testimony was credible in some respects, it was not credible as to the basis for the stop of the livery cab which resulted in Defendants' arrest.
Officer MacSweeney's Testimony of Events
Officer MacSweeney testified that, in the very early hours of July 12, 2008, at approximately 12:45 a.m., he was driving an unmarked police vehicle, accompanied by three other officers. Tr. at 7-8. Officer MacSweeney originally testified that at the time of the event at issue he was in plainclothes (Tr. at 7), but later, upon cross examination, acknowledged that actually he had been in uniform. Tr. at 51-52.
Officer MacSweeney testified that he and his fellow officers were called to the area via a radio run indicating that a robbery with a loaded gun was in progress in the area of Secor Avenue and Luster Street. Tr. at 10. Officer MacSweeney testified that the information provided in the radio run described the suspects as "three male blacks; two wearing black T-shirts, one wearing a white T-shirt" and "they were wearing hats." Tr. at 11. Officer MacSweeney also testified that they learned, via the radio run, that the suspect wearing the white T-shirt was the suspect with the handgun. Id. at 12.
Officer MacSweeney testified that he and his fellow officers in the vehicle then began canvassing the area in the vicinity of the reported robbery and that, as he was traveling southbound on Duryea Street — "south of Nuvern" — he saw a livery cab traveling northbound on Duryea Street toward Mount Vernon (Westchester) and approaching their vehicle. Tr. at 10. Officer MacSweeney testified that he and his fellow officers had been driving around the Bronx in the same vicinity — "going around the same one or two blocks" (Tr. at 110) — for about five to seven minutes without having seen anyone else when he and his fellow officers then saw Defendants. Tr. at 110-111.
In court, Officer MacSweeney identified the Defendants T. and J. as the two individuals he observed in the backseat of that vehicle and whom he later arrested. Tr. at 8, 21.
Officer MacSweeney testified that he was able to identify the vehicle as a livery cab because it had Taxi and Limousine Commission license plates, a yellow flash emergency light, and stated the name of Skylight Taxi company on a sticker affixed to the vehicle. Tr. at 13.
Officer MacSweeney testified that, initially, in order to see who was in the back seat of the livery cab, he moved his vehicle more toward the middle of Duryea, in order to force the livery cab to slow down to pass them. Tr. at 13, 46. He testified that each vehicle was traveling approximately 10 miles an hour. Id. He also testified that when he first saw the Defendants he was within ten feet of them ( id.), and, thereafter, he was right next to them. Tr. at 14.
Officer MacSweeney testified that he saw two "male blacks, one wearing a white t-shirt" in the back seat of the cab. Id. He also testified that the cab "could have been coming from" the location where the robbery was alleged to have occurred. Tr. at 15.
Although Officer MacSweeney acknowledged that neither Defendant was wearing a hat and both of them were wearing white T-shirts and there were two of them not three (Tr. at 57, 60, 89), he testified that because "the occupants in the cab matched the description over the radio," he made a U-turn with his vehicle and followed the cab. Tr. at 14, 49-50. Officer MacSweeney testified that both passengers turned around to look out the back window at him as he turned the vehicle around. Tr. at 15-16.
Officer MacSweeney testified that he then observed the cab (from the corner of Duryea and Nuvern) continue north on Duryea, pass over Edenwald and Kingsbridge Avenues and make a right turn on West 7th Street, in Mount Vernon, Westchester County. Tr. at 16. He testified that he had followed the cab for approximately five to seven blocks. Tr. at 17, 59, 63.
Officer MacSweeney testified that he did not immediately pull over the taxicab because he needed to turn around. Tr. at 63. He said that the cab, which had continued going straight, was "making distance" between itself and his vehicle and he had to catch up to it. Id.
Approximately seven blocks after he claims he first spotted the livery cab, Officer MacSweeney testified, he and his fellow officers pulled it over at the corner of West 7th Street and South 7th Avenue, in Mount Vernon, by flashing their vehicle's lights and sirens. Tr. at 17.
Officer MacSweeney testified that after the cab stopped, he and Officer Graciano approached the driver side door and Officers Scanlon and Siciliano approached the passenger side door of the cab. Tr. at 17-18 .
Officer MacSweeney testified that he asked the cab driver where they were coming from and the driver answered, "Uumm," and Officer MacSweeney immediately opened the back door on the rear driver's side of the cab. Tr. at 20.
Officer MacSweeney claimed that he opened the door because the Defendants "matched the description of the robbery that happened just a couple blocks away ( id. at 21)," and that he had intended to do a showup identification procedure to see if they were the robbery suspects. Id.
Officer MacSweeney and his fellow officers ordered both Defendants to get out of the car and the officers frisked both Defendants for weapons and put them up against the rear of the taxicab. Tr. at 23-25. Once the Defendants were out of the car, and the car doors remained open, Officer MacSweeney testified, he was able to see the handle of a gun sticking out from under the rear passenger seat where Defendant J. had been sitting. Tr. at 24-26.
Officer MacSweeney testified that he told his fellow officers, via a code word used by them, that there was a gun in the vehicle. Tr. at 28. The Defendants were then handcuffed and put in the back of the police car and Officer MacSweeney took the gun out of the car. Id.
According to Officer MacSweeney, the gun was a revolver loaded with six live rounds. Tr. at 30. Officer MacSweeney testified that after he unloaded the gun he showed it to the cab driver who was still seated in the livery cab. Tr. at 31.
Officer MacSweeney testified that they never took Defendants for a "show up" because, while still at the location where the taxicab was pulled over (but after having arrested Defendants (Tr. at 32)), the officers received a radio transmission that two suspects had been arrested in the robbery. Tr. at 32-33.
Officer MacSweeney testified that the Defendants were then taken to the 48th Precinct for arrest processing and fingerprinting. Tr. at 33. Officer MacSweeney testified that, thereafter, he brought Defendants to central booking but that central booking was full, so the Defendants were brought to the 47th Precinct. Tr. at 34.
Detective Bell's Testimony As to Defendant T.'s Statement
Detective Collin Bell testified that, at the time of the events at issue, he was a Detective at the 47th Precinct. He testified that, in the early morning of July 12, 2008, Detective Baumeister told him that a prisoner downstairs needed to be debriefed. Tr. at 138. Detective Bell then testified that, about 3:30 a.m. on the morning of July 12, 2008, he spoke with Defendant T. after reading Defendant T. his Miranda warnings from a pre-printed card. Tr. at 121. Detective Bell testified that, Defendant T., after having been read and waiving his Miranda warnings in writing by putting his initials next to each of the written warnings and signing the pre-printed card, voluntarily provided a written statement about the events of July 12, 2008. Tr. at 124-133; see People Ex. 7. The written statement indicates, in sum and substance, that Defendant T. called a cab, it came to Fenton Avenue, and that, on the way to Mount Vernon, the police pulled the cab over. Tr. at 131, 147; Ex. 7.
Detective Bell was not asked at the hearing whether he could identify in court the person from whom he took the written statement. The Court notes that Exhibit 7 is a Miranda form in which the name "RAMON T*******" is listed in handwriting next to "SUBJECT:," "9/15/87" is listed in handwriting next to "D.O.B." (the 8 in that number appears to be written over a different number), "685 E 233 STREET BRONX, NY" is listed in handwriting next to "ADDRESS" and, at the bottom of the document (after a handwritten statement) is a signature "RT*******" next to "SUBJECT SIGNATURE." Ex. 7. Detective Bell's signature as well as date and time also is listed on the form. Id.; Tr. at 122. At the hearing, the parties stipulated that Defendant T.'s birth date is September 15, 1987. Tr. at 185
Officer MacSweeney's Testimony Was Inconsistent and Incredible
The Court did not find credible Officer MacSweeney's testimony as to several material facts. Officer MacSweeney initially testified on both direct and cross examination that the location of the alleged robbery at Secor Avenue and Luster Street was "a couple of blocks away" from the intersection of Duryea and Nuvern (Tr. at 11; 44), which he testified was the location where he first observed the Defendants. Tr. at 78; 81.
Credible testimony from defense witness Mr. Desjardin, a former police officer and current Legal Aid Investigator, revealed that, in fact, there is no intersection of Secor Avenue and Luster Street and that the intersection of Duryea and Nuvern is at least seven blocks away from the general area of Luster Street and the area of Secor Avenue closest to Luster Street. Tr. at 243.
Mr. Desjardin confirmed that the distance between Luster Street and the area of Secor Avenue closest to Luster and Duryea and Nuvern is "four tenths of a mile .04." Tr. at 255.
On cross examination, Officer MacSweeney later acknowledged that this location — Duryea and Nuvern — actually was about seven blocks from the robbery location (Tr. at 43). Officer MacSweeney also testified that the location where he first observed Defendants was within 25-50 yards of the city line between Bronx and Westchester counties. Tr. at 9.
Although Officer MacSweeney testified several times that Duryea and Nuvern was the location where he first observed the Defendants, his initial testimony differed; he originally testified that both he and Defendants were on Duryea south of Nuvern when he first spotted them — he was traveling southbound and they were traveling northbound. Tr. at 9.
Officer MacSweeney's testimony about where he first spotted Defendants was further convoluted by his admission that he incorrectly listed the southwest corner of Duryea and Nuvern as the location where he arrested Defendants on the arrest report and complaint report he generated online. Tr. at 69.
Officer MacSweeney admitted that in this case and in the past when he has made arrests in Mount Vernon or Yonkers he routinely lists addresses that are not accurate (in his paperwork) as arrest locations because the computer system won't allow him to insert an address outside the Bronx (Tr. at 76) and that in this case he perpetuated that information throughout the paperwork created so that all the paperwork matched. Tr. at 81.
Even though the Court found credible Officer MacSweeney's reason for listing the southwest corner of Duryea and Nuvern as the arrest location — the computer program would not accept a Mount Vernon (or Westchester) address (Tr. at 74-76) — that very reason undermines his testimony about where he actually spotted the Defendants.
It appears that Officer MacSweeney selected the address Duryea and Nuvern for the purposes of being able to complete the online paperwork (and continued the address reference in all other paperwork) because that address was the closest Bronx address to the actual arrest location in Mount Vernon ( see Tr. at 74). The only logical conclusion, in light of Officer MacSweeney's inconsistent testimony about Defendants' initial location, is that, in order for that location (Duryea and Nuvern) to have any significance to the actual incident, Officer MacSweeney conformed his testimony about where he first saw the Defendants to match the address he identified in his paperwork.
The Court notes that, even if the Court were to believe, which it does not, that Duryea and Nuvern is where Defendants were first spotted by the police, that location is seven blocks away from the area of the purported robbery. (Tr. at 43). There is no other testimony about where the Defendants were when the police spotted them. Thus, there simply is no credible testimony that places the Defendants in close proximity to the vicinity of the purported robbery. See also Defendant Ex. A-2.
The only other evidence about the Defendants' initial location is Exhibit 7 which the People purport is Defendant T.'s statement that he "called the cab from Skyline/ the[y] [sic] came to Fenton [A]ve we left . . ." See Ex. 7. There is nothing in the record as to how close or far Fenton Avenue is from the area of the purported robbery.
Officer MacSweeney's testimony is unbelievable in other material aspects as well. Despite his testimony that he didn't pull the taxi cab over immediately because he had to catch up to the vehicle (Tr. at 63), Officer MacSweeney testified that because he was "one car length behind the vehicle" (Tr. at 16) he was able to see the occupants in the car looking back out the back window and turning to each other talking and that he observed Defendant J. "bend down at the waist" (Tr. at 16).
The Court found that testimony wholly incredible. It defies common sense to believe that Officer MacSweeney, at 12:45 a.m. or so in the wee hours of the morning, was too far away from the livery cab to pull it over until it had traveled seven blocks away from where he first spotted and passed it, but somehow was able to detect (when no interior light was on in the vehicle) the movement of lips and heads (and, apparently, the body motion of Defendant J.) of the back seat occupants of that same vehicle.
In addition, Officer MacSweeney's claim that he pulled the vehicle over because the Defendants matched the description given to him of the robbery suspects and that the cab was coming from the location where the robbery is alleged to have occurred does not withstand scrutiny. First, as noted herein, Officer MacSweeney's testimony about where he first spotted the Defendants is not believable. And, even if it were believable, the location he contends he first saw Defendants is seven blocks away from the purported robbery scene. Second, the only similarity between Defendants and the description given to Officer MacSweeney is that they are black males. According to Officer MacSweeney, the description of the suspects provided to him identified three black males, not two. Tr. at 11; 41. In addition, according to Officer MacSweeney, the suspects in the description he received all were wearing hats. Tr. at 11; 41. Defendants were not wearing hats and no hats were found. Tr. at 37; 49. Finally, two of the suspects of the purported robbery were wearing black T-shirts, one was wearing a white T-shirt. Tr. at 11; 49. Here, Defendants both were wearing white T-shirts. Tr. at 37; 49. Even though Defendants did not match most of the elements of the general description given to Officer MacSweeney, he contended that one of the bases of his suspicion was that the defendants "matched the description." Accordingly, that basis for the stop of the vehicle also is not credible.
The Court also found Officer MacSweeney's testimony about his approach of the vehicle incredible. According to Officer MacSweeney, he was wearing shorts, had his badge out and approached the cab "nonchalantly like nothing was wrong" as if "it was a regular traffic stop," (Tr. at 19), and all four officers were in plainclothes and none of them had their guns drawn. Tr. at 20. Of course, as Officer MacSweeney later admitted he had been in uniform at the time (Tr. at 51-52), the accuracy of this testimony is, at best, suspect. Moreover, it flies in the face of logic that a police officer, who believes he is approaching an armed robbery suspect whom he contends he saw bend down to secret a weapon, would not have his gun drawn in such a circumstance, or that he would "approach nonchalantly."
Conclusions of Law
A party seeking to suppress evidence on Fourth Amendment grounds must affirmatively demonstrate that he had a legitimate expectation of privacy in the area searched or a possessory or proprietary interest in the evidence seized. People v. Ingle, 36 NY2d 413, 418 (1975).
Here, Defendants contend that they have automatic standing to contest the stop and search as passengers in a livery vehicle. People v. Millan, 69 NY2d 514, 520 (1987) (passenger has standing to contest the stop of the vehicle in which he rides). The Court notes that the People do not dispute Defendants' standing to contest the stop and search of the livery cab in this matter. Id.
Defendants' presence in the livery cab provided the sole basis for the charges filed against them. See PL § 265.15(3) (statutory presumption of possession of weapon).
Although each respective Affirmation in Opposition to Defendant's Motion was filed by the People ten days after each Defendants' omnibus motion was decided ( see p. 1 of this Decision and Order, infra), each affirmation states that the People do not contest Defendant's standing.
Moreover, as the Court found incredible the testimony of Officer MacSweeney that he saw Defendants turning back and looking at him and speaking to each other and Defendant T. bending over in the vehicle, the Court finds that the People only can rely on the statutory presumption of ownership with respect to charging Defendants with possession of the gun. See People v. Cheatham ,54 AD3d 297, 300-01 (1st Dept. 2008) (People cannot avoid automatic standing rule by asserting incredible facts to establish possession). Thus, irrespective of the People's "waiver" of the issue, the Court finds that Defendants have automatic standing to challenge the stop and the search of the livery cab. Millan at 520.
See United States v. Hansen, 652 F.2d 1374, 1382 (10th Cir. 1981)(People's initial failure to challenge the issue of defendant's standing did not constitute irrevocable waiver of that challenge on appeal); see also People v. Hudson, 112 AD2d 650, 651 (3rd Dept. 1985).
The warrantless stop of an individual vehicle on a public highway by the police, absent a reasonable suspicion that its occupants have been, are, or are about to be, engaged in criminal activity, constitutes an impermissible seizure. People v. Ingle, 36 NY2d at 418; People v. Genn, 144 Misc 2d 596, 599 (Sup. Ct., New York Co. 1989).
Routine, random checks of vehicles pursuant to a nonarbitrary, systematic procedure to verify compliance with the law also is constitutionally permissible. People v. Scott, 63 NY2d 518, 523-25 (1984) (check point stops of every second, third or fourth vehicle nondiscriminatory). There is no evidence to indicate that the stop of the livery cab here was somehow pursuant to a uniform checkpoint procedure.
Here, having considered all of the evidence and testimony, the Court finds that the credible evidence fails to establish that the police had reasonable suspicion of criminal activity to justify the stop of the livery cab. In this case, the police observed neither a violation of the traffic laws nor any signs of distress on the part of the cab driver that could constitute a basis for the stop. See People v. Castro, 129 AD2d 406, 408 (1st Dept. 1987), aff'd, 70 NY2d 943 (1988).
Moreover, Officer MacSweeney's justification for the stop — the vehicle's proximity to the crime scene and Defendants' match to the description of the suspects — is incredible. There simply is no credible evidence as to where the vehicle was when the police spotted it and the testimony shows that Defendants did not match most of the aspects of the general description received by Officer MacSweeney. In addition, the Court also found incredible Officer MacSweeney's contention that he could observe the actions of the Defendants (purportedly turning around, speaking, bending) in the vehicle before the stop.
In addition, in the absence of circumstances suggesting criminal behavior, otherwise innocuous behavior, such as looking in the direction of police officers, without more, does not justify a stop. People v. Carrasquillo, 54 NY2d 248, 252 (1981); People v. McCready, 121 AD2d 897, 898 (1st Dept.), app. dismissed, 68 NY2d 981 (1986) (even when stop is lawful, head turning and reaching under seat do not entitle police to search interior of car absent some indication of criminal activity or reasonable fear of danger).
Finally, even if Officer MacSweeney's testimony about why he stopped the vehicle had been credible, at most, such reasons would give rise only to a common law right of reasonable inquiry to the extent necessary to gain explanatory information. See People v. DeBour, 40 NY2d 210, 223 (1976); People v. Milaski, 62 NY2d 464, 476-7 (1984); People v. Prado, 2005 NY Misc. Lexis 3447, *18, 234 N.Y.L.J. 40 (Sup. Ct., Bronx Co. 2005). Officer MacSweeney himself admitted that he opened the rear door and the Defendants were ordered out of the vehicle before he afforded the livery driver the opportunity to say anything other than "Uummm" in response to his inquiry as to where the vehicle had been coming from. Tr. at 20. That police action and subsequent conduct far exceeded the reasonableness of any permissible inquiry. See People v. May, 81 NY2d 725, 727 (1992) (where police could not have entertained a reasonable suspicion of criminality, stop was unlawful and evidence must be suppressed); People v. Major, 263 AD2d 360, 361 (1st Dept. 1999) (opening car door and peering inside with flashlight goes beyond common law inquiry stage).
As the police stop of the vehicle was unlawful, all of the evidence obtained as a result of that search must be suppressed. People v. Alonso, 158 AD2d 988, 988 (4th Dept. 1990). Here, there is no dispute that the gun and ammunition were found solely as a result of the stop of the vehicle. Accordingly, the motion to suppress that evidence is granted. People v. Taylor ,31 AD3d 1141, 1142 (4th Dept. 2006); People v. Harrison, 83 AD2d 965, 967 (2d Dept. 1981), aff'd, 57 NY2d 470 (1982).Moreover, as the stop of the vehicle and seizure of the evidence was unlawful, no probable cause existed to arrest the Defendants. People v. Sampson, 68 A.D3d 1455, 1457-58 (3rd Dept. 2009) (where stop was unlawful, and crack cocaine suppressed, no probable cause for arrest); People v. La Borde, 66 AD2d 803, 804 (2nd Dept. 1978) (indictment dismissed where vehicle found illegally stopped and evidence suppressed as a result).
With respect to the written statement attributed to Defendant T., the Court finds credible the testimony of Detective Bell that the written statement (Exhibit 7) obtained by him was made knowingly, intelligently and voluntarily without police coercion, and in accordance with Miranda. People v. Vasquez, 235 AD2d 322, 322 (1st Dept.), aff'd, 90 NY2d 972 (1997); People v. Soto, 253 AD2d 359, (1st Dept 1998).
Nonetheless, an issue appears to exist with respect to whether the People adequately identified Defendant T. as the person who wrote that statement and to whom Detective Bell administered the Miranda warnings and obtained the waiver of such rights. See People v. Jenkins, 85 AD2d 265, 276 (1st Dept. 1982) (when defendant is in custody People have a heavy burden to demonstrate unequivocal waiver of rights by defendant). At the hearing, Detective Bell was not asked whether the person from whom he took the statement was present in court. In addition, there is no evidence that Defendant T. is the person to whom Detective Baumeister directed Detective Bell ("prisoner needs debriefing" Tr. at 138). Thus, other than the contents of Exhibit 7, there is no evidence that indicates that Detective Bell was, in fact, interacting with Defendant T.
Moreover, even if the evidence were sufficient to connect Defendant T. to the statement, he was in police custody for a significant period of time between his arrest (approximately 1:00 a.m. (Tr. at 8)) and Detective Bell's interview (started at 3:30 a.m., completed at 4:05 a.m.). Tr. at 124; see also Ex. 7. In addition, he was at three different police stations during that time — the 48th precinct, central booking, and the 47th precinct. Officer MacSweeney testified that he first brought each Defendant to the 48th Precinct and that thereafter he brought Defendants to central booking. Tr. at 34. He then testified that Defendants were taken to the 47th Precinct. There is no evidence of what transpired at the 48th Precinct when Defendant T. was taken there for arrest processing and fingerprinting nor what occurred at central booking before Defendant T. was transported to the 47th Precinct. There also is no evidence as to the identity of the police personnel who transported Defendant T. from central booking to the 47th Precinct. There simply is no evidence whatsoever as to what, if anything, was said to Defendant T. by police personnel during that time or what he may have said to police personnel with respect to his rights. Notably, at the hearing, Detective Bell admitted that he had no knowledge of whether the suspect whom he believed to be Ramon T. had invoked his right to counsel prior to speaking with Detective Bell. Tr. at 144. See People v. Cunningham, 49 NY2d 203, 209 (1980) (once unrepresented suspect in custody invokes right to counsel, that right can't be waived without counsel present).
Accordingly, even though Detective Bell testified credibly, as an issue exists about whether Defendant T. is the person who waived Miranda, as well as a complete lack of evidence as to what, if anything, was said to and by Defendant to and by police personnel before Detective Bell's interview, the People failed to meet their heavy burden to prove that Defendant waived his Miranda rights. Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (court must indulge every reasonable presumption against the waiver of fundamental constitutional rights).,
Moreover, even if Defendant had voluntarily waived his Miranda rights, the statement still would be suppressed as the statement was obtained as a result of the illegal stop and search and arrest. People v. Baptiste, 306 AD2d 562, 566 (3d Dept. 2003), app. denied, 1 NY3d 594 (2004); People v. Sampson ,68 AD3d 1455, 1458 (3d Dept. 2009), app. denied, 1 NY3d 594 (2004); Dunaway v. New York, 442 U.S. 200, 216-218 (1979).
The Court notes that there is no evidence in this case that would indicate that the recovered gun (and ammunition) or Defendant T.'s written statement inevitably would have been discovered. People v. Turriago, 90 NY2d 77, 86 (1997) (in applying the inevitable discovery exception, prosecution must demonstrate "very high degree of probability" that normal police procedures would have uncovered challenged evidence independent of the tainted source), quoting People v. Payton, 45 NY2d 300, 313, (1978), rev'd on other grounds, 445 U.S. 573 (1980), on remand, 51 NY2d 169 (1980). But for the unlawful stop and search of the vehicle (and Defendants' subsequent arrest for possession of the gun and ammunition), there was no probable cause to arrest Defendants or place them in custody. If Defendant T. had not been in custody, such written statement would not have been obtained.
For all of the reasons set forth above, the Court grants Defendants' motions to suppress the physical evidence — gun and ammunition — as well as Defendant T.'s motion to suppress the written statement.
The following papers also were considered by the Court in deciding the motion: Notice of Motion, filed on or about December 9, 2008, and Affirmation of Victor Schurr, Esq., attorney for Defendant Damion J., in Support of Motion; Affirmation in Opposition to Defendant J.'s Motion, by Matthew Sotirhos, Assistant District Attorney, dated February 13, 2009; Notice of Motion, filed on or about November 26, 2008, and Affirmation of Allison K. Lowy, Esq., attorney for Defendant Ramon T., in Support of Motion; Affirmation in Opposition to Defendant T.'s Motion, by Matthew Sotirhos, Assistant District Attorney, dated February 13, 2009.
This constitutes the Decision and Order of this Court.