Opinion
4270/10.
Decided February 3, 2011.
This case addresses the level of intrusion to which the police may subject an individual when they see that individual briefly touch hands with a drug dealer moments after the dealer sold drugs to an unrelated individual.
The defendant, Milo Tyler, has been indicted for criminal possession of a controlled substance in the third degree and related crimes. He moves to suppress contraband and currency recovered from him, as well as statements he made to the police, all in connection with his arrest on August 25, 2010. At a combined Mapp/Dunaway/Huntley hearing, the People presented the testimony of Police Officer Brian Rao and Sergeant Gregory Abbott. Based on that testimony, which on critical issues was lacking in consistency and clarity, the court makes the following findings of fact.
I.
On the night of August 25, 2010, Officer Brian Rao, an experienced narcotics officer, was one of the "apprehending officers" in a Street Narcotics Enforcement Unit deployed in the vicinity of Sheridan Square in Manhattan, a drug-prone area in which Officer Rao had previously made numerous drug arrests. At about 12:40 a.m., Rao, who was on foot in plainclothes, heard a radio transmission from Officer Kopystianskyj relaying the fact of a "done deal" in front of 72 Christopher Street. "Done deal" was code language meaning that Kopystianskyj had just observed a drug transaction, and was calling for the apprehending officers to arrest both the drug buyer and seller. The radio report continued with a brief description of the two suspects. Officer Rao responded immediately, and on his way to the location of the reported sale saw that two other members of the team already had the suspected buyer in custody. He then heard a transmission from those officers that they had recovered crack cocaine from the buyer.
When Officer Rao was approximately 30 feet away from 72 Christopher Street he saw a person, Christian Rondan, fitting the description of the seller. He also saw another man, defendant Milo Tyler, walk up to Rondan and either shake hands or bump fists with him before proceeding west on Christopher Street. Rao did not see an exchange of anything between the two. But he testified that based on his general experience as a police officer, he believed he had witnessed an exchange of some kind. Although he did not testify that there was anything unusual about the handshake or fist bump itself, coming so soon after Rondan had sold drugs to another individual, it "just looked odd" to him. Rao then approached Rondan, immediately arrested him and recovered 22 pieces of crack cocaine from his hand. Significantly, Rao could not say whether the drugs were recovered from the same hand defendant had touched moments before. After securing Rondan, Rao immediately transmitted a description of defendant to the other officers on the team. He then left Rondan with another officer, and jogged west on Christopher Street in search of defendant.
Officer Rao caught up to defendant about a block away near the corner of Christopher and Bleecker Streets, and confronted him by saying, "Police. Don't move." He testified that another member of the team, Sergeant Gregory Abbott, arrived at the scene a few seconds later and assisted in defendant's detention. Sergeant Abbott, however, testified to a slightly different recollection of the stop. He testified that he was in uniform walking south on Bleecker Street toward Christopher Street when he received Rao's radio transmission with a description of a person to stop. He saw defendant near the corner of Christopher and Bleecker Streets and stopped him by walking up to him and saying, "Hey, man, can I talk to you for a second." Abbott remembers Rao arriving at the scene few seconds after he did and has no recollection of Rao ordering defendant to stop. Although the court credits Rao's recollection more than Abbott's, it appears they both have been involved in so many drug arrests that there is a basic inability to remember critical details of this arrest. Both officers agree, however, that when they converged on defendant, he dropped an umbrella he was carrying and calmly placed his hands against a nearby wall. Rao also believes that Abbott may have spread defendant's legs apart as he was against the wall to prevent him from fleeing the scene. A third officer then joined them on the scene within thirty seconds.
While defendant was against the wall surrounded by the three officers, Rao told defendant he had just observed him "do something back there," and said, "I'll make you a deal. If you give me what I think you just bought, I'll try to get you a desk appearance ticket tonight. If I search and find it, you know, I have to send you to Central Booking." Rao testified that he would often provide this option before searching a suspect because searching individuals carried the risk of being pricked by a needle, knife or other sharp object. Defendant replied that he had marijuana in his underwear. Rao initially testified that defendant was under arrest and in handcuffs when he made the statement, but later said he did not recall whether defendant was in handcuffs at the time of the statement. He made it plain, however, that, at that time of the "questioning" defendant was in custody and not free to leave. Although Sergeant Abbott agreed that defendant was not free to leave at any point during the encounter, he testified that defendant was not handcuffed until after he admitted having marijuana in his underwear. None of the officers searched defendant at the scene, electing instead to transport him to the station house.
At the station house, the police searched defendant and recovered marijuana from his underwear and additional drugs from a cut-out in his jeans, including "twists" of cocaine, crack cocaine and ecstasy pills, as well as $339 in currency.
II.
In the seminal case of People v. DeBour, 40 NY2d 210 (1976), the Court of Appeals established a four-part analysis for evaluating the propriety of police conduct in street encounters with citizens. Each progressive level in the analysis permits a greater level of police intrusion upon the citizen's liberty. The initial level, which involves only the minimal intrusion necessary for the police to request information, must be based on an "objective credible reason" for approaching the person, but the reason need not be suggestive of any criminality on the part of the citizen. The next higher level allows a police officer "to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure." This level of intrusion, often called the common-law right of inquiry, requires that the police have a "founded suspicion that criminal activity is afoot." It permits the police to ask questions that would lead the person to believe that he or she is suspected of committing a criminal act. See People v. Hollman, 79 NY2d 181, 185 (1992). Next, where the police have a "reasonable suspicion" that the person has committed, is committing or is about to commit a crime, they may forcibly stop and detain a suspect to gain explanatory information. Under section 140.50(1) of the Criminal Procedure Law, the police are permitted to demand of the person "his name, address and an explanation of his conduct." See DeBour, 40 NY2d at 223. In connection with the forcible detention, the police may also pat-down the suspect for weapons if they reasonably suspect they are in danger of physical injury. DeBour, 40 NY2d at 223 (citing CPL 140.50(3)). Finally, the police may arrest a defendant and take him or her into custody when they have probable cause that the defendant is committing, has committed or is about to commit a crime. DeBour, 40 NY2d at 223; CPL 140.10.
In the present case, the People argue that Officer Rao had probable cause to arrest defendant for purchasing drugs from Rondan based on defendant's brief handshake or "fist-bump" with Rondan. Despite the seemingly innocuous nature of that encounter, the People claim that Rondan's sale of drugs to an unrelated person a few minutes earlier and his possession of drugs at arrest provided the police with adequate reason to immediately place defendant in custody and search him for contraband.
In People v. McRay, 51 NY2d 594 (1980), the Court of Appeals held that an inference of probable cause arises when a trained and experienced police officer witnesses an exchange of glassine envelopes for money in a drug-prone location. The Court held that such an exchange is the "hallmark" of a drug sale. Subsequent cases applied similar logic to extend McRay to exchanges involving small vials for money. See, e.g., People v. Ramos, 168 AD2d 359 (1st Dep't 1990); People v. Goggans, 155 AD2d 689 (2d Dep't 1989); People v. Wilson, 147 AD2d 602 (2d Dep't 1989). More recently, the Court has held the police may arrest a suspect even when they are unable to observe the precise packaging of the objects transferred, so long as there exist sufficient other indicia of a drug sale. People v. Jones, 90 NY2d 835 (1997).
The People rely on this principle in arguing that Officer Rao acted on the basis of probable cause even though he failed to witness an exchange. The facts of Jones, however, stand in stark contrast to the facts known to Rao when he confronted defendant. In Jones, an officer experienced in narcotics transactions saw the defendant talking with an unidentified woman in an area noted for drug activity. He saw the woman hand the defendant money in exchange for an object the officer could not see. Defendant then walked to a nearby construction site, took a plastic bag from his person and secreted it in a cement block. On these facts, the Court held that the officer was justified in believing he had just witnessed a drug sale despite the officer being unable to identify the objects actually exchanged. The Court held that a combination of factors supported the inference that the officer had just witnessed a drug sale, and thus provided him with probable cause to arrest.
Here, Officer Rao did not see any exchange between defendant and Rondan, and the totality of the circumstances surrounding Rao's brief observation did not support probable cause to believe that an exchange took place. At most, Rao observed defendant briefly touch hands with Christian Rondan on a busy street in Greenwich Village. Rao saw no exchange of items, furtive behavior or any other indicia of a drug transaction. He saw no currency pass between the two, and he articulated no basis for believing that there was even an opportunity for a bilateral exchange. Cf. People v. Tinnin , 36 AD3d 457 (1st Dep't 2007); People v. Rios , 34 AD3d 375 (1st Dep't 2006); People v. Sylvain , 33 AD3d 330 (1st Dep't 2006); People v. Schlaich, 218 AD2d 398 (1st Dep't 1996). Moreover, the full interaction lasted only a moment and was entirely consistent with a completely innocent encounter of two people who know each other exchanging a brief greeting as they passed on the street. Although Rao testified that he thought an exchange took place based on his experience as a narcotics officer, it is clear that the only reason he called for his team to stop defendant was because he knew that Rondan had engaged in a drug transaction with an unrelated individual a few minutes earlier, and that Rondan had drugs in one of his hands when arrested. He failed to articulate any basis — either from his experience as a narcotics officer or otherwise — to support his belief that the brief touching constituted an exchange of drugs or money. Significantly, Rao's choice of language at the hearing is telling. He said that he was suspicious of defendant because his contact with Rondan "just looked odd" knowing that Rondan had just sold drugs to someone else. It is well settled, however, that the mere presence of an individual at a scene of criminal activity, without more, does not establish probable cause to arrest. See, e.g., People v. Mothersell , 14 NY3d 358 (2010); People v. Leveridge, 204 AD2d 246 (1st Dep't 1994); People v. Terrell, 185 AD2d 906 (2nd Dep't 1992); People v. Trapier, 47 AD2d 481 (1st Dep't 1975); see also Ybarra v. Illinois, 444 U.S. 85, 91 (1979). Moreover, "the notion that behavior which is susceptible to innocent as well as culpable interpretation, will constitute probable cause" has long been rejected by the Court of Appeals. DeBour, 40 NY2d, at 216.
This does not mean that Rao was without authority to investigate his suspicion that defendant was somehow involved in narcotics activity with Rondan. Although he saw no exchange, and may well have not even witnessed an opportunity for an exchange, he was aware that Rondan had just sold drugs to another individual. He also had seized drugs from Rondan immediately after defendant had come into contact with him. Indeed, the People alternatively argue that Rao had "reasonable suspicion that defendant was committing a crime or, at the least, a "founded suspicion" that he was involved in criminality. Thus, they argue, the police could have forcibly stopped, or at the least, temporarily detained, defendant to seek further information from him, including asking questions accusatory in nature such as whether he possessed any contraband. See People v. Hollman, supra.
It is clear, however, that the police in this case never sought to exercise whatever right they may have had to acquire explanatory information from defendant. Even if the police had "reasonable suspicion" so that they could forcibly stop and detain defendant, or even if they had a founded suspicion that he was involved in criminality, they never tried to obtain from him an explanation of his conduct. Although it may be a close question whether defendant was seized at the moment Rao initially confronted him and said, "Police. Don't move," see, e.g., People v. Bora, 83 NY2d 531, 535 (1994); People v. Townes, 41 NY2d 97 (1976), defendant clearly had been seized and arrested by the time he admitted to Rao that he was in possession of marijuana. By then, he was surrounded by Rao and two other officers, had his hands against the wall and had his feet apart in a spread position. Moreover, while defendant was being detained under these circumstances, Rao immediately made plain to defendant that he was under arrest. He did not ask defendant to explain his brief encounter with Rondan or even if he had drugs in his possession. Instead, he proposed a deal: "If you give me what I think you just bought, I'll try to get you a desk appearance ticket tonight. If I search and find it, you know, I have to send you to Central Booking." Thus, Rao was not seeking an explanation of defendant's conduct. He was simply affording defendant a choice of how he preferred to be arrested and processed. Rao may have been entirely truthful when telling defendant that the police would process the arrest differently if defendant admitted to possessing contraband. Yet, his proposal was not intended to clarify the situation, see, e.g., People v. Huffman, 41 NY2d 29 (1976); People v. Reyes , 77 AD3d 509 (1st Dep't 2010), or to gain explanatory information about whether he had just purchased drugs from Rondan. See, e.g., People v. Hollman, supra, 79 NY2d at 181. His proposed "deal" was a prelude to his search of defendant incident to defendant's arrest, and was, as Rao plainly acknowledged in his hearing testimony, part of his normal procedure when he arrests buyers in drug sale cases. Without question, a reasonable person in this situation, innocent of any crime, would have thought that he or she was under arrest. People v. Hicks, 68 NY2d 234, 240 (1986) (citing People v. Yukl, 25 NY2d 585, 589 (1969)); People v. Anderson, 218 AD2d 533 (1st Dep't 1995).
Thus, although the police were permitted to approach defendant to gain explanatory information, and perhaps even to forcibly stop him before doing so, what they instead proceeded to do was arrest defendant, without probable cause that he had committed a crime. Therefore, defendant's admission following his arrest — that he had marijuana in his waistband — must be suppressed. See Dunaway v. New York, 442 U.S. 200 (1979). Similarly, the drugs and money recovered from him at the station house must also be suppressed as the fruit of an unlawful arrest. See Wong Sun v. United States, 371 U.S. 471 (1963); People v. Cantor, 36 NY2d 106 (1975). Dunaway v. New York, 442 U.S. 200 (1979).
For all of the above reasons, defendant's motion to suppress the statement he made to police as well as the contraband and currency recovered from him is granted.
This opinion shall constitute the decision and order of the court.