Opinion
No. 04 Cr. 221 (LMM).
January 28, 2005
MEMORANDUM AND ORDER
1.
Defendant moves for an order suppressing (i) evidence seized from his home, Apartment 4B, 915 East 179th Street, Bronx, New York, on August 28, 2003, and (ii) statements made by him on that date. A hearing was held on August 5, 2004 and September 30, 2004.
2.
At around 7:00 A.M. on the morning of August 28, 2003, three New York City Police Department detectives of the Bronx warrant squad — Lon Panissidi, Joseph Podolsky and Evan Simon — in an unmarked van were looking for one Juan Ruben Matais; not finding him at his address, they went to 180 Mohegan Avenue, where Detective Panissidi had previously seen Matais when working with the Bronx Narcotics Unit. Detective Panissidi described the area of 180 Mohegan Avenue as a dangerous drug area. There, the detectives saw two hispanic males and one hispanic female, the latter an older woman, the males subsequently identified as Carlos Esquilin ("Carlos") and his brother, defendant Jose Esquilin ("Jose"). Detective Panissidi thought that Carlos fit the description of Matais. Detective Panissidi identified himself as a police officer and told the three persons to turn around and put their hands on the wall, for safety. He asked Carlos for identification and Carlos told the detective it was in his wallet and the detective could remove it. As Detective Panissidi was doing that, Carlos ran away. Detective Panissidi and Detective Podolsky pursued Carlos on foot, but lost him when he entered into a building, 915 East 179th Street, the door to which was locked when they reached it, preventing them from entering. The two detectives returned to the van; Detective Simon, who had not pursued Carlos but had remained with Jose and the woman, had allowed Jose and the woman to leave. The detectives canvassed the area in the van for some ten minutes when Detective Panissidi saw Jose outside of 915 East 179th Street.
Detective Panissidi's testimony was offered by the government at the August 5, 2004 session of the hearing. Defendant argues that he is entitled to suppression of the seized evidence and of his statements even if Detective Panissidi's testimony is fully credited and ignoring differences in the testimony of the only other witness, Tiffany Guzman, called by defendant. The Court's description of the facts is based on Detective Panissidi's testimony.
Detective Panissidi, not in uniform but wearing a New York City Police Department raid jacket, pulled the van up, jumped out, asked Jose where he was coming from and asked him to produce identification. Jose produced identification which Detective Panissidi gave to Detective Podolsky, who conducted a warrant check by phone. Detective Panissidi told Jose to place his hands on the police vehicle, and commenced questioning him, from behind; when the warrant check received a negative response, Jose was allowed to remove his hands from the van, and questioning continued. Detective Panissidi asked Jose who it was who had run, and Jose told him it was his brother; he asked where he (Jose) lived, and Jose told the detective he lived in Apartment 4B in 915 East 179th Street. At this point, Detective Panissidi remembered, from several years earlier, that Carlos had been involved in dealing drugs. Detective Panissidi asked, or told, Jose "I bet your brother is upstairs in your apartment hiding right now." (Transcript, Aug. 5, 2004, at 15.) Jose denied that, and offered to bring Detective Panissidi to the apartment to check. Jose and all of the detectives went to Apartment 4B. After Jose had banged on the door, asking that it be opened, for a minute or two, the door was opened by a young female hispanic, now known to be Tiffany Guzman ("Ms. Guzman").
Ms. Guzman's testimony was offered by defendant at the September 30, 2004 session of the hearing. The principal difference between the testimony of Detective Panissidi and Ms. Guzman is that the latter testified that Jose was handcuffed when he appeared at the apartment. Detective Panissidi testified that he was not.
Detective Panissidi asked Ms. Guzman "Where is he?" and she nodded with her chin towards a bedroom; Detective Panissidi, putting his head inside the apartment door, saw the bedroom door moving, and went into the bedroom where he found Carlos partially dressed, changing his clothes. Detective Panissidi frisked Carlos and his undonned clothing for weapons or contraband and asked him why he had run, to which Carlos responded that he had marijuana on him and did not want to violate his parole. Jose confirmed what Carlos had said. Then, according to Detective Panissidi, both Carlos and Jose went to a dresser, opened a drawer, removed three bags of marijuana from it, and gave them to Detective Panissidi, who instructed Detective Podolsky to arrest Carlos, who was then arrested, handcuffed, and brought to the living room. Jose followed Carlos and Detective Podolsky into the living room, pleading that Carlos be let go.
Government Exhibit E is a rough, not-to-scale, sketch of the apartment.
Remaining in the bedroom, Detective Panissidi (with a flashlight) noticed on the floor "a lot of money sprawled out everywhere of all different denominations [about $200 when counted] . . . like it was an attempt to — as if someone tossed it to try to get it under the bed" (Transcript, Aug. 5, 2004, at 24, 69), which he began to pick up. Coming near the bed, Detective Panissidi noticed, on the bed, under a sheet, something that resembled a rifle, which felt hard and like a gun, and then flipped the sheet over, and found a loaded automatic rifle. Once Detective Panissidi had pulled the sheet back and observed the weapon, the investigation "went from a civil warrant investigation to now a dangerous weapon situation and arrest." (Id. at 26.) He instructed Detective Podolsky to handcuff Jose and Ms. Guzman. After Jose's arrest, Detective Panissidi asked him whether there were other weapons in the apartment, and Jose denied that there were. Detective Panissidi then read Jose Miranda warnings. However, upon Ms. Guzman's arrest, and the explanation by Detective Panissidi that everyone in an apartment is assumed culpable for a gun found in it because they know it is there, Jose spontaneously told the detective that he took the blame for everything, that the gun and everything the detective found in the apartment was his.
Miranda v. Arizona, 384 U.S. 436 (1966).
The record is ambiguous as to whether the statements defendant seeks to suppress were made before or after defendant was given Miranda warnings (or in part before and in part after). (Cf. Transcript, Aug. 5, 2004, at 29-30 with id. at 71.)
Detective Panissidi contacted the District Attorney's office in order to obtain a search warrant, a sergeant was called and the apartment was secured, Detective Panissidi obtained and returned with the warrant, and the apartment was searched. The search resulted in the seizure of (in addition to the rifle and cash) two handguns, ammunition, drug paraphernalia and heroin. While Detective Panissidi had been out of the apartment to obtain the search warrant, one of the other detectives had found a baby, sleeping in a crib in the bedroom.
3.
The Fourth Amendment to the Constitution provides, in part, that "[t]he right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated."
"[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions." However, a seizure does occur when, "by means of physical force or show of authority," a police officer detains a person such that "a reasonable person would have believed that he was not free to leave."Brown v. City of Oneonta, 221 F.3d 329, 340 (2d Cir. 2000) (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991), andUnited States v. Hooper, 935 F.2d 484, 491 (2d Cir.), cert. denied, 502 U.S. 1015 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968), and United States v. Mendenhall, 446 U.S. 544, 554 (1980))). See also United States v. Gori, 230 F.3d 44, 49 (2d Cir. 2000). A person is not seized within the meaning of the Fourth Amendment, however, when, in response to a police assertion of authority, he does not submit thereto. California v. Hodari D., 499 U.S. 621, 626 (1991).
[T]here are three levels of interaction between agents of the government and private citizens. Consensual encounters require no justification so "`long as the police do not convey a message that compliance with their requests is required.'" Investigative detentions, the second category, require "reasonable suspicion" to believe that criminal activity has occurred or is about to occur. Arrests, requiring a showing of probable cause, comprise the third type of encounter between citizens and government agents.United States v. Tehrani, 49 F.3d 54, 88 (2d Cir. 1995) (quoting United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992) (quoting Bostick, 501 U.S. at 435); other citations omitted).
The government contends that the second stop of defendant was a permissible brief investigative detention, or "Terry stop." But it was not (nor was the first stop of defendant).
When a person has been seized by the police, the determination whether the seizure was "reasonable" and so permissible under the Fourth Amendment involves a dual inquiry: "Whether the officers' action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 19-20. Here, the stops do not pass the first prong of the inquiry.
By characterizing the second stop as a Terry stop, the government concedes that it involved a seizure. The first stop, in which defendant was required to stand with his back to the police and his hands on a wall, was obviously also a seizure as well, as was, even without a concession, the second, in which defendant was required to stand with his back to the police and his hands on the police van. See City of Oneonta, 221 F.3d at 340-41. There is no question but that defendant submitted to the police assertion of authority on both occasions.
"[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21 (footnote omitted). "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417 (1981) (citations and footnote omitted). See also United States v. Jaramillo, 25 F.3d 1146, 1150 (2d Cir. 1994).
The government has marshaled the facts it claims justify the second stop under Terry and its progeny, but those facts all relate to Carlos, not to defendant. It was Carlos whom Detective Panissidi thought might be Matais for whom an arrest warrant was outstanding, even though he stopped defendant as well, and it was Carlos that Detective Panissidi was looking for when he stopped defendant the second time. There is no evidence or any suggested inference from the evidence that could support a reasonable officer in believing that defendant, before either stop, had been, or was, or was about to be, engaged in criminal activity.
The grounds for reasonable suspicion in the case of Carlos, whatever they might be, do not support either stop of defendant. "[A]ny invasion of a person's Fourth Amendment interests must be justified at least by `specific and articulable facts' directed to the person whose interests are to be invaded." Jaramillo, 25 F.3d at 1151 (following Ybarra v. Illinois, 444 U.S. 85 (1979)).
The sole fact than an individual as to whom the officers have no reasonable and articulable factual suspicion of wrongdoing happens to be in a public place where another person possesses a weapon or contraband does not provide a basis for a Terry-type search if the possessor is a person with whom the searched individual has no known connection.Jaramillo, 25 F.3d at 1152. Here, in the words ofJaramillo,
the government failed to show that there was any reasonable articulable suspicion directed toward [defendant] in particular. The government presented no evidence that any of the [detectives] had ever seen [defendant] before or had any information about him, or that [defendant] made any suspicious statements or any suspicious or threatening gestures. Nor was there any evidence [at the inception of either of the stops] that [defendant] knew or had any connection with [Carlos].Id. at 1153. Since the second stop was not a valid Terry stop, or arrest, it was an illegal seizure. United States v. Montilla, 928 F.2d 583, 587 (2d Cir. 1991).
Both stops took place on city streets, plainly public places.
4.
After Detective Podolsky had completed a warrant check on defendant after the second stop, and, according to Detective Panissidi, after defendant was allowed to remove his hands from the police van, Detective Panissidi asked defendant who the individual who had run was, and, after defendant had identified the individual as his brother Carlos, the detective suggested that Carlos was hiding in defendant's apartment, eliciting an invitation by defendant to the detective to go there. Defendant argues that the second stop, illegal in its inception, became ade facto arrest prior to defendant's invitation to enter his apartment, so that the ensuing search and the statements made upon the discovery of the rifle must be excluded.
Since the second stop was an unlawful seizure from the outset, the Court must next consider whether that stop tainted defendant's consent to enter his apartment. Montilla, 928 F.2d at 590 n. 3.
Since the second stop was illegal from the outset, the question whether the stop evolved from a Terry stop to a de facto arrest will not be pursued. See United States v. Restrepo, 890 F. Supp. 180, 194 (E.D.N.Y. 1995).
"With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." Kyllo v. United States, 533 U.S. 27, 31 (2001) (citations omitted). One of such exceptions, of course, is "consent . . . in fact voluntarily given." Schneckloth v. Bustamonte, 412 U.S. 218, 249 (1973). However:
Under Wong Sun [v. United States, 371 U.S. 471 (1963)], an illegal stop would invalidate [a defendant's] consent to the search unless the government bears its burden of showing that the taint of the initial stop had been dissipated before the consent was given. In determining whether the taint of an illegal stop has been dissipated, we consider four factors: whether a Miranda warning was given, the temporal proximity of the stop and the consents, the presence of intervening circumstances, and the purpose and flagrancy of the illegal stop.Montilla, 928 F.2d at 590 n. 3 (citations omitted). See also Restrepo, 890 F.Supp. at 196.
In the case of a person illegally taken into custody, "Miranda warnings, alone and per se, cannot always make the act [of confession] sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession." Brown v. Illinois, 422 U.S. 590, 603 (1975). The Wong Sun factors remain relevant. Id. at 603-604.
Here, (i) no Miranda warning was given to defendant until after the consent, (ii) there was no meaningful time lapse between the stop and the claimed consent, (iii) there were no intervening circumstances, and (iv) the second stop was illegal, although probably not long enough to be labeled "flagrant." The first stop, and its results, however, are also not irrelevant to the question whether, upon the second stop, "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980). Defendant had, not many minutes earlier, been required to turn his back to the police and put his hands against a wall, he had seen his brother (not then known to be such by the police), in the same position, run, and be pursued by the police as a result; then defendant was allowed to go by a police officer; but now the same police were requiring him again to stand with his back to them and with his hands against a surface, while the police, with his identification in hand made a telephone call; although allowed to take his hands off the police van, the police gave no indication he was free to leave. In these circumstances, a reasonable man would not have understood he was free to leave, even though the police did not have reasonable suspicion — no less probable cause to believe — that defendant had been, or was, or was about to be, engaged in any criminal activity. The consent to the search of defendant's apartment was therefore tainted, and the government has not shown that the taint was dissipated prior to the search and defendant's statements.
The illegal entry into defendant's apartment led to Detective Panissidi's discovery of the rifle, which led to defendant's arrest, which led to defendant's statements, whether before or after Miranda warnings, and the initially seized evidence and the statements then supported the issuance of a warrant pursuant to which the remainder of the evidence was seized.
The Supreme Court has made it clear that "evidence seized during the unlawful search could not constitute proof against the victim of the search." Wong Sun, 371 U.S. at 484 (citation omitted). That "exclusionary prohibition extends as well to the indirect as the direct products of such invasions." Id. (citation omitted). Evidence of statements by a person subjected to an unlawful search deriving immediately from an unlawful search are similarly excluded. Id. at 484-85. Nor do Miranda warnings necessarily break the chain of causation. (See n. 9,supra.)
Here, the rapid progression from the first illegal stop of defendant to the second, to his invalid consent to a search, to the warrantless search and the discovery of the rifle, to defendant's arrest and to defendant's statements, to the warrant and the further search, is a seamless web. The government has not shown or even claimed that the police learned of the evidence sought to be suppressed from an independent source, and the connection between the invalid stops and the obtaining by the police of the challenged evidence did not "`become so attenuated as to dissipate the taint.'" Id. at 487 (quoting Nardone v. United States, 308 U.S. 338, 341 (1939)).
The evidence seized from defendant's apartment and his statements made to the police therein are suppressed.
SO ORDERED.