Opinion
47866/05.
Decided July 2, 2007.
HONORABLE ROBERT T. JOHNSON, District Attorney, Bronx County, By: DENISE KODJO, ESQ., Assistant District Attorney, for the People of the State of New York.
JOEY JACKSON, ESQ., for Armando Alvarez.
Armando Alvarez, the within Defendant, is charged with Bribery in the Third Degree (Penal Law § 200.00), Obstructing Governmental Administration in the Second Degree (Penal Law § 195.05) and Possession of Gambling Records in the Second Degree (Penal Law § 225.15). He now moves to suppress evidence seized from the car in which he and a passenger were riding on September 14, 2005. Defendant also moves to suppress certain oral statements made by him at the time. At a pre-trial Mapp/Dunaway/Huntley (see Mapp v. Ohio, 367 U.S. 643, [1961]; Dunaway v. New York, 442 U.S. 200; People v. Huntley, 15 NY2d 72) hearing, the People called two witnesses: New York Police Sergeant Anthony Antoniou and Officer Brendan Rafter, each a veteran of the force. The Defendant was the only witness testifying for the defense.
On the aforesaid date, at approximately 11:05 p.m., Sergeant Antoniou and Officer Rafter, along with Officer Willie Cancel, while assigned to the Anti-Crime Unit, were patrolling in plain clothes in an unmarked patrol car. According to Sergeant Antoniou's testimony, his vehicle was parked at a red light, traveling westbound, at the corner of East Tremont and Jerome Avenues in Bronx County (Tr. 9). Officer Rafter testified that he observed Defendant driving a car and turning onto Jerome Avenue, heading southbound, and changing from the right to the left lane without signaling (Tr. 118). Sergeant Antoniou stated that upon observing the allegedly unlawful lane change, the officers activated the vehicle's siren and lights, pulling Defendant's car over (Tr. 11). Defendant complied within a second or two of the siren and lights being activated, into the right lane of Jerome Avenue (Tr. 41).
The three officers approached Defendant's car, with its passenger seated in the front. Sergeant Antoniou and Officer Cancel approached the drivers' side, where they observed Defendant in the driver's seat, while Officer Rafter stayed near the back of Defendant's vehicle (Tr. 40). Sergeant Antoniou had his police shield displayed (Tr. 44). He asked Defendant for his license, registration and insurance papers (Tr. 42). He also asked Defendant if he had any "guns or drugs or dead bodies or anything like that in the car, and he said, No, no."(Tr. 12). The sergeant observed Defendant to be nervous, to have shaking hands and to be speaking in broken English (Tr. 12-13). He asked Defendant for the passenger's name, and Defendant provided this information after what he estimates to be "ten seconds" (Tr. 13). At this point, according to Sergeant Antoniou, he asked the parties to step out of the car. Specifically, he testified, "as soon as I saw him babbling and as soon as I saw he was very nervous, couple, maybe a second or two after I saw that I asked him to step out" (Tr. 43). This was, he said, in an effort to be have Officer Cancel, a Spanish-speaking officer, better communicate with Defendant (Tr. 12). Less than a minute elapsed from the time the officers pulled Defendant over to the time they ordered him out of his vehicle (Tr. 44).
On cross-examination, Sergeant Antoniou testified that Defendant made no threatening gestures toward him, nor did he make furtive movements which would have caused him to fear for his own safety (Tr. 45). The sergeant acknowledged that is its not unusual for someone to be nervous and exhibit signs of nervousness upon being pulled over by a police officer(Tr. 45). He stated "No" to being asked, "In any way as you were standing there, did you feel that you were in danger?" (Tr. 48).
With respect to what he observed, Sergeant Antoniou testified that prior to asking Defendant to step out of the car and conducting his search, he did not see any drugs or gambling slips visible in the car (Tr. 52). Nor did he smell any alcohol emanating from the Defendant (Id).
With respect to checking to ascertain if Defendant's car was registered, insured or whether his license was valid, Sergeant Antoniou was unable to recall if he checked this information on the patrol car's computer system (Tr. 72). Further, he was unable to recollect whether Defendant was even able to produce these documents (Id.), but he did remember that the only reason he asked Defendant to step out of the car was to better communicate with him in Spanish, not because Defendant failed to provide these documents (Tr. 73). He testified that, to his knowledge, there was no reason why Officer Cancel could not speak with Defendant in Spanish at the driver's side window without the necessity of removing him from the vehicle (Tr. 74).
Sergeant Antoniou asked Defendant in English if he could look inside the car, and later, he believed, Officer Cancel likewise asked him in Spanish (Tr. 53). According to his testimony, Defendant waived his hands and stated, "I got nothing. Look, look."(Tr. 14). Without asking further questions (Tr. 55), Sergeant Antoniou immediately proceeded to search Defendant's vehicle while the other two offices remained with both occupants at the rear (Tr. 15). Sergeant Antoniou at no time advised Defendant of the consequences, if any, of searching his car or advised him of his legal rights (Tr. 55).
Sergeant Antoniou, while searching the front of the vehicle, recovered from the ashtray a piece of paper which had some sports teams' names and numbers written on it, as well as $5,800 from the car's arm rest (Tr. 15). At this point, Sergeant Antoniou removed the ignition keys and went to the back of the car, opened the trunk, and conducted an additional search of Defendant's vehicle (Id.). From the trunk, he removed a brown paper bag, which had a covering on it. Upon removing the cover and searching the bag, Sergeant Antoniou removed $85,500 in one thousand dollar bundles (Tr. 16). According to Sergeant Antoniou' testimony, upon showing Defendant the money, Defendant indicated the officers could take the money, stating, "Take it, take it"(Tr. 18). Sergeant Antoniou also testified, upon being asked what he was going to do before Defendant allegedly offered the money, "Nothing, release him. We couldn't do anything with him. There was nothing — it's not illegal to have money" (Tr. 18).
On cross-examination, Sergeant Antoniou testified that nowhere in the police paper work does it indicate that Defendant was driving recklessly, speeding, moving quickly, but only indicated that Defendant changed lanes without signaling (Tr. 30).
With respect to Officer Rafter's testimony, he was unable to recall most relevant details related to the incident. He recalled observing Defendant changing lanes on Jerome Avenue without signaling (Tr. 188). He further testified than after they had put the siren and lights on and pulled Defendant over, it was "almost immediate[ly]" that Sergeant Antoniou ordered Defendant out from his car (Tr. 132). He also observed the sergeant searching the vehicle and recovering money from the front seat and the trunk (Tr 132). Additionally, at the scene, that Defendant stated variously that the money was proceeds from the Dominican lottery and/or liquidation of a business venture (Tr. 124). There was a total of $91,300 in Defendant's car (Tr. 159).
Defendant's testimony was at variance with Sergeant Antoniou's. Mr. Alvarez testified that on the date in question, he was driving his 2000 Mitsubishi Gallant, which had New Jersey license plates. He was driving westbound on Burnside Avenue, With respect to the manner of his speed, he proffered that he was driving approximately twenty miles per hour. He further testified that he made a left lane onto Jerome Avenue, heading south, and was immediately pulled over onto the right side of the street (Tr. 148-149). He testified that Sergeant Antoniou asked for his license, registration and insurance papers, which was immediately provided (Tr. 151). According to Defendant, Sergeant Antoniou did not ask Defendant any other questions, including whether there was any contraband in the car (Tr. 155), but merely threw Defendant's papers back at him and ordered him out of the vehicle (Tr. 152). Additionally, that Sergeant Antoniou at no point asked Defendant for permission or consent to search his vehicle (Tr. 156). Sergeant Antoniou began searching his car, and upon locating the $5,800, he said "Bingo" (Tr. 155). He then searched the trunk, and removed $85,500 (Tr. 157).
Discussion
Several factors diminish the officers' credibility here: (a) the lack of detail about their observations of Defendant's manner of driving, which allegedly prompted them to pull Defendant over; and (b) Sergeant Antoniou's observations of Defendant warranting a decision to search the car.
Sergeant Antoniou testified that Defendant was "speeding" (Tr. 10) and "driving pretty reckless" (Tr. 22). He, however, could not explain why these several observations, which allegedly prompted the stop were missing from the "Details" section in both the arrest report and the complaint report (Tr. 30-33). Finally, Sergeant Antoniou was unable to recall whether he even checked Defendant's information in the computer system (Tr. 72) or whether he issued a summons for these alleged offenses (Tr.90).
With respect to Defendant's behavior upon being pulled over, Sergeant Antoniou stated that Defendant was "overly nervous . . . fumbled around for words . . . [and] his hands were shaking. . . ." (Tr. 12). Additionally, Sergeant Antoniou thought that the fact that the passenger was younger than Defendant, and that Defendant waited several seconds before providing his name, may have indicated a drug deal (Tr. 101). Sergeant Antoniou further testified, on cross examination, that he did not consider whether this individual may have, in fact, been related to Defendant by way of being a younger brother or a cousin (Tr. 102).
In effect, Defendant's behavior consisted of innocuous movements, nervous conversation in broken English and total compliance with the directions of the police. Additionally, Defendant was, indeed, able to give the passenger's name after several seconds. Significantly, Sergeant Antoniou testified that "I saw that he didn't speak very good English, so I asked him to step out of the car. . . ." (Tr. 12). At no time did Sergeant Antoniou testify that Defendant made any furtive movements, that he acted in a threatening manner or that he or any other officer feared for physical safety. It is difficult for the Court to suspect these extant circumstances as equating with placing seasoned officers in fear of physical danger, or having caused them to suspect that Defendant was in possession of any weapons or other contraband. By contrast, the Court finds that Mr. Alvarez, a New Jersey resident, appeared forthright, displaying a clear, consistent and detailed recollection of the events of the night in question different from the two testifying officers. Defendant maintained that he was not speeding during his trip, that he was driving eastbound on Burnside Avenue, and made a left turn onto Jerome Avenue, heading south, without making an illegal lane change.
Conclusions of Law
A. Burden of Proof
Where Fourth Amendment rights are at issue, the People have the burden of going forward to establish the legality of the police conduct in the first instance. (see Dunaway v. New York, 442 U.S 200, 207; see also People v. Berrios, 28 NY2d 361. To sustain this burden, the testimony offered by the People must be credible (In re Jay R., 259 AD2d 436 [1st Dept. 1999]), and not tailored to nullify constitutional objections ( citing People v. Carmona, 233 AD2d 142 [1st Dept. 1996]; see also People v. Garafolo, 44 AD2d 86 [2nd Dept. 1974]). Once the People satisfy their initial burden of going forward, then the ultimate burden of persuasion shifts to a defendant, who must demonstrate the illegality of the police conduct by a preponderance of the credible evidence. (see Berrios, supra).
B. Legality of the Stop
In People v. DeBour, 40 NY2d 210 (1976), the Court of Appeals set forth the guidelines for evaluating police contact with civilians. Before an officer may request information from an individual, he must have an "objective, credible reason" to approach. "The common-law right of inquiry, a wholly separate level of contact is activated by a founded suspicion that criminal activity is afoot and permits a greater intrusion." (see DeBour supra at 223). In order to stop and detain a person, an officer must have "reasonable suspicion that such person has committed, is committing or is about to commit a crime." (People v. Grant, 164 AD2d 170, 172 (1st Dept. 1990), appeal granted 77 NY2d 846 (1991), lv. denied 77 NY2d 926 (1991). Assuming this predicate is satisfied, if the officer reasonably suspects that he is in danger of physical injury, he has the right to frisk an individual for weapons. (see Criminal Procedure Law § 140.50(3); People v. Russ, 61 NY2d 693 (1984).
The stop of a car traveling on a public roadway is a limited seizure akin to that of the forcible stop of a pedestrian (see People v. Spencer, 84 NY2d 749, [1995], cert. denied, New York v. Spencer, 516 U.S. 905 (1995), cf. People v. DeBour, 40 NY2d 210). To be reasonable, a suspicion must be based on specific, objective facts and not the product of whim, discretion or hunches (id.; see also People v. Cantor, 36 NY2d 106 [(1975]); and see People v. Sobotker, 43 NY2d 559). A car stop will be upheld, irrespective of either the primary motivation of the officer or a determination of what a reasonable traffic officer would have done under the circumstances, provided the officer has probable cause to believe that the driver has committed a traffic violation. (see Whren v. United States, 517 U.S 806; see also, People v. Wright, 98 NY2d 657, appealed by 297 AD2d 875 [NY App. Div. 3rd Dep't 2002]). This requires specific, articulable facts which, together with the rational inferences arising therefrom, reasonably warrant the intrusion. (People v. Ingle, 36 NY2d 413). While police officers are authorized to stop a motor vehicle where a traffic offense has been committed in their presence, it is impermissible to use a stop as a mere pretext to facilitate other unrelated purposes (see People v. Smith, 181 AD2d 802 (2nd Dept. 1992); People v. Letts, 180 AD2d 931 (3rd Dept. 1992), appeal dismissed, 81 NY2d 833 (1993). In People v. Barreras ( 253 AD2d 369 [1st Dept 1998]), the Court held that once a traffic summons had been issued after a vehicle stop, and without more information justifying a founded suspicion that criminal activity was afoot, the police were not authorized to detain the defendant further.
Moreover, assuming reasonable suspicion exists, once safety concerns are addressed by patting down or securing the detainee and his or her grabable area, police are not at liberty to search a car pursuant to the "automobile exception" to the warrant requirement unless there is justification for that higher level of intrusion, that is, both probable cause to arrest and probable cause, or at least more than a reasonable suspicion to believe that the car contains either contraband or evidence of the crime for which the detainee has been arrested (see People v. Torres, 74 NY2d 224, [1989]; and see People v. Carvey, 89 NY2d 707; cf. People v. Ellis, 62 NY2d 393; People v. Langen, 60 NY2d 170; People v. Belton, 55 NY2d 49). It is well-established that a police officer may not stop a vehicle merely on a hunch that an investigation might prove fruitful. Police officers may stop a vehicle to investigate a crime only where they have a reasonable suspicion that the car's occupants have been or are about to be involved in criminal activity. (see People v. May, 81 NY2d 725; This standard requires a quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the same circumstances to believe that criminal activity is at hand. (People v. Banks, 85 NY2d 558); People v. Sobotker, 43 N. Y.2d 559 {1978]). The police may also stop a car upon reasonable suspicion that a violation of the Vehicle and Traffic Law has occurred. (People v. Ingle, supra, at 414; see also, Delaware v. Prouse, 440 U.S 648, 663).
With respect to officers observing a defendant acting nervously, the courts have consistently held that such behavior in itself is insufficient to warrant further intrusion. In People v. Berberena ( 264 AD2d 670 [1st Dept 1999]), officers made a traffic stop and then noted allegedly nervous behavior of a minimal and equivocal nature which the Court, citing People v. Banks, supra, found insufficient to justify a clearly accusatory inquiry and request to search the trunk from which a weapon was recovered. As a matter of law, a defendant's nervousness alone does not provide a basis for reasonable suspicion of criminality (see Banks, supra). While law enforcement may direct a motorist, stopped for a traffic infraction, to exit the detained vehicle (see People v. Robinson, 74 NY2d 773, cert. denied 493 U.S. 966) and may also demand the motorist's name, address and an explanation of his/her conduct (CPL § 140.50), absent probable cause to believe criminality is afoot further detention of a motorist violates the motorist's constitutional rights (People v. Banks, supra). A shotgun which was seized from the interior of defendant's vehicle was suppressible because the troopers recovered said gun after they detained the defendant without any evidence that he was involved in any criminal activity (see People v. Milaski, 62 NY2d 147 ). Again, the same court stated that nervousness and inconsistent statements did not provide an indication of criminality. Although holding that while the initial stop was proper, a weapon recovered from inside the defendant's vehicle was suppressible because no facts supported reasonable suspicious by the police that the defendant committed or was about to commit a crime (see People v. Antelmi, 196 AD2d 658 [2nd Dept. 1993]). After a valid traffic stop, where a defendant made a hand gesture as if the place an object on the back seat, this was found insufficient to justify a search his vehicle (see People v. Chann, 221 AD2d 155). Additionally, the Court noted, since the defendant was ordered out of his vehicle, there was no threat to police safety to warrant additional search of the car.
C. Consent to Search
Finally, it appears, based on the within Defendant's testimony, that he did not give the officers consent to search his vehicle. Even if Defendant stated, as Sergeant Antoniou testified, "Look, look" (Tr. 14) with an open hand upon being asked if he had any contraband in the vehicle, such an assertion could hardly be construed as consent to search. The officers' alleged suspicion of possible criminal activity appears disingenuous and tailored to meet constitutional objections, further diminishing their credibility.
"Before a search can be described as consensual, there must be a "careful scrutiny of all the surrounding circumstances" ( Schneckloth v. Bustamonte, 412 U.S. 218, 226). In light of the fact that Defendant provided all necessary paperwork and answered Sergeant Antoniou's question about the passenger, asking Defendant to step out of his car was an obvious pretext to conduct a general investigation and search. Upon reviewing all of the surrounding circumstances, the Court finds that the People have failed to establish that Defendant voluntarily consented to Sergeant's Antoniou's search of the car.
Even if Defendant's alleged consent was found proper, the search was nonetheless inappropriate. Where a dead body was recovered after a lawful traffic stop was suppressed, despite the fact that the defendant gave consent to search his trunk, the court held that the police was not justified in requesting consent in the first place, as there was no evidence of criminality, nor did they observe any weapons or other contraband (see People v. Turriago, 219 AD2d 383).
D. Application of the Exclusionary Rule
The exclusionary rule is "a judicially created remedy intended as a means of discouraging police misconduct." (see People v. Castillo, 80 NY2d 578, 583 [ citing Stone v. Powell, 428 U.S. 465 (1976)]). It has long been employed to prevent the use at trial of prosecution evidence which has been obtained as a direct result of police action which violates the Fourth Amendment. (see Mapp v. Ohio, 367 U.S. 643; Weeks v. United States, 232 U.S. 383). Because the rule does not serve any "truth-seeking" function (People v. Castillo, supra at 583) and exacts a "heavy price" on society by interfering with the public's right to have the guilt or innocence of a criminal defendant determined based upon all available evidence, however, it is only applied to suppress "evidence which has been come at by exploitation of that illegality.'" (People v. Arnau, 58 NY2d 27, 32 [ quoting Wong Sun v. United States, 371 U.S. 471, 488 [further citations omitted]).
Applying the exclusionary rule to suppress such "fruit of the poisonous tree" (Nardone v. United States, 308 U.S. 338, 341) requires a finding that the evidence which is sough to be suppresses was discovered as a direct result of it. (see People v. Arnau, supra 32-33 [1982], cert denied, 468 U.S. 1217, People v. Rogers, 52 NY2d 527). The burden is on the defendant who seeks suppression pursuant to the rule to demonstrate that the acquisition of the evidence was causally related to the police misconduct (see People v. Arnau, supra at 34).
The validity of a search depends upon the existence of probable cause at the time the search is conducted and not on the results of that search (see People v. McCarthy, 14 NY2d 206). "A search is good or bad when it starts and does not change character from its success (People v. O'Neill, 11 NY2d 148), (People v. McCarthy, supra at 209). The People have failed to satisfy their burden of proving the legality of the instant search (see People v. McCarthy, 14 NY2d 206), People v. Miret-Gonzalez, 159 AD2d 647, lv. denied 76 NY2d 739). It is well established that the People, faced with a constitutional challenge to a search and seizure, bear the burden of going forward with evidence to show the legality of the search in the first instance (see People v. Whitehurst, 25 NY2d 389). The testimony offered by the People to meet this burden must be credible (People v. Quinones, 61 AD2d 765, 766), and cannot be credited when it appears tailored to nullify constitutional objections or where such testimony is "manifestly untrue, physically impossible, contrary to experience, or self-contradictory" (People v. Garafolo, 44 AD2d 86, 88, [1974]) (see also People v. Carmona, 233 AD2d 142.
Here, Defendant has met his burden. Not only did the police action in acquiring the evidence of the money and Defendant's statements occur within less than a minute of the questionable stop of Defendant's car, without proper verification of Defendant's papers, but the discovery was the direct result of the stop of the car, and would not have occurred without it. There was no intervening circumstance which led to the revelation of any of this evidence to the police; rather, it unfolded in one continuous and unbroken chain of events. The behavior of the police here, in ordering the Defendant and his passenger out of his car, based solely on his nervousness, "broken English" and an elapse of mere seconds in providing the passenger's name, and without reasonable suspicion that either of them were armed or dangerous, suggests that all further police action flowed from the same initial and improper source, that being the desire to investigate the possibility of criminal activity without having a legal basis for so doing. Furthermore, Sergeant Antoniou ordered Defendant out of the car almost immediately after pulling him over, despite the fact that Defendant provided all of the requested paperwork. Inexplicably, Sergeant Antoniou chose not to run Defendant's information prior to removing him from his vehicle.
Given the violation of Defendant's rights herein, the solid public policy basis for application of the exclusionary rule and its concomitant deterrence purpose is invokable. Accordingly, all of the aforementioned evidence acquired as a result of the car stop must be suppressed.
Conclusion For the reasons stated, the Mapp, and Dunaway motion of Defendant is granted. In light of there being no basis to stop the car in which Defendant was riding, all ensuing evidence is suppressed (see e.g., Wong Sun v. United States, 371 US 471; see also People v. Cantor, 36 NY2d 106, [1975]). Thus, the Court does not treat with either the issue of whether any statement was taken in violation of the requirements of Miranda v. Arizona, 384 U.S. 436, or the related issue of whether any formal statement was improperly influenced by un-Mirandized statements made at the scene (see People v. Gutierrez, 2005 NY Slip. Op. 51063 [2005]).
ORDERED, that Defendant's motion to suppress physical evidence and statements is in its entirety granted.
This constitutes the opinion and decision of the Court.