Opinion
2870-08.
Decided April 29, 2010.
Michelle Johnson, Esq., Assistant District Attorney, Office of Robert T. Johnson, Esq., Bronx, New York.
Angel Frau, Esq., Bronx, New York, Attorney for Defendant.
Defendant Latisha Bowden was indicted in 2008 on numerous weapons charges after a late night encounter with police on a fire escape, in which the police searched a bag in her possession and found a gun and ammunition.
On March 25, 2010, the Court held a combined Huntley-Mapp-Dunaway hearing and issued a written decision, dated March 30, 2010, granting Defendant's motion to suppress the gun and ammunition and all evidence obtained thereafter as a result of an illegal search by police of Defendant's bag without a warrant (herein after "Suppression Decision"). The Court held that although the initial stop and detention of Defendant by the police was proper in view of the reasonable suspicion that existed, the subsequent warrantless search of the bag that Defendant had in her possession after Defendant already had been secured by the police was not. The Court determined that Defendant had standing to assert privacy rights over the contents of the bag at issue and that no evidence existed to show that Defendant evinced an intent to abandon, or in fact, did abandon the bag. The Court also found that the People did not establish any evidence of exigency or safety that could form the basis of a proper warrantless search.
The Court found that, other than the illegal search, no probable cause existed to arrest Defendant. Accordingly, the Court also suppressed an oral statement and a written statement allegedly made by Defendant as such evidence was obtained as a result of the illegal search and arrest.
On March 31, 2010, the Court orally rendered its Suppression Decision from the bench and distributed the written version to the People and Defendant in court. The Court then adjourned the matter to April 14, 2010 so that the People could determine what they intended to do with respect to the action. On April 14, 2010, the People informed the Court that they planned to file a motion to reargue. The Court directed the People to file their motion on or before April 19, 2010. Defendant indicated any response would be filed by April 21, 2010 and the Court adjourned the case to April 23, 2010, indicating that it would render a decision on any such motion on that date.
Inexplicably, the Court's Suppression Decision is date stamped as filed with the Clerk's Office as of April 9, 2010 — more than a week after the Suppression Decision was hand delivered in court to the parties. No one disputes having received the Decision on March 31, 2010.
On April 20, 2010, the Court received a copy of the People's Affirmation in Support of A Motion To Reargue and Memorandum of Law (hereinafter "Affirmation" and "Memo of Law"). Defendant did not submit any written response.
The People never filed a notice of motion to reargue or even a motion to reargue and failed to file within the timetable ordered by the Court. See C.P.L.R. § 2211. Nonetheless, no opposition was submitted by Defendant. The Court also notes that there is no contention that the People were served with written notice of the entry of its Suppression Decision which would start the statutory time clock for filing. See C.P.L.R. § 2221(d)(3). (The Court also notes that it is not the protocol of the clerk's office in Bronx Supreme Court, Criminal Division, to stamp any decision with notice of entry.) Accordingly, the Court will treat the papers submitted by the People as a motion to reargue and consider such papers despite the People's failure to comply with proper motion protocol pursuant to the CPLR for such motion or the Court ordered schedule. However, the fact that the Court will consider the People's motion to reargue on its merits does not mean that the Court will countenance or entertain serial filings of affirmations to reargue issues of law in this case, as the People appear to suggest they will do in Footnote 1 of the People's Memo of Law.
As an initial matter, the Court incorporates its findings of fact and conclusions of law in its Suppression Decision as if fully set forth herein. For the reasons set forth below, the Court denies the People's motion to reargue finding that the Court has not overlooked or misapprehended any facts or law pertaining to this matter.
The People contend that, pursuant to C.P.L.R. §§ 2221(d)(1), (2) and (3), the Court should grant the People leave to reargue the suppression issues previously decided by this Court, asserting that the Court erred in finding that Defendant did not abandon the evidence, that no exigency existed to support a warrantless search of the bag at issue, and that Defendant had standing.
Upon consideration of the People's "motion", the Court denies the motion finding it meritless. A motion to reargue is granted only if it is "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. . ." C.P.L.R. § 2221 (d)(2); see also Andrea v. E.I. DuPont de Nemours Co., 289 AD2d 1039, 1040-1041, 735 NYS2d 683 (4th Dep't 2001), app. denied, 97 NY2d 609, 765 NE2d 853, 739 NYS2d 357 (2002). "Its purpose is not to serve as a vehicle to permit the unsuccessful party to reargue once again the very questions previously decided." Foley v. Roche, 68 AD2d 558, 567, 418 NYS2d 588 (1st Dep't 1979). Here, the People simply rehash issues they previously argued unsuccessfully, cite inapposite cases, and fail to show in any way that the Court overlooked any material fact or misapprehended any matter of law. Accordingly, the motion is denied.
As an initial matter, the Court notes that the People convolute the issues by re-visiting the issue of abandonment first rather than addressing the threshold issue of standing. The People's failure to organize their arguments in logical sequence manifests the lack of appropriate analysis with which their papers are rife. It is axiomatic that determining first whether or not Defendant has standing drives the analysis for determining the merits of Defendant's motion to suppress. People v. Burton , 6 NY3d 584 , 587, 848 NE2d 454, 457 (2006) (no legal basis for suppression and no need for a hearing, unless facts exist that demonstrate standing to challenge the search or seizure).
If the Court were to have found that Defendant had no standing to assert rights over the evidence, which it did not, the inquiry ends there and Defendant's motion to suppress would have failed. People v. Whitfield, 81 NY2d 904, 905-06, 613 NE2d 547, 548-49 (1993).
Moreover, the People's contention that the Court misconstrued standing and abandonment in its reliance on People v. DeLaCruz, 242 AD.2d 410, 662 NYS2d 300 (1st Dep't 1997), is unavailing. The Court pointed to DeLaCruz only as an example of a case where a defendant affirmatively relinquished ownership interest in the evidence, unlike the facts of this case. In that case, defendant also lacked standing to assert privacy rights over such evidence.
However, even if the People's arguments had been presented in an analytically sequential fashion, the motion still would lack merit.
Turning to the issue of standing, the People point to no law that the Court has misapprehended. Instead, citing Ramirez-Portoreal, 88 NY2d at 108, the same Court of Appeals decision cited by this Court, the People assert that the Court overlooked certain facts in evidence which, according to the People, show that Defendant has no standing to assert a privacy interest in the contents of the "bag." The People are wrong in that they focus on the wrong "bag" in the facts of this case.
The Court appropriately examined the facts at issue to determine whether the Defendant had an expectation of privacy in the item searched and whether that expectation was objectively reasonable. Ramirez-Portoreal, 88 NY2d at 108. The Court's decision, holding that Defendant was in "actual and sole possession" of the closed bag up to the moment when the police ordered her not to move, and that she had exclusive access to that outer canvas bag which contained the inner "BRATZ" bag, evidencing an intent to conceal the contents, is the only conclusion reachable under these facts.
The People's reliance on Defendant's statement (People's Ex. 1 in Evidence at the Hearing) about "Jason's bag" or that Defendant "wanted to get rid of the bag" is misplaced. Those statements in no way manifest Defendant's ownership of or intention about that outer bag. Indeed, Defendant's statement in People's Ex. 1 confirms her possessory right and expectation of privacy in that outer bag because she states that "I placed the bag in another bag." There is no evidence whatsoever that anyone other than Defendant had a possessory or ownership interest in that outer bag, or any evidence whatsoever that Defendant sought to rid herself of the outer bag. Accordingly, the Court correctly found in the facts at issue that Defendant has standing to assert a right to privacy over the contents of the outer bag. As no one could have accessed the contents at issue — the inner bag which contained the gun and the ammunition — without first invading Defendant's right to privacy in that outer bag, the Court properly granted Defendant's motion to suppress.
The cases cited by the People on this issue of standing are unpersuasive as they relate to facts not pertinent to the inquiry here — several cases cited by the People relate to searches of premises and whether the defendant had standing to challenge the search. As there is no indication in the record or in this Court's decision that the roof top location somehow conferred standing on Defendant, the cases are irrelevant. Indeed, such cases require a somewhat different analysis than the facts of this case, including a determination of whether the person asserting standing had a right to exclude others from the premises and the manner in which that person used the premises. See People v. Ponder, 54 NY2d 160, 429 NE2d 735 (1981) (search of a home in which defendant did not live and the seizure of a gun he had stashed there); People v. Rodriquez, 69 NY2d 159, 162 (1987) (search of an apartment); People v. Jose, 252 AD2d 401 (1st Dep't 1998) (search of apartment). These cases and the fact patterns therein simply are not germane to the issue of Defendant's standing to assert her right to privacy over the contents of a closed bag belonging to her.
The other set of cases cited by the People on this issue also are wholly inapposite. See, e.g., People v. Van Houton, 177 Misc 2d 94 (County Ct, Chemung Co. 1998) (open bags in plain view in public stairwell); People v. Laws, 208 AD2d 317 (1st Dep't 1995) (gun in plain view in a car).
Surprisingly, the People rely on a case, People v. Millan, 118 AD2d 236, 241 (1st Dep't 1986), rev'd, 69 NY2d 514, 508 NE2d 903 (1987), for the proposition that Defendant had no reasonable expectation of privacy in this case. In Millan, the Court of Appeals overruled the lower court as to the issue of defendant's standing in that case finding that the defendant had standing to assert a privacy right in the cab in which he was driving. The People's inclusion of that case to support their position in this matter is inexplicable.
In Millan, the Court of Appeals held that the People could not simultaneously use the statutory presumption of possession of gun for all occupants of an automobile and, at the same time, deny that the occupants had standing to challenge the search. 69 NY2d at 519-20, 508 NE2d at 906.
Turning to the People's contention that Defendant purposely abandoned the bag and that this Court misapprehended the law as to abandonment, such argument has no basis. The Court of Appeals' standard for determining abandonment, as set forth in People v. Ramirez-Portoreal, 88 NY2d 99, 110, 666 NE2d 207, 213 (1996), is unequivocal. See Suppression Decision at page 6. To find abandonment, the Court must find that Defendant made a calculated, voluntary act to abandon the evidence and that Defendant did not react spontaneously. 88 NY2d at 110. As noted in this Court's Suppression Decision, the facts elicited by the People's witness, PO Barnett, show that Defendant did not abandon the bag or relinquish her privacy rights over its contents when she dropped the bag in response to Officer Urquiaga's command, "Police, don't move". Suppression Decision at 6.
The People's contention that Defendant made a calculated voluntary act in dropping the bag is wholly unsupported by the evidence which shows that Defendant's act was a spontaneous reaction to the instructions by the police.
The Court is unpersuaded by the cases the People cite as no case is comparable to the facts of this case. Indeed, the People cite a stream of cases wholly inapposite to the facts here. For example, the People cite People v. Gregg, 203 AD2d 188 (1st Dep't 1994), a case in which the evidence at issue — drugs — were found to be "abandoned by the defendant as a calculated risk" when defendant was approached by the police and dropped the drugs in his possession. Id. at 189. No such facts exist here.
Likewise, the People's reliance on People v. Bolido, 223 AD2d 467 (1st Dep't 1996) and People v. Rivera, 175 AD2d 78 (1st Dep't 1991) to assert calculated, voluntary abandonment by Defendant here is wholly unpersuasive to the Court. In Bolido, the defendant dropped bags containing drugs after noting the mere presence of police officers. 223 AD2d at 467. In Rivera, the defendant fled at the sight of police, after he had just concluded a drug transaction, and abandoned the heroin mid-flight. The facts in those cases evidenced a calculated act of abandonment rather than a spontaneous response to the police instruction, "Don't move." 175 AD2d at 80.
In People v. Grant, 164 AD2d 170 (1st Dep't 1990), also cited by the People, the Court suppressed the gun defendant threw away as he ran from police, finding that the defendant's act was a spontaneous reaction precipitated by illegal police action.
Moreover, in citing People v. Sharrief, 117 AD2d 635 (2d Dep't 1986), the People misstate the facts of that case to support their abandonment argument contending that the Sharrief court found abandonment when the evidence in that case "fell out of [defendant's] sleeve." People's Memo of Law at p. 5. In fact, in that case, the defendant's purposeful act — shaking the evidence out of his sleeve so that it fell to the ground as he was stopped on the street by police — was dispositive in the court's abandonment analysis in that case. 117 AD2d at 636.
Such a purposeful or voluntary act is not present in this case. Here, according to PO Barnett, Defendant fled up the fire escape onto a dark roof, where she was met by two police officers who, with guns drawn, said, "Police, don't move". PO Barnett testified, that, at that directive, Defendant dropped the bag she was carrying. Defendant's spontaneous, surprised reaction directly contradicts the People's contention that the Defendant abandoned the bag.
Lastly, the People's assertion that the Court misapplied the law with respect to whether exigency existed which would permit the police to frisk the bag also has no merit.
Of serious concern to the Court is the People's effort to "re-cast" the facts of this case apparently in an effort to revise the evidence elicited from their own witness at the Suppression Hearing to support their claim of exigency. Contrary to the People's assertion, there is no evidence that "the police went to Defendant's apartment to investigate a violent crime" and that they did not know "whether or not they in fact had that violent shooting suspect in custody." People's Memo of Law at p. 6. The People apparently seek to suggest that the police had reason to be fearful that they might encounter the real' shooting suspect that night. However, this is wholly contradicted by their own witness' testimony. Officer Barnett testified that, prior to going to Defendant's apartment, the police already had apprehended the shooting suspect. Officer Barnett testified that Police Officer Ray Tosado had observed "an individual who's wanted for a shooting" in City Island and that "[they] went there and apprehended him." Suppression Hearing Tr., p. 14. Indeed, PO Barnett's testimony showed that the police officers' purpose for going to Defendant's apartment that evening was to verify the suspect's identity and address, not whether he was the shooter. The suspect had provided to the police two different residences and the police went to the address the suspect had given the police on a previous arrest. Suppression Hearing Tr., pp. 12-13. Police efforts to verify the name and address of a person already in custody, by visiting an address he had previously supplied, did not enhance the level of risk for the police in this case.
In their memorandum of law, the People assert that ". . . the People also aver the bag was in Defendant's grabbable area." People's Memo of Law at p. 9. There is no affirmation or affidavit or testimony or document in evidence asserting such fact. Accordingly, the Court is mystified that the People would contend that they "aver" a fact that simply is outside the record without any sworn statement or affirmation of the same.
Moreover, the People's contention that because the police had a reasonable basis to stop, detain and secure Defendant they were also able to search the bag stands the argument on its head. As Smith, a case cited by the People shows, the facts dictate whether such a warrantless search is proper and here the facts show it was not.
As the People acknowledge, when property is recovered from within the grabbable area or immediate control of a suspect, only public safety or police safety justify a warrantless search. Gokey at 312; People v. Smith, 59 NY2d 454, 458, 452 NE2d 1224, 1227 (1983). The People also have "averred" — without evidence — that the bag was in Defendant's grabbable area. People's Memo of Law at p. 8. No such evidence was elicited. Moreover, even if the bag had been in Defendant's grabbable area or control, there is no evidence that public safety or police safety was at issue.
The People's reliance on Smith to contend that the Court missapplied the facts and law as to exigency and the definition of the Defendant's "grabbable area" in this case is unwarranted. Not only are the facts of Smith inapposite to the facts here, the decision of the Court of Appeals in that case does not support the People's position. In Smith, the Court of Appeals determined a warrantless search of a briefcase held by a man arrested by police after he jumped a turnstile was proper when the man was wearing, and denied wearing, a bulletproof vest. The Court of Appeals also noted that "[t]he arrest and search of the briefcase were for all practical purposes conducted at the same time and in the same place". 59 NY2d at 459, 452 NE2d 1227. In that case, the reasonableness of the search turned on the fact that the police had reason to suspect the presence of a weapon because the Defendant was wearing and denied wearing a bulletproof vest.
Here, no such facts exist. The People's witness, PO Barnett, unequivocally testified that Defendant was "in custody" first; she was "secured" by police and then the bag was searched by police. No fact — until after the police "frisked" the bag — gave the police reason to suspect the existence of a weapon.
Notably, in Smith, the Court of Appeals pointed out that "a container may not be searched for a weapon or evidence if it is apparent that it is so securely fastened that the person arrested cannot quickly reach its contents." 59 NY2d at 458, 452 NE2d 1227. In this case, the weapon police found was inside two closed bags, a canvas exterior bag and a interior "Bratz" bag.
On all bases of analysis, Smith is inapposite. Here, there was no exigency, as Defendant was in custody and secured before the bag was frisked by the police. The bag was not in Defendant's grabbable area, nor was safety of the officers or the public a factor. Moreover, unlike in Smith, no other fact gave rise to a suspicion of the existence of a weapon.
The People's assertion that "there is no testimony detailing . . . when [Defendant] was placed in Officer Ermhardt's custody while still on the roof" also is wrong. This issue was dealt with not once, but four times during his testimony — both on direct testimony and on cross-examination. PO Barnett first testified that, after PO Urquiaga observed the Defendant drop the bag, "he placed [Defendant] in custody. He handed her off to Officer Ermhardth. He retrieved the bag." Suppression Hearing Tr. at p. 19. Upon cross-examination, PO Barnett confirmed that Defendant was secured from the other police officers. Id. at p. 43. On re-direct examination by the People on this issue, PO Barnett again testified that, after Defendant dropped the bag, she was in the custody of Officer Emhardth. Id. at p. 46. Finally, at the end of his testimony, PO Barnett confirmed, for the fourth time, that Defendant was passed off to the other officer before Officer Urquiaga picked up the bag. Id. at p. 47.
The cases cited by the People on this issue of grabbable area also are unpersuasive as they are inapposite to the facts here. Each case relates to circumstances where the arrestee still reasonably could gain access to the gun at issue. The case cited by the People, In re Anthony B., 268 AD2d 265 (1st Dep't 2000), a juvenile case, was a case wherein a police officer inadvertently felt the contents of the suspect's backpack — a gun. The inadvertent discovery of a potential weapon — not an intentional search — was the basis of for the subsequent search of that bag. Here, in this case, PO Barnett testified that PO Urquiaga "frisked the bottom of the bag". Likewise, in People v. Walker, 186 AD2d 606 (1st Dep't 1992), a case also cited by the People, the warrantless search was appropriate due to police officer safety — the defendant in that case stood outside the open door of the car, unrestrained. Here, Defendant already had been secured by the police.
At the suppression hearing, there was no testimony or evidence whatsoever that the safety of either Officer Emhardth or Officer Urquiaga was at risk or that exigent circumstances existed such that the bag needed to be investigated or that the bag was within Defendant's grabbable area. Once Defendant was secured by the police, no issues existed that would necessitate the police officer's "frisk" of the bag. People v. Gokey, 60 NY2d 309, 311, 457 NE2d 723, 724 (1983); People v. Torres, 74 NY2d 224, 226, 543 NE2d 61, 62 (1989). Thus, this Court appropriately found that there was no exigency upon consideration of the evidence at the Suppression Hearing and the law.
The People's Motion to Reargue is denied. The People have failed to demonstrate that the Court misapprehended the law or the facts in any way.
The following papers were considered by the Court in deciding the motion: Memorandum of Law in Support of Motion to Reargue, and Affirmation of Michelle M. Johnson, Assistant District Attorney, filed on April 20, 2010.
This constitutes the Decision and Order of this Court.