Opinion
2870-08.
Decided March 31, 2010.
Michelle Johnson, Esq., Assistant District Attorney, Office of Robert T. Johnson, Esq., Bronx, New York.
Angel Frau, Esq., Office of Steven Banks, Esq., Bronx, New York, Attorney for Defendant.
Defendant Latisha Bowden was charged in a four count indictment with Criminal Possession of a Weapon in the Second Degree, P.L. § 265.03(3), Criminal Possession of a Weapon in the Third Degree, P.L. § 265.02(3), Criminal Possession of a Weapon in the Fourth Degree, P.L. § 265.01(1), and Possession of Ammunition, A.C. 10-131(i)(3).
On September 26, 2008, Defendant filed an omnibus motion seeking, among other things, to have the Court (1) suppress all tangible property taken from Defendant by law enforcement; (2) suppress oral and written statements of the Defendant and any identification of the Defendant; (3) inspect the Grand Jury minutes and dismiss the indictment or reduce the charges; and (4) prevent the People from introducing any previous criminal convictions or bad acts of the Defendant if she were to testify.
People submitted an opposition, filed November 18, 2008, to Defendant's motion.
With respect to that portion of Defendant's motion to suppress the physical evidence and statements, Defendant contends that the police did not have probable cause to search a backpack that Defendant had in her possession and thus, no basis to place defendant under arrest, and asks this Court to suppress all evidence and any statements allegedly made by Defendant.
On February 18, 2009, the Honorable William Mogulescu granted, in part, and denied, in part, Defendant's motion. Judge Mogulescu, after inspection of the Grand Jury minutes, denied Defendant's motion to dismiss or reduce the charges in the indictment, but ordered a Huntley hearing to determine the voluntariness of any statements made, granted Defendant's motion for a Mapp hearing, and ordered a Dunaway hearing on the issues of suppression of the statements. The Court also reserved the Sandoval issue to the trial court.
On March 25, 2010, this Court held the combined Huntley-Mapp-Dunaway hearing. At the hearing, Sergeant Robert Barnett, Shield No. 157, of the Bronx Anti-Crime Unit, testified. After Sgt. Barnett's testimony, the People informed the Court that they would be eliciting additional police officer testimony. The Court then adjourned the hearing to March 30, 2010. On March 29, 2010, via telephone, the People informed the Court and Defendant's counsel that no additional witnesses would be called by the People. On March 30, 2010, the People rested and Defendant called no witnesses. At that time the People also informed the Court that they were withdrawing their application to use the written statement provided by Defendant in their case-in-chief, with leave to renew such application at the time of trial.
Upon consideration of the credible testimony and evidence and for the reasons set forth below, the Court finds that, although Defendant's initial stop and detention by the police was proper in view of the reasonable suspicion that existed, the search of Defendant's bag after Defendant already had been secured by the police was not. As noted below, the court finds that Defendant has standing to assert privacy rights over the contents of the bag at issue and grants Defendant's motion to suppress the contents of the bag. Thus, the Court finds that no probable cause existed to arrest Defendant. The Court also suppresses the second oral statement and the written statement allegedly made by Defendant as fruit of the illegal search and arrest.
FINDINGS OF FACT
Sgt. Barnett credibly testifed as to the events surrounding the arrest of Defendant on the charges pending in the Indictment before the Court. Sgt. Barnett testified that, on June 28, 2008, he and three other police officers — Police Officer Urquiaga, Police Officer Emhardth and Police Officer Smith — arrived at Defendant's fourth floor apartment door — 4C — at 2:30 a.m. in an attempt to verify the identity of a suspect they had just arrested.
Although Sgt. Barnett pronounced his fellow officer's name as Emhardt , at the hearing he spelled the name as "EMHARDTH." Accordingly, this Court will refer to that officer with the spelling provided by Sgt. Barnett at the hearing.
Sgt. Barnett testified that he knocked on the door of Defendant's home and heard a female voice ask, "Who is it?" He testified that he replied, "It's the police. Can I have a word with you?" Sgt. Barnett then testified that he heard scuffling noises and the distinct sound of a window opening up. Sgt. Barnett testified that he then instructed Officers Emhardth and Urquiaga to go to the roof, and that he ran downstairs. Officer Smith remained at the apartment door. Sgt. Barnett testified that at no time did the apartment door open during this incident.
Sgt. Barnett then testified that, although he was not present on the roof, Officer Urquiaga, one of the officers who went up to the roof, arrived at the fourth floor landing of the building and told Sgt. Barnett what had occurred on the roof. Sgt. Barnett testified that Officer Urquiaga informed him that, when he was on the roof, he observed a dark figure, a dark silhouette, emerge from the fourth floor apartment and begin climbing the fire escape toward the roof of the building. Sgt. Barnett testified that Officer Urquiaga informed him that he and Officer Emhardth took cover until the person emerged on to the roof and then he and Officer Emhardth drew their guns. At that point, Officer Urquiaga, according to Sgt. Barnett, said to the person, "Police. Don't move." Sgt. Barnett testified that Officer Urquiaga told him that the person — who was the Defendant — then dropped a bag she had been carrying to the roof.
Sgt. Barnett testified that Officer Urquiaga told him that after Defendant dropped the bag, he placed Defendant in custody and handed her over to Officer Emhardth. Sgt. Barnett testified that Officer Urquiaga then informed him that he retrieved the bag, frisked it and felt a hard L-shaped metal object. Sgt. Barnett also testified that Officer Urquiaga told him that he believed the object to be a firearm. According to Sgt. Barnett, Officer Urquiaga opened the bag — it was canvas — and inside the bag was a BRATZ bag. Sgt. Barnett testified that Officer Urquiaga told him he then opened the BRATZ bag and inside was a "loaded .45 caliber firearm, . . . next to it was a clip and magazine and five live .45 caliber rounds."
At the hearing, in response to a query from the Court, Sgt. Barnett indicated that the BRATZ bag referred to the children's TV show "BRATZ.".
Sgt. Barnett testified that Officer Urquiaga then told him he asked Defendant what she was doing on the roof and, after she replied, Defendant was then arrested and transported to the 48th Precinct. Sgt. Barnett testified that, during the ride to the 48th Precinct, Defendant spontaneously began stating that she didn't know what was in the bag — she thought it was a paperweight or something to that effect. Sgt. Barnett also testified that, thereafter, at the 48th Precinct, Defendant was given Miranda warnings, both orally and in writing, which Defendant waived, in writing, by signing her initials next to each warning and then her signature. On the same paper, immediately below her signature, Defendant made a written statement which she also signed.
CONCLUSIONS OF LAW
This case exemplifies the thorny issue of the precarious balancing of police safety and exigent circumstances with a person's right to privacy when a warrantless search occurs. Under the facts and circumstances in this case, the Court finds that there was no evidence or testimony of exigency or police safety that would tip the scales away from preserving Defendant's right to privacy. People v. Smith, 59 NY2d 454, 458 (1981).
As an initial matter, the Court finds that Defendant has standing to assert her privacy rights over the contents of the bag. Defendant was in "actual and sole possession" of the closed bag up to the moment that the police ordered her not to move. People v. Ramirez-Portoreal, 88 NY2d 99, 111, 666 NE2d 207, 214 (1996). 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, [d]on't move." Notably, Sgt. Barnett credibly testified that the gun and ammunition that were seized from the bag actually had been enclosed in two bags — an outer canvas bag and, inside that, a BRATZ bag. Clearly, Defendant manifested no intent to reveal the contents. Indeed, the fact that the evidence was "double-bagged" manifests an intent to conceal the contents of the bag from public view. People v. Bell, 121 AD2d 455, 456, 503 NYS2d 145 (2d Dep't 1986).
In addition, Defendant's oral response to Officer Urquiaga's inquiry about "what [she was] doing up [on the roof]" related only to her actions in going up to the roof — not the contents of the bag. Defendant's statement that she "had this bag . . . It didn't belong in her house, she had to get it out of her house" implies no relinquishment of ownership or her rights to privacy over its contents. People v. DeLaCruz, 242 AD2d 410, 412, 662 NYS2d 300 (1st Dep't 1997) (no standing when Defendant affirmatively disavows ownership of item). Likewise, Defendant's spontaneous utterance to the police officers after she had been arrested that she "didn't know what was in the bag . . . it was . . . a paperweight or a weight . . . that she just wanted to get it out of her house" also reveals no intent to abandon ownership of the bag, only an intent to remove it from her home. Thus, this Court finds that the credible testimony establishes that Defendant has standing to assert privacy rights over the bag and its contents.
With respect to the pursuit, stop and detention of Defendant, the Court finds that the police officers' actions — pursuing Defendant onto the roof and stopping and detaining her on the roof — in light of Defendant's furtive behavior in the wee hours of the night/morning — was wholly proper. People v. Singh, 291 AD2d 419, 419, 739 NYS2d 156, 157 (2d Dep't 2002) (unresponsive and peculiar answers from defendant behind closed doors combined with attempt to flee through window and jump off roof gave police reasonable suspicion to pursue).
After the police knocked at Defendant's door and identified themselves as police officers to the voice that responded to their knock, the door was not opened and no further response was provided. Sgt. Barnett credibly testified that, instead, he heard scuffling noises inside and the opening of a window in the apartment. Sgt. Barnett then appropriately directed two officers to the roof of the building. The failure to answer the door or provide any other response, the scuffling noises, and the opening of the window, combined with Officer Urquiaga's observation of a dark figure emerging out of the apartment window onto the fire escape with an object, gave the officers reasonable suspicion to pursue, stop and detain the Defendant. Singh, 291 AD2d at 419, 739 NYS2d at 157.
However, once Defendant was secured by the police, no exigency or safety 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). Indeed, 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. Sergeant Barnett testified that Officer Urquiaga informed him that Defendant was "in custody" at the time Officer Urquiaga picked up the bag. Sgt. Barnett could not recall whether Defendant was handcuffed, but he was quite clear that she was "secured" at that point.
Moreover, there was no evidence that the bag was "within the immediate control or grabbable area" of Defendant which might have posed a safety hazard to the officers. Gokey, 60 NY2d at 311, 457 NE2d at 724; People v. Jackson, 246 AD2d 491 (1st Dep't 1998). Instead, Sgt. Barnett credibly testified that Officer Urquiaga "placed [Defendant] in custody. He handed her off to Officer Emhardth." Only thereafter did Officer Urquiaga retrieve the bag.
Although the facts at issue demonstrate that the police had reasonable suspicion to secure Defendant and inquire further, they did not make further inquiry until after the bag had been searched. After Defendant had been secured, the police properly questioned her about her actions; but they did not ask questions about the contents of the bag. They did not do so because they had already searched the bag. Perhaps Defendant's answers to any such questions could have formed a basis for further investigation of the bag. Perhaps a warrant could have been obtained to search the bag's contents. None of these things happened.
Without a warrant, exigency or any evidence of risk to police safety, Officer Urquiaga "frisked the bottom of the bag." Such a search was without probable cause and, accordingly, the results of that search must be suppressed. Gokey at 313-314.
Moreover, the only basis for Defendant's arrest was the illegal search of the bag and therefore, the arrest was without basis as well. People v. O'Neill, 11 NY2d 148, 153, 182 NE2d 95, 98 (1962)("the arrest "must be validated without any resort to the fruits of the search")
With respect to Defendant's application to suppress her statements, the Court notes that Defendant's first oral statement in response to Officer Urquiaga's inquiry "What are you doing up here," was obtained as a result of investigative inquiry, not as a result of the search of the bag or custodial interrogation. People v. Bennett, 70 NY2d 891, 893-94, 519 NE2d 289, 291 (1987); People v. Patterson, 138 AD2d 540, 540-41, 526 NYS2d 37, 37-38 (2d Dep't 1988). Pursuant to Sgt. Barnett's testimony, although it appears that Defendant made that statement after Officer Urquiaga searched the bag, Officer Urquiaga's query, "[w]hat are you doing up here," was appropriate investigative inquiry and unrelated to that illegal search. Accordingly, this Court denies that portion of Defendant's motion seeking to suppress Defendant's statement that she "had this bag and she had — it didn't belong in her house and she had to get it out of her house." Patterson, 138 AD2d at 540-41, 526 NYS2d at 37-38.
Even though Defendant's first statement resulted from investigative inquiry, not custodial interrogation, the other two statements attributable to Defendant — a second oral statement and a written statement — must be suppressed. Although this Court finds that Sgt. Barnett credibly testified that Defendant's second oral statement was a spontaneous utterance, not the result of custodial interrogation, that statement was obtained from Defendant solely as a result of the illegal search and arrest and therefore, that statement must be suppressed. People v. Baptiste, 306 AD2d 562, 566, 760 NYS2d 594, 599 (3d Dep't 2003); People v. Sampson, 68 AD3d 1455, 1458, 891 N.Y.S2d 518, 521 (3d Dep't 2009).The Court likewise finds that the written statement provided by Defendant also was obtained as a result of the illegal search and arrest and that too must be suppressed. Id.
The Court notes that there is no evidence in this case that would indicate that Defendant's second oral statement or her written statement inevitably would have been discovered. People v. Turriago, 90 NY2d 77, 86, 681 NE2d 350, 355 (1997) (in applying the inevitable discovery exception, prosecution must demonstrate "very high degree of probability" that normal police procedures would have uncovered challenged evidence independently of tainted source, quoting People v. Payton, 45 NY2d 300, 313, rev'd on other grounds, 445 U.S. 573, on remand, 51 NY2d 169). But for the search of the bag and Defendant's arrest for possession of its contents — the gun and the ammunition — there was no probable cause to arrest Defendant or place her into custody. Had Defendant not been in police custody such statements would not have occurred.
For the reasons set forth above, the Court grants that portion of Defendant's motion to suppress the physical evidence — gun and ammunition — as well as the second oral statement and the written statement but denies Defendant's motion to suppress the first statement.
The following papers also were considered by the Court in deciding the motion: Notice of Motion, filed on September 26, 2008, and Affirmation of Angel Frau, attorney for Defendant, in Support of Motion; Affirmation in Opposition by George M. Suminski, Assistant District Attorney, filed on November 18, 2008.
This constitutes the Decision and Order of this Court.