Opinion
01998–2014
12-02-2015
The PEOPLE of the State of New York, Plaintiff v. Lamar S. DAVIS & Joseph Roland, Jr., Defendants
HON. FRANK A. SEDITA III, District Attorney of Erie County, BY: EUGENE PARTRIDGE, ESQ., 25 Delaware Avenue, Buffalo, New York 14202 SUSAN M. KARALUS, ESQ., (Attorney for Lamar Davis), 206 Culpepper Road, Williamsville, New York 14221 MARY BETH DEPASQUALE, ESQ., (Attorney for Joseph Roland, Jr.), 5488 Sheridan Drive, Suite 500, Williamsville, New York 14221
HON. FRANK A. SEDITA III, District Attorney of Erie County, BY: EUGENE PARTRIDGE, ESQ., 25 Delaware Avenue, Buffalo, New York 14202
SUSAN M. KARALUS, ESQ., (Attorney for Lamar Davis), 206 Culpepper Road, Williamsville, New York 14221
MARY BETH DEPASQUALE, ESQ., (Attorney for Joseph Roland, Jr.), 5488 Sheridan Drive, Suite 500, Williamsville, New York 14221
Michael F. Pietruszka, J.
The Defendants were indicted by an Erie County Grand Jury on three counts: (1) Criminal Possession of a Weapon in the Second Degree in violation of Penal Law (PL) Section 265.03(3), 20.00 ; (2) Criminal Possession of a Firearm in the Third Degree in violation of PL Section 265.11(2); and (3) Criminal Possession of a Controlled Substance in the Fifth Degree in violation of PL Section 220.06(5).
Both Defendants requested a hearing seeking both the suppression of the physical evidence, i.e. loaded revolver, five live rounds of ammunition and cocaine recovered from the Defendant Davis' vehicle and person, as well as their statements, based upon an illegal stop, search and seizure in violation of Criminal Procedure Law (CPL) Sections 710.20 and 710.30.
The hearings were commenced on August 25, 2015, continued on September 1, 2015 and concluded on September 2, 2015.
Post-hearing Memoranda of Law were submitted by Susan M. Karalus, Esq. on behalf of Defendant Davis, by Mary Beth DiPasquale, Esq. on behalf of Defendant Roland, and by Eugene Partridge, Esq. on behalf of the People.
FINDINGS OF FACT
On November 2, 2014, at approximately 11:20 p.m., Buffalo Police Officers Michael Acquino and Mark Hamilton were on routine patrol with his partner in the vicinity of 648 Lisbon Avenue in the City of Buffalo, County of Erie, State of New York. Officer Hamilton was driving the patrol vehicle and Officer Acquino was in the passenger seat. Officer Darren McDuffie was driving behind their vehicle in tandem. The officers were in uniform and in a marked police vehicle. Officer Acquino testified that his attention was drawn to a vehicle which was not running and was parked in front of 648 Lisbon Avenue. The vehicle was blocking the driveway, in such a manner as there was no way for another vehicle to get past this vehicle into the driveway. (6; 17; 19; 25–26; 56; 93, numbers in parenthesis refer to pages of the hearing transcript). Officer Acquino testified that his purpose for exiting and approaching Defendant Davis' vehicle was to investigate why the vehicle was blocking the driveway. (13)
Officer Acquino testified that his patrol vehicle stopped a little in front of Defendant Davis' vehicle, but not in a way which would have prevented him from pulling forward and driving away. The vehicle occupied by the Defendants was not boxed in at all and no attempt was made by Defendant Davis to move his vehicle. (12; 75)
Officer Acquino observed the vehicle for approximately ten seconds prior to approaching. During that time, he did not observe anyone enter or leave the vehicle, nor did it appear that any one was being dropped off. Officer Acquino exited his vehicle to investigate, approaching the driver's side of the vehicle. The vehicle contained two occupants, Defendant Davis was seated in the driver's seat and Defendant Roland was in the passenger seat. Officer Acquino made an in-court identification of each Defendant. (7–8;11) Neither the lights or siren were activated on either police vehicle prior to the approach of the officers. (37; 113)
Officer Acquino testified that when he got out of his vehicle to approach, Defendant Davis was looking down. (20–21) As Officer Acquino made his approach, he observed Defendant Davis making a furtive movement with his right arm towards the floor of the vehicle on the driver's side. Officer Acquino did not see anything in his hand, had no idea what he was looking down at and did not see him drop a gun. (21–22)
As Officer Acquino looked in the vehicle, he was able to observe a small revolver next to Defendant Davis' right foot. (8–9) Because of the lighting conditions, he used a flashlight to aid his vision. Officer Acquino made his observation while standing outside of the vehicle. The door of the vehicle was closed and the windows were up. Officer Acquino testified that the area in which he observed the revolver would have been visible from his vantage point with the naked eye in the daylight. Further, Officer Acquino testified that he was not looking under the seat with the flashlight. (8–9; 21)
Officer Hamilton testified that he was still in the police vehicle when Officer Acquino approached the vehicle. Within 10–15 seconds, Officer Acquino shined his flashlight toward him and motioned with his hand for Officer Hamilton to approach. Upon his approach, Officer Acquino said, in a soft voice, "Mark, Mark...Gun". (94; 105) When Officer Acquino shined his light into the vehicle, Officer Hamilton looked down between the legs of Defendant Davis and observed a small revolver at his feet. Officer Hamilton made an in-court identification of both Defendants. (95–96)
Officer Acquino next observed and also heard Defendant Davis kick the revolver against the back seat adjustment. Officer Acquino then opened the door, removed Defendant Davis from his vehicle and recovered the small revolver from the driver's side floor. (10)
Officer Acquino testified that neither he nor either of the other officers said anything to either Defendant during their approach to the vehicle. (13) Officer Acquino did not have his weapon drawn as he approached the vehicle. (19; 73; 82; 107) Officer Acquino did not tap on the window of vehicle. However, Officer Acquino did yell to Defendant Davis to let him see his hands and directed him to put his hands on the steering wheel after he observed the revolver. (23) Officer Hamilton provided testimony that after directing Defendant Davis to put his hands on the wheel, Officer Acquino unholstered his weapon and pointed it at the driver. (97) Officer McDuffie testified that a gun was drawn by either officer Acquino or Hamilton only after someone yelled "Gun". (73; 82)
Officer Hamilton then pulled Defendant Davis' arm and removed him from the vehicle. (108) Defendant Davis was then searched by Officer Hamilton in the presence of Officer Acquino. Officer Hamilton recovered five live rounds of ammunition from Defendant Davis' right hoodie pocket and crack cocaine from his right coin pocket. The recovered rounds corresponded to the small revolver recovered from the floor of the vehicle. (10) Officer Hamilton then asked Defendant Davis if he had anything else on him. (109) Neither Officer Hamilton or the other officers had any other conversation with Defendant Davis at that time. (110) Defendant Davis was then placed under arrest, in handcuffs and in the backseat of the patrol vehicle of Officers Acquino and Hamilton. (75–77)
Less than 15 minutes after the revolver was recovered, Officer McDuffie advised Defendant Davis of his Miranda warnings, while he was in the back of Officers Acquino and Hamilton's patrol vehicle and did so in the presence of both officers. Officer McDuffie read the Miranda warnings to Defendant Davis verbatim directly from a card (P–90). Defendant Davis verbally acknowledged that he understood his Miranda rights. (15; 33; 62–65; 100); People's Exhibit No.3. Officer McDuffie made an in-court identification of Defendant Davis. (62)
Officer McDuffie advised Officers Acquino and Hamilton that he had advised Defendant Davis of his Miranda warnings. (66) Officers Acquino and Hamilton then engaged Defendant Davis in a conversation regarding the fact that as he was on Parole, it was stupid for him to get into a car with another parolee to buy a gun. Defendant Davis replied that he did not really think about the consequences when he was doing it, that he just wanted to make a quick buck. (14–15) People's Exhibit # 1. Officer Hamilton testified that at no time did Defendant Davis refuse to speak to them or refuse to answer any questions. (100) People's Exhibit # 1.
As soon as Officer McDuffie heard someone yell "Gun", he took control of Defendant Roland for officer safety. Officer McDuffie made an in-court identification of Defendant Roland. Defendant Roland exited the vehicle of his own accord. Defendant Roland was then placed in the back of Officer McDuffie's patrol vehicle. Defendant Roland was not handcuffed. (58–59; 84–85) The vehicle door was shut and Defendant Roland was detained and unable to leave. Defendant Roland had some cash on his person that Officer McDuffie removed from his pocket to view and returned to him. Officer McDuffie alerted Officers Acquino and Hamilton to the cash. (59–60) Defendant Roland advised Officers Acquino and Hamilton that he had $350 in cash. (61)
Officer Acquino had a conversation with Defendant Roland, pre-Miranda , asking him what happened tonight and if he had anything to do with the weapon. Defendant Roland stated that he did not and that he was on Parole and wanted nothing to do with the situation. Officer Acquino advised Defendant Roland that it would be best if he went to "E" District Station to provide his side of the story. (34)
Defendant Roland was detained for investigative purposes only and not placed under arrest. Defendant Roland was then taken to "E" District Station to give a statement by Officer McDuffie. (66) Officer McDuffie had no further contact with Defendant Roland. (67) Officer McDuffie advised Officers Acquino and Hamilton that he had advised Defendant Davis of his Miranda warnings. (66) Officer Acquino testified that Defendant Roland was not placed in handcuffs for the transport. Officer Acquino did inform Detective Guilian about what Defendant Davis had advised him and that Defendant Roland wanted to make a statement. (15–16)
Detective Guilian testified that Defendant Roland was being brought down to "E" District Station in the capacity of a witness, not as a defendant. Detective Guilian met with Defendant Roland on November 3, 2015, at approximately 12:15 a.m. (39–40) Detective Guilian made an in-court identification of the Defendant. (40–41) Detective Guilian testified that Defendant Roland was not in handcuffs for the interview. (43) There was no conversation between Detective Guilian and Defendant Roland prior to taking the statement. (42)
Detective Guilian advised Defendant Roland of his Miranda warnings by reading them verbatim from the statement. Defendant Roland indicated that he understood each warning which was memorialized by Detective Guilian typing "Yes" after each question Defendant Roland's written statement. (43) Detective Guilian conducted the interview by typing a question, asking Defendant Roland the question and then typing his answer. Prior to signing his statement, Defendant Roland had an opportunity to review it. No corrections were made. (41–42) People's Exhibit # 2. Detective Guilian testified that Defendant Roland had no problems reading the statement. (48) Detective Guilian further testified that he made no promises to Defendant Roland to induce him to give his statement. (49) Taking the statement took a little more than an hour. (50) After Defendant Roland provided a written statement to Detective Guilian he was released. (16; 36)
DECISION
In order to determine the reasonableness of the police action which resulted in the seizure of the Defendant Davis' vehicle and the search of Defendants Davis and Roland, and the legality of using the oral statements made by Defendant Davis and the written statement made by Defendant Roland at trial, this Court must examine the predicate for the police action and determine whether that predicate action justified the extent of the official intrusion.
First, this Court notes that when the police approach a stationary vehicle to make inquiry of the driver, the situation is analogous to an approach to request information in a street encounter. The Court of Appeals has consistently held that under the New York State Constitution, a "seizure" occurs when "...a reasonable person would have believed, under the circumstances, that the officer's conduct was a significant limitation on his or her freedom." People v. Ocasio, 85 NY2d 982 and People v. Bora, 83 NY2d 531. The Defendants' constitutional rights and the protection afforded by the Fourth Amendment require that an officer substantiate and justify his level of intrusion relative to the Defendants' action and the parameters of appropriate police conduct. People v. Spinelli, 35 NY2d 77, People v. DeBour , 40 NY2d 210, People v. Hollman, 79 NY2d 181, People v. Guzman, 116 AD2d 528, and People v. Battaglia, 86 NY2d 755.
The applicable legal standard to be applied in the instant case regarding the officers' approach to Defendant Davis' vehicle is that of police-citizen encounters set forth in DeBour and Hollman. The DeBour and Hollman cases articulate the "levels of police activity authorized by the developing facts of the particular encounter". In order to determine the reasonableness of the police action in a street encounter situation, this Court must first examine the predicate for the police action and then determine whether or not that predicate action justified the extent of the official intrusion on the Defendant. People v. Stewart, 41 NY2d 65. The four-tiered analysis for police encounters in New York set forth by the Court of Appeals in DeBour is applicable to the instant case. People v. DeBour , 40 NY2d 210. Further, the Court of Appeals held in Ocasio that "the approach of occupants of a stopped or parked vehicle to request information is analyzed under the first tier of the DeBour hierarchy and need only be justified by an ‘articulable basis’ meaning an ‘objective, credible reason not necessarily indicative of criminality’ ". People v. Ocasio, 85 NY2d 982, People v. DeBour, supra. , and People v. Grady, 272 AD2d 952.
In the case at bar, the Defendants' vehicle was observed parked across and completely blocking a residential driveway when the officers stopped their patrol vehicles. This Court finds that the three officers at the scene, Officers Acquino, Hamilton and McDuffie, provided credible evidence that the Defendants' vehicle was not "boxed in" and free to move.
Officer Acquino approached the vehicle of Defendant Davis, after taking a short time to assess whether anyone was entering or leaving the vehicle, to investigate why the vehicle was blocking the driveway. Officer Acquino's initial intrusion was not only minimal, but also reasonably limited in scope and intensity. People v. DeBour, supra. Therefore, the officer's approach of the Defendants' vehicle did not constitute a stop or seizure, but was merely an exercise of the officer's right to request information pursuant to Level I of DeBour . People v. Hollman, 79 NY2d 181, People v. Harrison, 57 NY 470, People v. Brown, 112 AD2d 945, People v. Heston, 152 AD2d 999, and People v. Ocasio, 201 AD2d 15.
This Court further finds that Officer Acquino provided credible testimony that upon his approach to the vehicle he observed Defendant Davis both looking down and making furtive movements. Officer Acquino then shined his flashlight into the vehicle and observed the small revolver in plain view at the right foot of Defendant Davis. Officer Acquino further provided credible testimony that he did not approach with his weapon drawn, but that he drew his weapon after observing the revolver. It is at this point that the line of inquiry elevated the encounter from a Tier I "information inquiry" to a Tier IV "an independent and reasonable suspicion that he is in physical danger because the individual is armed". People v. David L. , 81 AD2d 893 . As the officer's approach was lawful, this Court finds that the Defendants' motions to dismiss the indictment based upon a lack of "probable cause" are without merit.
Further, this Court finds that the search, for officer safety, was warranted as to both Defendants. The observation of the revolver by Officer Acquino from his position outside Defendant Davis' vehicle and his access to the revolver clearly visible on the floor of that vehicle were lawful, thereby putting the officer's observations of the revolver within the "plain view" doctrine and provided the officers with probable cause to arrest the vehicles occupants. People v. Campbell , 98 AD3d 1310. A contemporaneous search of a person incident to a lawful custodial arrest is an exception to the warrant requirement. People v. Taylor , 294 AD2d 825. Such a search is lawful even if it occurs a couple of minutes before formal arrest. People v. Evans , 43 NY2d 160.
Officer Hamilton had probable cause to arrest Defendant Davis after observing the revolver at his feet. Contemporaneous with that arrest, Officer Hamilton lawfully searched his person, which yielded five live rounds of ammunition and cocaine. This Court further finds that Defendant Roland does not allege that he has standing to challenge the search of the vehicle and seizure of the handgun, and this Court confirms that, as a mere passenger in a parked vehicle, he has no standing to challenge the search of the vehicle as he was not charged under the statutory theory of constructive possession. People v. Taylor , 294 AD2d; People v. White , 232 AD2d 437. This Court further finds that the police may rely on the automobile presumption to provide probable cause to arrest as individual without automatically conferring status on that individual to contest the search of a vehicle on a subsequent prosecution not based on any statutory presumptions. People v. Tillman , 283 AD2d 944. In the case at bar, the theory of the People appears to be that Defendant Roland's possession of the loaded firearm took place as part of the sale of that firearm by Defendant Roland to Defendant Davis, not the automobile exception.
The observation of a firearm in a vehicle provides police officers with probable cause to arrest its occupants. People v. Verez , 83 NY2d 921. Accordingly, under the circumstances here, the actions of the officers in approaching, seizing and, ultimately, arresting and searching Defendant Davis and detaining and searching Defendant Roland, were reasonable and do not give rise to a basis for suppression on that point.
As to the set of oral statements, made post-Miranda , by Defendant Davis to Officers Acquino and Hamilton, the testimony of Buffalo Police Officer McDuffie that Officers Acquino and Hamilton were present when Officer McDuffie advised Defendant Davis of his Miranda warnings at the scene of the Defendant's arrest, while in the back of the officer's patrol vehicle is uncontroverted. The conversations of Defendant Davis with Officers Acquino and Hamilton took place after Officer Hamilton advised the Defendant of his Miranda warnings.
After hearing and considering all the testimony and other evidence admitted during the hearing and the arguments of counsel, this Court is of the opinion that the People have produced credible, trustworthy evidence and has sustained the burden to establish beyond a reasonable doubt that the oral statement Defendant Davis gave to the police was given voluntarily within the meaning of CPL Section 60.45 ; that Defendant Davis had no mental or psychological deficiency, and that he understood the English language; that no force, duress or promises were made to induce Defendant Davis' statement; that the Defendant Davis gave no indication that he was represented by counsel or wanted counsel, and that Defendant Davis was fully and fairly advised of his constitutional rights in full compliance with the requirements of Miranda v. Arizona , 384 U.S. 890, prior to making the oral statements. Defendant Davis then knowingly, intelligently and voluntarily waived his right to remain silent in speaking with Officers Acquino and Hamilton and giving the oral statements. People v. Miles, 115 AD2d 962 and People v. Love , 85 AD2d 998.
As to the set of oral statements, made pre-Miranda , by Defendant Roland to Officer Acquino, the People concede that Defendant Roland was subjected to custodial interrogation absent Miranda warnings when Officer Acquino asked him, at the crime scene,: (1) if he had anything to do with the gun, and (2) how much money he had in his pocket.
As to the set of written statements, made post-Miranda , by Defendant Roland to Detective Guilian, the testimony of Buffalo Police Detective Guilian that he advised Defendant Davis of his Miranda warnings at the "E" District Station is not only uncontroverted, but was confirmed by the testimony of Defendant Roland. The conversations of Defendant Roland with Detective Guilian took place after Detective Guilian advised the Defendant of his Miranda warnings.
After hearing and considering all the testimony and other evidence admitted during the hearing and the arguments of counsel, this Court is of the opinion that the People have produced credible, trustworthy evidence and has sustained the burden to establish beyond a reasonable doubt that the written statement Defendant Roland gave to the police was given voluntarily within the meaning of CPL Section 60.45 ; that Defendant Roland had no mental or psychological deficiency, and that he understood the English language; that no force, duress or promises were made to induce Defendant Roland's statement; that Defendant Roland gave no indication that he was represented by counsel or wanted counsel, and that Defendant Roland was fully and fairly advised of his constitutional rights in full compliance with the requirements of Miranda v. Arizona , 384 U.S. 890, prior to making the oral statements. Defendant Roland then knowingly, intelligently and voluntarily waived his right to remain silent in speaking with Detective Guilian and giving the written statement. People v. Miles, 115 AD2d 962 and People v. Love , 85 AD2d 998.
Therefore, upon the reading and the filing of the Notice of Motion together with the affidavit of Susan M. Karalus, Esq. dated June 3, 2015, in support of the motion; and the filing of the Notice of Motion together with the affidavit of Mary Beth DePasquale, Esq. dated May 22, 2015, in support of the motion; and the Answering Affidavit of the People, by Assistant District Attorney Eugene Partridge, Esq. dated June 11, 2015 and May 28, 2015, respectively, in opposition thereto, and all the evidence adduced at the hearing commenced on August 25, 2015, continued on September 1, 2015, and concluded on September 2, 2015, and having reviewed the Memoranda of Law submitted by both Defense Counsel and the People, and due deliberation having been had thereon, it is, hereby
ORDERED that the motions of both Defendant Davis and Defendant Roland for the dismissal of the indictment based upon a lack of "probable cause" for the stop of the Defendants' vehicle on November 2, 2014 are hereby DENIED , and it is further
ORDERED, that Defendant Davis' motion to suppress the physical evidence seized from the his vehicle, to wit: the small revolver is hereby DENIED , and it is further
ORDERED , that Defendant Davis' motion to suppress the physical evidence seized from his person, to wit: five live rounds of ammunition and cocaine, is hereby DENIED , and it is further,
ORDERED that Defendant Davis' motion for the suppression of the oral statements made to Officers Acquino and Hamilton on November 2, 2014, post-Miranda , is hereby DENIED , and it is further
ORDERED that Defendant Roland's motion for the suppression of the oral statements made to Officers Acquino on November 2, 2014, pre-Miranda , is hereby GRANTED , and it is further
ORDERED that Defendant Roland's motion for the suppression of the written statements made to Detective Guilian on November 3, 2014, is hereby DENIED.
This decision shall constitute the Order of the Court in this matter and no other or further Order shall be required.