Opinion
3598/18
08-09-2019
The PEOPLE of the State of New York, v. Devon ENGLISH, Defendant.
Assistant District Attorney Celina Guerra Defense Counsel: Jeremy Tinsley and Omar Saleem of Neighborhood Defender Services of Harlem
Assistant District Attorney Celina Guerra
Defense Counsel: Jeremy Tinsley and Omar Saleem of Neighborhood Defender Services of Harlem
Ann E. Scherzer, J.
Charged with Criminal Possession of Stolen Property in the Second Degree and other related charges for alleged possession of stolen checks, defendant moved for suppression of the checks at issue and of noticed statements made by the defendant prior to arrest, at the precinct and at the District Attorney's office (the ECAB statement). This Court held a Mapp/Huntley/Dunaway hearing to resolve defendant's motion. At the hearing, the People presented testimony of one witness, Police Officer Ryan Nelson (PO Nelson) and introduced a signed Miranda warning page in evidence. Defense introduced one video recording. The People withdrew notice of the ECAB statement before the hearing ended. Based upon the evidence adduced the Court makes the following findings of fact and conclusions of law.
Findings of Fact
As a member of the anti-crime unit at PSA 5, PO Nelson's shift on October 7, 2018 began at 3:00 p.m. PO Nelson was the driver of an unmarked police car heading west on 115th Street, accompanied by his partner Police Officer Gonzalez (PO Gonzalez). At about 7:00 p.m., PO Nelson observed a red Honda Accord approach a red light at the intersection of 115th Street and 5th Avenue, New York County, and roll over the thick white line marking the crosswalk while the light was red. Once the car was in the intersection, the light turned green and the car turned left on 5th Avenue. Because the car had rolled into the crosswalk while the light was red — thereby committing a traffic infraction — PO Nelson activated his lights, turned left and followed the Honda approximately four to five blocks until the car pulled over. PO Nelson then approached the driver's side of the car and smelled a strong odor of marijuana emanating from the car. PO Nelson asked the driver for his license which was provided and then asked the driver, "when was the last time anybody had smoked in the car." The driver responded that it had been 20-30 minutes earlier. PO Nelson looked in the car and saw that there were three occupants: the driver, a man in the passenger seat and the defendant in the back seat behind the passenger. PO Nelson called for backup and held the Honda until a second police car arrived, testifying that he intended to remove the occupants of the car and locate the source of the odor of marijuana.
Once a backup police car arrived, PO Nelson removed each individual occupant of the car and had them stand at the back of the Honda pending continued investigation. One of the officers determined that the owner of the car was a relative of the driver. Following that determination, the officers then searched the inside of the car and found "pieces of marijuana on the floor of the car on both sides" but were unable to determine if those pieces were the source of the odor. With no basis yet for an arrest, they continued searching for the existence of marijuana. The officers did not conduct any test for sobriety of the driver of the car nor did PO Nelson testify that their investigation included any screening for impaired driving. The pieces of marijuana seen by the officers were not recovered or vouchered nor was any other marijuana recovered during this encounter.
Although PO Gonzalez did not testify, PO Nelson testified that while he searched the front and back of the driver's side of the car, PO Gonzalez searched the passenger side. At some point, according to PO Nelson, PO Gonzalez opened a Nike satchel bag that was placed in the rear passenger seat of the car, directly where the defendant had been sitting. PO Nelson was unable to testify as to the condition of the bag when PO Gonzalez searched it, but he heard PO Gonzalez say, "he's got a lot of checks here." PO Nelson then saw that inside the Nike bag was a photo ID bearing defendant's picture as well as a manila envelope containing 148 checks made out to various individuals other than defendant.
PO Nelson called over the defendant from the back of the car and asked why he had the checks. At that point, none of the police officers had their guns drawn. Defendant replied that he worked for the post office downtown. PO Nelson asked the defendant why the checks were not in envelopes, and defendant then sped off, running between two of the officers, into 5th Avenue. The officers grabbed him, brought him back to the car, and placed him in handcuffs. PO Nelson testified that at that point they decided to "just release the car to the driver, because he wasn't under arrest" and focused on arresting the defendant. When asked why the defendant was placed under arrest, PO Nelson first testified that it was because defendant was "attempting to flee, resisting arrest" and obstructing governmental administration (p. 29) but later testified that it was for "possession of those checks" (p. 34). Marijuana was never the stated reason for the arrest.
Once the defendant was placed under arrest he was taken to PSA5 where he was interviewed by Detective Gomez from the Grand Larceny Division. Det. Gomez was not called as a witness, but PO Nelson testified that he was present for the interview and based on his recognition of and his own signature on a Miranda Warning page signed by the defendant, that document was admitted in evidence. The document indicates that the defendant was advised of and waived his Miranda rights. PO Nelson testified that he had no independent memory of the interview Det. Gomez conducted of the defendant; neither the questions nor the answers. However, upon reviewing a DD5 prepared by Det. Gomez, PO Nelson testified that his recollection of the interview was refreshed. PO Nelson then testified that the defendant told Det. Gomez that the "driver of the vehicle was somebody that purchased these checks from another male named Black I believe, and that the driver of the vehicle handed [the defendant] the envelope and told him to hold onto it." (p. 39).
On his case, defendant introduced a videotape of his own arrest taken by a bystander. The video depicts an aggressive arrest in which three officers mounted the defendant and an unnamed police officer punched defendant a minimum of 14 times while he was lying on the ground being handcuffed. (Defense exhibit A).
Conclusions of Law
Defendant argues that the stop of the Honda by the police as well as the search of the satchel within the car was illegal requiring suppression of the seized checks and ID. The People oppose that motion on two grounds. First, they contend that defendant lacks standing to challenge the stop or search of the car or any container therein since it was the driver, rather than he, who had a possessory interest in the car. As a mere passenger, according to the People, defendant had no expectation of privacy with respect to the car or its contents. Second, the People argue that the stop of the car was lawfully premised on the observation of a traffic infraction, and that the smell of marijuana emanating from the car justified removal of its occupants, and a search of the car and any containers in it, under the automobile exception to the warrant requirement. With respect to the noticed statements, defendant argues that they must be suppressed as the fruits of an illegal arrest and because they were involuntary.
Motion to Suppress Property
At a Mapp/Dunaway hearing where a defendant challenges the legality of a search and seizure, the People have the initial burden of establishing the legality of the police conduct. Once the prosecution has met this burden, the defendant has the ultimate burden to establish the illegality of the police conduct by a fair preponderance of the evidence. People v. Berrios , 28 NY2d 361, 367 (1971) ; People v. Malinski, 15 NY2d 86 (1965) ; People v. Clough, 70 AD3d 474 (1st Dept. 2010). While finding PO Nelson's testimony credible, the Court finds that the People did not meet their burden at the hearing.
Standing
The People correctly note that a passenger does not automatically have standing to challenge the stop or search of a car in which he was riding and that "automatic standing" has only been extended to mere passengers when they are charged with a possession of an item found in that car under a theory of statutory presumption; a circumstance that does not apply here. People v. Millan, 69 NY2d 514, 518-19 (1987) ; People v. King, 159 AD2d 306 (1st Dept. 1990). But that does not mean that a passenger never has an expectation of privacy in a car that does not belong to him, or in his own items situated within the car. That determination depends on the particular circumstances presented.
As dictated by the Court of Appeals in People v. Ramirez-Portoreal, 88 NY2d 99, 108 (1996), a legitimate expectation of privacy exists in a container "where the defendant has manifested an expectation of privacy that society recognizes as reasonable." To determine if the defendant had standing to challenge the search of a container, a court must "identify the object of defendant's expectation of privacy" and then conduct both a subjective and an objective test. First, did defendant subjectively believe himself to have an expectation of privacy in the object, and second, on an objective level "would these circumstances lead society to regard defendant's expectation as reasonable." Id., at 109. If the court "determines that the defendant had a legitimate expectation of privacy in the item searched, standing to challenge the legality of the police conduct is established." Id; see also People v. DeLaCruz, 242 AD2d 410, 412 (1st Dept 1997).
On these facts, the Court agrees that defendant has no standing to challenge the car stop and, in any event, that the police properly stopped it after observing a traffic infraction. On the other hand, the Court finds that the defendant did have a subjective expectation of privacy in what was clearly his personal bag and the manila envelope within it. Not only does he claim so in his moving papers, but the satchel was found in the exact area of the car where the defendant had been sitting before he was ordered out of the car. Moreover, an expectation of privacy in one's personal bag is objectively reasonable. See generally, People v. Ramirez-Portoreal, 88 NY2d at 111-114 ; People v. DeLaCruz, 242 AD2d at 412-413. Particularly so, in this Court's view, when a defendant has been ordered out of a car for a traffic infraction that he did not commit. Accordingly, the court finds that while lacking standing to challenge the stop of the car, defendant had an expectation of privacy in his personal satchel and therefore standing to challenge the validity of its search.
Search of the Satchel
Turning to the propriety of the search of defendant's satchel and the envelope within, the Court rejects the People's position that it was a proper exercise of the automobile exception to the warrant requirement. The automobile exception authorizes the search of a car and containers within when the occupant is arrested and where the circumstances that created probable cause for that arrest also gave them probable cause to believe that the vehicle contains contraband, evidence of a crime, a weapon or some means of escape. People v. Blasich, 83 NY2d 673, 678 (1989); People v. Cruz, 7 AD3d 335 (1st Dept. 2004) (automobile exception justified search of closed containers within a car where there was probable cause to arrest defendant for a drug sale); People v. Dixon, 107 AD3d 530 (1st Dept. 2013) (closed container within car properly searched for evidence of the robbery for which defendant had been arrested); People v. Parker, 50 AD3d 603, 604 (1st Dept. 2008).
Here, the People failed to meet their burden of demonstrating the propriety of the search of the defendant's satchel under the automobile exception, as this search occurred independent of any arrest. As PO Nelson made clear in his testimony, the actual arrest of the defendant was either for resisting arrest and obstructing governmental administration or for the checks, both of which occurred AFTER the search of the bag. There was no evidence that the arrest was related to marijuana; in fact, when alleged marijuana was seen prior to the search of the satchel, it was not removed from the car nor were any of the occupants arrested for its possession or investigated for impaired driving. These facts undermine the People's claim that the automobile exception applies.
The Court further notes that any arrest for simple possession of marijuana without any additional criminal conduct such as impaired driving would have been contrary to the NYPD policy that had gone into effect on September 1, 2018, calling for the issuance of a summons rather than an arrest for the B misdemeanor of smoking marijuana in public; surely arrests for simple possession of marijuana, a violation, were no longer to be effectuated. Of course, the automobile exception does not permit the police to search the car or any containers therein when the driver will be issued a summons, rather than placed under arrest. People v. Aquino, 119 AD2d 464, 465 (1st Dept. 1986).
Notably, the cases cited by the People differ in significant ways from the facts presented here. Unlike this case, People v. Franklin, 137 AD3d 550 (1st Dept. 2016), involved the search of a vehicle, not a closed container, and the search did accompany an arrest. In People v. Rivera, 127 AD3d 622 (1st Dept. 2015), defendant was arrested before the search of the car, and the search of a separate container was specifically justified because of its specifically described suspicious nature. People v. Smith , 66 AD3d 514 (1st Dept. 2009) also validated the search of a car that occurred after the defendant was seen and arrested for selling drugs. Additionally, all these cases preceded the NYPD marijuana policy which, in this Court's opinion, changes the analysis of car searches based upon nothing other than the odor of marijuana.
Motion to Suppress Statements
The People seek to introduce two statements made by the defendant. The first is the answers given to PO Nelson at the scene of the car stop. At that point defendant was being held by the police but had not yet been arrested. PO Gonzalez had opened found a stack of checks, PO Nelson asked the defendant why he had the checks. The second took place at the police precinct after defendant was advised of and waived his Miranda warnings. The People contend that the first statement was not the result of custodial interrogation but instead was made in response to routine questioning by the police as part of a traffic stop. They further assert that they met their burden of proving that the precinct statement was voluntary. See People v. Thomas, 22 NY3d 629, 641 (2014).
Based on the detailed analysis supplied above, the Court notes that each statement followed and was the direct result of an improper search of the defendant's property. Without the warrantless search of the defendant's bag, no checks would have been found at that time and the defendant would not have been questioned about them, arrested, or questioned again at the precinct. These statements must be suppressed as the product of unlawful police activity. As such, the Court need not reach the issue of the voluntariness of the statements made at the precinct.
Conclusion
The police exceeded their authority in searching defendant's satchel and the envelope within it, intruding into his private possessions without a warrant. This search falls outside the bounds of the automobile exception as it did not follow or occur as part of an arrest. Indeed, nobody including the driver of the car was investigated or arrested for a marijuana or impaired driving related offense despite PO Nelson's testimony that the search was to determine the source of the odor of marijuana. That goal does not justify the intrusion that occurred here, and the subsequent arrest based on that search is therefore found to be unlawful. Because the statements took place after and as a direct result of the unjustified search of the satchel, the statements are also suppressed. The totality of the evidence, including the videotape introduced by the defendant, demonstrate an unnecessarily aggressive escalation of a simple traffic stop that was not legally justified.
The People did not argue that the search fell under any other exception to the warrant requirement nor can the Court envision one that would encompass this search as the satchel was not within reach of the defendant or any of the car's occupants when it was searched, negating the validity of it being searched for a weapon.
Defendant's motion to suppress the property recovered from defendant's satchel as well as evidence of his statements is granted in its entirety.
This shall constitute the decision and order of the Court.