Opinion
10070-03.
Decided July 14, 2004.
ANTHONY MOLEA, ESQ. Assistant District Attorney New Rochelle Branch New Rochelle, NY.
JAMES M. LENIHAN, ESQ. Lenihan Tilem White Plains, NY, Attorney for Defendant.
Defendant Angelina Estrada ("Defendant" or "Estrada") is charged with the offense of petit larceny (Penal Law Section 155.25). At Defendant's request and as agreed to by the People, a combined Mapp/Huntley/Dunaway hearing was held on March 2, 2004 and continued to conclusion on March 9, 2004. The arresting officer, Detective Lonergan, his partner Detective Danko and Police Officer Navarette were the sole witnesses at the hearing. As a result of the hearings, the Court makes the following findings of fact and conclusions of law.
This case revolves around the alleged theft of a $100.00 bill by Defendant, a part-time housekeeper, from her employer's apartment. The Mapp aspect of the hearing concerned Defendant's effort to suppress the $100.00 bill itself, which was found in Defendant's pocketbook after Defendant was stopped by police, briefly questioned, and asked to consent to a search. The recovery of the $100.00 bill allegedly provided the police with probable cause to make the arrest. The Huntley/Dunaway aspect of the hearing concerned whether the police in fact had probable cause to arrest Defendant, and whether statements made by Defendant after such arrest should be suppressed.
The overriding issues, however, dispositive of both hearings, are whether the stop and the questioning of Defendant — including the police request that she consent to a search — were justified, and whether the People have sustained their burden of proving that her alleged consent to search was voluntary and effective. Because the Court finds the answers to both questions to be in the negative, the arrest was without probable cause, the $100.00 bill is suppressed and no statements made by Defendant may be used by the People at trial.
THE FACTS
Defendant was a part-time cleaning person/housekeeper for the alleged victim, Angela Dipilato; Defendant regularly cleaned Ms. Dipilato's apartment in New Rochelle. In late summer, 2003, Ms. Dipilato suspected that money, jewelry and other valuables were being stolen from her apartment, and she filed a police report. She advised the police, specifically the investigating officer, Detective Lonergan, that she initially suspected her son or boyfriend — both of whom had access to her apartment — but had now settled on Defendant Estrada as her prime suspect. Shortly thereafter, on the afternoon of September 16, 2003, Detectives Lonergan and Danko met Ms. Dipilato in her apartment and, in effect, baited a trap for Defendant. Ms. Dipilato advised the detectives that Defendant would be cleaning her apartment the next day, so she and the detectives strategically placed pieces of jewelry and currency at various locations in the apartment, including a $100.00 bill that was placed, folded, on the kitchen floor. The detectives recorded the serial number of each bill, including such $100.00 bill. The detectives then left the apartment in the late afternoon of September 16.
On September 17, 2003, Detectives Lonergan and Danko returned to the area, specifically to the street in front of Ms. Dipilato's building. There they waited in their police vehicle with Ms. Dipilato's boyfriend, Robert Swanson, who claimed that he knew Defendant by sight and could point her out to the detectives. Defendant arrived and entered Ms. Dipilato's building at approximately 11:00 AM and was observed leaving the building approximately 90 to 105 minutes later. Significantly, at no time did the detectives or any witness called by the People observe Ms. Estrada enter Ms. Dipilato's apartment, and at no time prior to Defendant's arrest did any person enter the apartment to determine whether any items had been taken from it.
Shortly after Defendant exited the apartment building and while she was still in front of it, the detectives approached her, and Detective Lonergan identified himself and Detective Danko as police officers. Detective Lonergan engaged Defendant in conversation, told her that they were investigating a theft of jewelry, and asked if she had any stolen jewelry. She said no. Detective Lonergan then asked Defendant for permission to search her handbag, and she handed her bag to him. Detective Lonergan testified that Defendant spoke broken English, but he believed that she understood what he was saying. Detective Lonergan then searched Defendant's bag, found the $100.00 bill at issue, and promptly placed Defendant under arrest.
Detectives Lonergan and Danko then drove Defendant to police headquarters, where she was read her Miranda rights in Spanish and then interrogated with the assistance of a Spanish speaking police officer, Officer Navarrette. At the station house, she made several contradictory statements seeking to explain her possession of the bill which, by dint of their number and facial inconsistency, the People consider inculpatory and which Defendant moves to suppress.
DISCUSSION AND CONCLUSIONS
The initial issue facing the Court is whether, upon Defendant's exit from the apartment building, Detective Lonergan had the right to stop her and ask her whether she possessed any stolen jewelry and, more importantly, whether she would consent to a search of her handbag. More technically stated, did the detectives at that time have sufficient facts so that the second DeBour threshold — the right not only to stop but to make a more searching "common law" inquiry as well — could be crossed? ( People v. DeBour, 40 N.Y.2d 210 (1976)). When asked why he had approached Defendant in the first place, Detective Lonergan testified that he did so because she was a suspect in a larceny. Indeed, the premise underlying the People's entire argument was succinctly stated in the People's post-hearing memorandum: "[W]hen the police approached defendant, they had founded suspicion that the defendant committed a larceny." However, the facts as testified to by Detective Lonergan appear to contradict the People's assertion.
At the time Defendant was stopped, no one knew, or could have reasonably supposed, that a larceny had been committed. Indeed, no one even knew whether Defendant had been in Ms. Dipilato's apartment; she had been observed entering and leaving Ms. DiPilato's building, nothing more. The fact that Ms. Dipilato suspected Defendant of a past theft — along with her son and boyfriend — does not infuse the police with the requisite knowledge or even a "founded suspicion" with respect to this particular incident on September 17, as charged in the information. Had an officer, or for that matter, Mr. Swanson gone into the apartment, opened the door and found an item to be missing before Defendant was stopped, then clearly, the prerequisite to the DeBour common law right of inquiry would surely have been met. Failing that investigative conduct, the detectives were in a similar position to the police in the Court of Appeals case of People v. Hollman, 79 N.Y.2d 181 (1992), relied upon by Defendant.
In Hollman, the Court of Appeals held that the contents of a bag searched by the police pursuant to a consent search should have been suppressed. The court held that although the defendant's furtive behavior may have triggered the first stage of DeBour — the right to approach a defendant and ask rudimentary questions, such as identity and address — it was "certainly not so suspicious as to warrant the further intrusion of a request to rummage through defendant's luggage". As the Hollman court stated:
"No matter how calm the tone of narcotics officers may be, or how polite their phrasing, a request to search a bag is intrusive and intimidating and would cause reasonable people to believe that they were suspected of criminal conduct. These factors take the encounter past a simple request for information."
Id. at 191-192. See also, People v. Fields, 257 A.D.2d 387, 389 (1st Dept. 1999). ("[T]he question of whether anyone asked defendant to carry anything on the bus for him was improper because at the time the officer asked it, he lacked a founded suspicion that criminal activity was afoot . . . The officer's inquiry went beyond a permissible inquiry such as to whether an individual had brought any luggage on to the bus or whether he had checked the bag . . . The fact that the defendant appeared to become nervous and began to sweat did not provide a basis for a more elevated level of intrusion on the part of the officer."); People v. Berberena, 264 A.D.2d 670 (1st Dept. 1999); People v. Boyd, 188 A.D.2d 239 (1st Dept. 1993); People v. Heredia, N.Y.L.J. April 30, 2004 at p. 196 (Sup.Ct., Bronx Cty. 2004).
Accordingly, the Court in Hollman held that in order to permit questioning to go beyond the most basic of inquiries, the police must have a "founded suspicion" of criminal activity. A more searching "common law" inquiry of defendant by the police was not justified in Hollman because the police acted on supposition, not reasonable suspicion.
In the instant case, like Hollman, the detectives knew only that Defendant had entered and left Ms. Dipilato's building and that Ms. Dipilato suspected her along with others of prior thefts from her apartment. In light of the principles articulated in Hollman, DeBour and their progency, the issue of whether the detectives, at the time Defendant was questioned, had a "founded suspicion that defendant committed a larceny" is, at best, problematic.
The People seek to use Defendant's alleged consent as a cure-all for the conduct of the police, arguing, in effect, that Detective Lonergan merely posed an innocuous question — "can I look in your handbag" — and Defendant registered her consent by handing it to him. Consent, however, under the facts of this case, is not a magic elixir. Even addressing the issue of consent begs the question of whether the police had the right to stop defendant and ask her permission to search her handbag, as indicated above. Whether the police had that right is doubtful at best.
Indeed, Justice Bamberger of Supreme Court, Bronx County, citing Hollman, recently ordered the suppression of items seized as a result of a consent search because a "consent to search based upon a common law inquiry asked without the requisite founded suspicion is not voluntary." People v. Heredia, N.Y.L.J. April 30, 2004 at p. 19 (Sup.Ct., Bronx Cty.). In Heredia, the police stopped a vehicle upon observing that the level of tint in its windows was in excess of the tint permitted under the Vehicle and Traffic Law. Once stopped, the police asked for and checked the driver's license and registration and ran a computer check. No other violations were found. The police also ran a warrant check on Heredia, who one officer thought he recognized from a warrant poster at his precinct, but no warrants or warrant cards came up on the computer. Nonetheless, an officer asked Heredia if there were any drugs or weapons in the car, which Heredia denied, and then asked Heredia in English, and another officer asked in Spanish, for permission to search the car. Heredia agreed. Cocaine was found and defendant Heredia and other occupants of the vehicle were arrested.
In holding that the evidence seized should be suppressed, the Heredia court, relying on Hollman, reasoned that while the initial stop and preliminary questioning may have been justified, the subsequent police conduct — including their request for a consent to search — was not and therefore the consent was not voluntarily given. As the court stated:
"In Hollman, the Court had already set out what action the police could take when they had an objective credible reason to ask questions, but did not have information necessarily indicative of criminal behavior or a reasonable suspicion to to believe that a person was involved in criminal conduct. An officer can request information using basic, nonthreatening questions regarding identity, address or destination. On the other hand, a founded suspicion that criminal activity is afoot is needed for common law inquiry that involves more pointed questions reasonably leading the person being questioned to believe that he or she is suspected of some wrongdoing and is the focus of the officer's investigation. People v. Hollman, 79 N.Y.2d at 191-92; People v. DeBour, 40 N.Y.2d 210, 213 (1976). Thereafter, if the officer has an appropriate basis for doing so, he or she may ask to search a suspect's belongings. However, a consent to search based upon a common law inquiry asked without the requisite founded suspicion is not voluntary. People v. Hollman, 79 N.Y.2d at 194".
Id. (emphasis supplied).
Thus, in the instant case, as in Heredia, Defendant Estrada's consent was not voluntarily given since the detectives lacked the requisite basis for a "common law inquiry" under DeBour and Hollman. Moreover, even assuming, arguendo, that Detective Lonergan was entitled to stop Defendant and make a request to search, the voluntariness of Defendant's consent — separate and apart from the propriety of asking for it in the first place — is also subject to question. It is axiomatic that to be effective, any consent to search must be given knowingly, voluntarily, and must not be the product of coercion, direct or indirect. See People v. Gonzalez, 39 N.Y.2d 122 (1976). As the Court of Appeals (Breitel, Chief Judge) stated in Gonzalez,
"Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle . . . As the Supreme Court stated in Bumper v. North Carolina ( 391 US 543, 550), "Where there is coercion there cannot be consent".
Id. at 128.
The determination of voluntariness turns upon all the facts and circumstances of the case, including the personal background and experience of the defendant. As Chief Judge Brietel articulated:
"No one circumstance is determinative of the voluntariness of consent. Whether consent has been voluntarily given or is only a yielding to overbearing official pressure must be determined from the circumstances."
. . .
"Another factor to be considered in determining the voluntariness of an apparent consent is the background of the consenter. A consent to search by a case-hardened sophisticate in crime, calloused in dealing with police, is more likely to be the product of calculation than awe. Here, the Gonzalezes were both under 20 years of age and were newlyweds of three days. They had had very limited prior contact with the police. Under these circumstances, the ineluctable inference, except to the jaded, is that the consents could not be, on any creditable view of the agents testimony, the product of a free and unconstrained choice".
Id., at 128-129. (citations omitted).
In the instant case, the facts and circumstances surrounding Defendant's consent, when analyzed, call the voluntariness of it into serious question. Estrada is not a United States citizen and a review of her rap sheet reveals no prior contact or experience with the criminal justice system. As Detective Lonergan effectively acknowledged, Defendant has, at most, a minimal knowledge of English; she was perceived by the detectives as needing a Spanish interpreter to read the Miranda rights to her, and to communicate with the detectives at the police station. When she was stopped by the detectives, they effectively blocked her path, and despite the detective's statement that she was free to go, she was not advised of that option so that a reasonable person in her position may well have concluded otherwise. Her lack of, or at best minimal verbal response when asked for permission to search her handbag — she handed it to Detective Lonergan — lends further credence to the view that she may well have perceived the request as a command with which she had no choice but to comply.
Under all of these circumstances, "the ineluctable inference, except to the jaded" is that Defendant's consent — in reality, her arguably equivocal act of handing her pocketbook to Detective Lonergan — did not bear the requisite hallmarks of a "free and unconstrained choice." People v. Gonzalez, 39 N.Y.2d at 128, 129. See also, People v. Matta, 76 A.D.2d 844 (2nd Dept. 1980). Thus, the consent search on which the People rely was not voluntary, both for this reason and for the underlying reason that the detectives did not have the right to ask for it in the first place.
CONCLUSION
For all the foregoing reasons, this Court finds that the People have failed to sustain the burden of proving the voluntariness of Defendant's consent to search by clear and convincing evidence. Accordingly, the $100.00 bill found in the Defendant's handbag is suppressed. Without such evidence, the police lacked probable cause for the arrest, so that any statements made by Defendant after her arrest fall of their own weight and are also suppressed.
The case is calendared for July 30, 2004 at 9:30 a.m.
The foregoing constitutes the Decision and Order of this Court.