Opinion
2124/17
04-16-2019
The PEOPLE of the State of New York, Plaintiff, v. Andre GOETHE, Defendant.
For the defendant, Breanne Chappell, The Bronx Defenders, 360 East 161 Street, Bronx, NY 10451, 718-838-7851 For the People: A.D.A. Mary Rebecca Clancy, Bronx County District Attorney's Office, 198 East 161 Street, 718-838-7480
For the defendant, Breanne Chappell, The Bronx Defenders, 360 East 161 Street, Bronx, NY 10451, 718-838-7851
For the People: A.D.A. Mary Rebecca Clancy, Bronx County District Attorney's Office, 198 East 161 Street, 718-838-7480
David L. Lewis, J.
This matter came before the Court for a combined hearing under Dunaway v. New York , 442 US 200 (1979) ; People v. Huntley , 15 NY2d 72 (1965) ; Mapp v. Ohio , 367 US 643 (1961) ; and People v. Ingle , 36 NY2d 413 (1975).
This matter turns on the constitutional propriety of the questioning of the defendant as to whether he has "anything he should not have" at the conclusion of a routine traffic stop for running a red light on an unlicensed motorized scooter.
Based upon the facts and the proper application of the principles of People v. DeBour , 40 NY2d 210 (1976), and People v. Garcia , 20 NY3d 317 (2012), the police officers' actions in detaining the defendant after a stop for a traffic violation was inconsistent with the law and the New York State Constitution which seeks to protect our citizens on their streets and in their public places from being questioned by anti crime officers where there is no basis for and no individualized suspicion of wrongdoing.
FINDINGS OF FACT
The People called a single witness, Police Officer Mark Mobarek of the 42nd Precinct. The Court finds Officer Mobarek credible in all respects. Officer Mobarek is an anti crime officer since November of 2018, whose role is to patrol in his words "looking for violent people and trying to stop crime from happening." In the time as an officer he has made approximately 140 arrests and even more numerous traffic stops. Only one of those arrests involved possession of a firearm but he has assisted in between seven to ten firearms arrests.
On August 27, 2017, he was working in uniform as the driver of a marked patrol car. His partner Police Officer Dennis Vargas was the recorder, sitting in the passenger seat of the car. At the intersection of East 163rd Street and Third Avenue in the Bronx, Officer Mobarek observed Mr. Goethe on a single seat motorized scooter without license plates in traffic on the public road. Mr. Goethe was not wearing a helmet. At 6:07 pm, the officer then observed Mr. Goethe turn onto Boston Road disobeying a steady red light.
Based upon the commission of a traffic violation, Officer Mobarek pulled Mr. Goethe over. The officers approached him from either side. The entire interaction was recorded on the videos from the two officers' body cameras which were placed in evidence as People's Exhibit 3.
Reviewing the body cam videos, Mr. Goethe appeared calm and made no attempt to flee. He exchanged polite banter with the officers and answered their preliminary questions; he was not evasive or hostile. He exhibited no furtive gestures; he did not avoid eye contact with the officers. His hands remained at his sides and his feet remained planted on each side of the scooter. Any movement of Mr. Goethe's arms were only when instructed to do something by one of the officers, such as to lower his music, or when he was asked for identification and he reached into his wallet for such.
In the hearing testimony, Officer Mobarek testified that he told Mr. Goethe why he stopped him and then he asked for identification which he provided. The police then did a computer check to see "who he is, who we're dealing with...and assess our situation that we had at hand" (Tr. 11). The officer testified that they were using their cell phones to check Mr. Goethe's history to see what he's been arrested for to show what we're dealing with for our safety and his safety as well.
There was no evidence of any return on the cell phone checks. The People in their papers claim that the officers had knowledge of Mr. Goethe's "history of prior arrests" (People's Memorandum of Law p. vi). This is a case in which this Court received no evidence of such arrests. The Court deplores the People attempting to sneak into the hearing record exactly what they failed to prove at the hearing. The record reads that they looked up Mr. Goethe to determine if he had any prior arrests. According to the record, there was not any evidence of prior arrests and if there was the People utterly failed to put it before the Court. The Court finds that the claim of proof of prior arrests is misconduct given that the People twice tried to reopen the hearing and in the process filed a motion without citing the leading Court of Appeals case that denied them the relief sought. (See this Court's prior unpublished decision of March 25, 2019).
They further claim that Mr. Goethe's "conciliatory interaction" also gave them a founded suspicion. As evidenced by the body cam evidence, Mr. Goethe was informed that he needed to wear a helmet to ride the scooter and he needed to register it with the DMV. Further he was told that he needed a valid driver's license and not just an identity card. Mr. Goethe is heard apologizing to the officers. After about half a minute the defendant then stated after silence by both the officers and the defendant that he knew he should have a driver's license but he could not afford to acquire one. The officer then repeated that the scooter had to be licensed. Mr. Goethe then acknowledged he couldn't drive it and would return the scooter to his home when they were done here. The officer told Mr. Goethe they were still checking him in the system. After a silence, Mr. Goethe said that not that he knew from a co-worker that he should have gotten a license and registered the scooter, as the People represent, but rather that he thought it was "bullshit." The officer asked Mr. Goethe where he worked and he answered the officer and again the officer told Mr. Goethe he needed a license and registration. The officer said that he could return home with the scooter depending on what the database check turned up.
The officer explained again that since it had a motor the scooter had to be registered and the defendant agreed. Mr. Goethe then said that he thought only motorbikes needed registration and the officer repeated that registration was required for everything. The defendant repeated the statement, and then made some reference to the speed of motorbikes. Clearly Mr. Goethe's acts and responses were consistent with an absence of a founded suspicion for anything criminal or illicit. A conciliatory attitude is to be desired, and not a basis for suspicion. This claimed basis is disingenuous.
There was no objective evidence that there was any safety issue regarding Mr. Goethe. There was no evidence that the area was a high crime area. The evidence was that the area was well lit and that the time of day held no inherent dangers. Specifically the officer did not testify that such a concern actually existed. Officer Mobarek's testimony suggested that this was a routine traffic stop. The body cams' footage shows that there were no efforts made to write up the traffic ticket. Mr. Goethe patiently waited for the traffic ticket to be written.
While Mr. Goethe was waiting for the officers to write a traffic summons, which they appeared on the body camera videos to make no effort to do, Officer Mobarek's partner randomly asked Mr. Goethe whether he had anything on him that he shouldn't have.
The People claim that Officer Vargas "immediately after he examined something displayed on his cellular phone [then] asked defendant whether he had anything on his person that he should not have" (People's Memorandum of Law x). This is the second instance of misconduct, attempting to insert into the record a fact not in evidence. First, the officer cannot be seen in the body cam footage when he suddenly asks the question. Second, the fact not in the evidence is represented as true and occurring in the affirmation of the Assistant District Attorney at p. 6. There is no evidence from Officer Vargas in the record because the People tactically decided not to call him as a witness. Nowhere in the testimony of Officer Mubarak is this fact. The People cite the body cam footage but this Court could not find that evidence on the exhibit submitted, and the People must know that from viewing the footage. There is no way to see what Vargas did or did not see since we cannot see him or his cell phone or its screen.
There was no basis for the question to be asked of Mr. Goethe. In response to the question being posed twice, Mr. Goethe told the officer that he had a narcotic on him. They then asked him to present it to them which the defendant did. The officers "continued" to check his "history". The police did not discuss the need for a Desk Appearance Ticket ("DAT"). The officer told him that he was to go to the precinct with them for a desk appearance ticket and he'd be let out as soon as they were done processing him.
The Court specifically rejects the operatic version of the events after Mr. Goethe answered the police questions. Mr. Goethe then began to beg the officers not to take him to the precinct. During this period the defendant removed his hat and wiped sweat from his head. He did not want to go to the precinct. Then he stated that he messed up and repeated it again in response to Officer Vargas asking him what he meant by that. Then Officer Vargas asked Mr. Goethe, "Do you have a gun on you?" He answered that he did. Officer Mobarek asked him where the gun was. Mr. Goethe answered that it was in his waistband on the right side. Officer Mobarek went to the right side of Mr. Goethe and grabbed his right arm. Officer Vargas grabbed his left arm, placed him in handcuffs and removed him from the scooter. When they stood him up beside the scooter, Officer Vargas took the gun from Mr. Goethe's waistband. It was determined that the gun was loaded with nine cartridges in it.
At approximately 6:08 pm at Boston Road and East 196th Street the officers made an arrest of the defendant. Mr. Goethe's statement began at 7:57 pm. The defendant was removed to the station house. He was interviewed by a detective in the presence of Officer Mobarek. Mr. Goethe was provided with a full set of properly given Miranda v. Arizona , 384 US 436 (1966) rights. Although it appeared that the initial reading of the rights had some ambiguity, it was cleared up.
Based upon this Court's determination that the detention beyond the traffic stop was illegal, all items and statements are suppressed as fruits of the poisonous tree. Wong Sun v. U.S. , 368 US 817 (1961) The Court further finds that there would not have been inevitable discovery of either the narcotic or the weapon.
CONCLUSIONS OF LAW
The People have the burden of proof in a suppression hearing to present evidence of probable cause to show the legality of the police conduct. People v. Baldwin , 25 NY2d 66 (1969). Only then does the burden shift to the defense to prove illegality of police conduct. People v. Berrios, 28 NY2d 361 (1971). In this matter viewed in the light most favorable to the People, the People failed to present sufficient evidence that the police conduct in the entirety of the stop was lawful given its escalation through the stages of the encounter.
Prior to an arrest, justifiable police intrusion upon a citizen in a public place is of three levels. Police, in a first level encounter, may approach civilians to request information when there is some objective credible reason for that interference not necessarily indicative of criminality. The common-law right to inquire, or the second level, allows police to interfere with a citizen's freedom, short of seizure, "to the extent necessary to gain explanatory information," provided the police have a founded suspicion that criminal activity is afoot. People v. DeBour, 40 NY2d 210, 223 (1976).
While valid traffic related issues are widely regarded as the less intrusive level one inquiry ( People v. Ocasio, 85 NY2d 982 [1995] ; see People v. Hollman, 79 NY2d 181 [1992] ), the common-law right to inquire focuses on the citizen as a suspect and whether there is "founded suspicion that criminal activity is afoot" DeBour, 40 NY2d at 223. Courts have described this level two inquiry as one that closes in on a defendant as a "suspected law breaker" ( Matter of Antoine W., 162 AD2d 121, 122 [1st Dept 1990], affd 79 NY2d 888 [1992] ). Although this level of intrusion entitles an officer to interfere with a citizen "to the extent necessary to gain explanatory information," it may not involve a forcible stop and seizure. DeBour, 40 NY2d at 223 ; see also Hollman , 79 NY2d at 181 ; Matter of Wesley M., 195 AD2d 350 (1st Dept 1993), affd 83 NY2d 898 (1994).
Under a level three intrusion, however, the focus is not simply whether there is a founded suspicion of criminal activity, but whether there is reasonable suspicion that a certain individual is believed to be involved in such criminal activity. DeBour, 40 NY2d at 223. Reasonable suspicion exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was (or is being) committed and that such person committed it. CPL 70.10 (2) ; People v. Cantor, 36 NY2d 106, 112-113 (1975).
Thus, before a person may be stopped in a public place, a law enforcement officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime. CPL 140.50(1). The officer must be able to state the specific and articulable facts reasonably prompting that intrusion; mere vague or unparticularized hunches are insufficient. United States v. Cortez, 449 US 411, 417 (1981) ; Terry v. Ohio, 392 US 1 (1968).
Unlike the common-law right of inquiry, a level three intrusion is indeed a forcible stop and constitutes a seizure "(w]henever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action" Cantor, 36 NY2d at 111 ; see also People v. Martinez, 80 NY2d 444, 447 (1992).
In the instant case, the detention of Mr. Goethe, who was admittedly by the police not free to leave when they stopped him for a traffic violation, is a second level intrusion. It is at this level that the police asked Mr. Goethe if he had anything that he should not have. This questioning in the absence of any basis to believe that further criminality, other than the running of red light on a non licensed vehicle, is afoot is an unconstitutional intrusion.
At each stage of an encounter, the level of police intrusion must be justified by the factual basis leading to it. People v. Grunwald, 29 AD3d 33 (1st Dept), lv appeal denied 6 NY3d 848 (2006). Here the intrusion occurred prior to the encounter ever reaching the third level. The third level, activated when the police have reasonable suspicion that a person has committed, is committing or is about to commit a felony or misdemeanor, allows a forcible stop and detention of that person.
Vehicle stops are governed by the same DeBour standards. As a general matter the decision to stop a vehicle is reasonable where the police have probable cause to believe that a traffic infraction has occurred. People v. Robinson, 97 NY2d 341, 354 (2001) ; People v. Guthrie, 25 NY3d 130, 133 (2015). People v. Garcia , 20 NY3d 317 (2012), falls at the intersection of Robinson and DeBour . The Court found that the DeBour formulation applies to vehicle stops in the same fashion as street encounters. Further, it is clear that valid traffic related stops are widely regarded as less intrusive level one inquiries. People v. Ocasio , 85 NY2d 982 (1995). In this instance the police officer who asked Mr. Goethe the question did not have a founded suspicion of criminality as to Mr. Goethe. In fact such a suspicion was completely lacking. Garcia, 20 NY3d at 324.
Here with no founded suspicion, the questioning and detention for the question was not reasonable. Garcia makes it clear that a traffic stop alone is no basis for the police to ask about weapons. The question of having anything he should not have is a question about criminality and is prohibited in the absence of a reasonable suspicion. Officer Mobarek and the body cam videos make it clear that between the time of the stop and the production of the narcotic, the police had no reasonable suspicion that criminality was afoot. Nothing they received in terms of the information from their database was alleged to have given Officer Vargas any new or different information. Garcia, 20 NY3d at 317. Not a single additional piece of information emerged while Mr. Goethe waited for the traffic summons to be written and issued. People v. Edwards, 14 NY3d 741 (2010) ; see e.g. People v. Alkabeeli, 48 Misc 3d 681, 686 (Crim Ct, NY County 2015). Once the traffic stop was completed no other information gave the police any reason to prolong the detention or question Mr. Goethe beyond the appropriate DeBour level. A vehicle stop by police is a DeBour level 3 seizure. See People v. Ocasio, 85 NY2d 982, 984 (1995).
The Court of Appeals has made it clear that a police officer may not without founded suspicion for the inquiry ask occupants of a stopped vehicle if they possess any weapons. Garcia, 20 NY3d at 320. Under Garcia, a police officer may not ask the driver stopped for a traffic violation whether he has anything that he should not have in the absence of a founded suspicion. The record demonstrates that there palpably was no basis for the question, and certainly there was no founded suspicion.
Indeed, the inquiry was baseless. The right to inquire as to a traffic stop does not permit detention for a further fishing expedition, even by highly trained anti crime officers, on the lookout for bad guys, because they will, as they did here, see them in every traffic stop. The Court singled out the area of crime prevention for special mention, noting that "(s]ince this function is highly susceptible to subconstitutional abuses it will be subject to the greatest scrutiny" DeBour, 40 NY2d at 220.
Police conduct in the making of the initial stop was valid in all respects. People v. David L., 81 AD2d 893 (2nd Dept 1981), revd 56 NY2d 698 (1982). But the issue is whether the police acted reasonably under DeBour during the post traffic stop. Whether governmental action is reasonable will turn on the facts of each case and requires consideration of whether the police action at issue "was justified in its inception and whether ... it was reasonably related in scope to the circumstances which created the encounter" People v. Powell, 246 AD2d 366, 368 (1st Dept), appeal dismissed 92 NY2d 886 (1998). "Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand" Cantor, 36 NY2d at 112-113. "To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion" Id. at 113.
It is well settled that a request for information, or a Level I encounter, can never be lawfully made by the police pulling over a moving vehicle, because at the moment the vehicle is pulled over (it is considered a limited seizure for Fourth Amendment purposes), the encounter is said to lose its consensual characteristics transforming it into, at a minimum, a Level III encounter, which requires "reasonable suspicion" that the individual has committed, is committing, or is about to commit a crime. See People v. Spencer, 84 NY2d 749, 752-753 (1995).
The officer's testimony that they were continuing to check data about Mr. Goethe suggested by its vagueness and general non specific claim as to officer safety, without any evidence that the area was either a high crime area or that the open day light stopping of an electric motor scooter endangered these officer's safety was under these circumstances unreasonable.
A police officer is limited to the degree of intrusion permitted by the circumstances of the case and may not exceed that level of intrusion absent a clear change in the circumstances that would permit a greater intrusion. Hollman, 79 NY2d at 185, 191-192. Once the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer's investigation, the officer is no longer merely seeking information.
In this matter the police appropriately stopped Mr. Goethe for a traffic violation for which a summons would be issued. They ran his name through the database accessible on their phones. The evidence was that they continued to detain him, not writing the traffic ticket until they had questioned him on the street.
The DeBour analysis guides the assessment. Each progressive level, however, authorizes a separate degree of police interference with the liberty of the person approached and consequently requires escalating suspicion on the part of the investigating officer.
The question as to whether he had anything he shouldn't have is a threatening question, indicative of criminality. There is no evidence in the record to justify a reasonable belief that Mr. Goethe had "anything he shouldn't have." On the contrary, the defendant did not exhibit suspicious behavior before the question. He was as evidenced by the body cam video, completely cooperative with the officers during the encounter until the officer escalated the encounter by the questioning. The evidence was that the only offense the defendant committed was a traffic violation and there is no reasonable basis to infer that running a red light on an electric scooter evinced conduct suggesting further criminality. The non violent and non threatening running of a red light gives no reason to conduct a greater than necessary detention and questioning. See People v. Francis, 17 Misc 3d 870 (Sup Ct, Bronx County 2007). Although the questioning was merely to ask him if he had anything that he shouldn't have on him, there was no reasonable suspicion at the time of the first question to believe that Mr. Goethe had committed anything other than a traffic infraction. The officer could interfere with the defendant only to the extent necessary to gain explanatory information under a level two inquiry, a momentary stop when there is founded suspicion that criminal activity is afoot. DeBour, 40 NY2d at 223.
This is especially true when the initial stop is valid and it morphs into unconstitutional territory. As the Robinson court noted, the story does not end when the police stop a vehicle for a traffic infraction. The scope, duration and intensity of the seizure, as well as any search made by the police subsequent to that stop, remain subject to the strictures of article I, § 12, and judicial review. Robinson, 97 NY2d at 353.
The reliance upon People v. Loretta, 107 AD3d 541(1st Dept 2013), lv app denied 22 NY3d 1157 (2014) is wholly misplaced. Loretta is also factually inapposite. A defendant's nervousness, without more, is not enough to give rise to a founded suspicion of criminality that allows for a common-law inquiry. However, apart from seeming nervous, the defendant in Loretta was observed in a drug-prone neighborhood pulling what appeared to be an aluminum foil packet out of his pocket. The arresting officer suspected that the aluminum foil contained cocaine because cocaine is often packaged in that manner. And, unlike in Garcia , where the alleged "furtive" behavior was consistent with nervousness over being pulled over, the Loretta defendant's attempt to block the officers' view of the shirt pocket in which he had placed the aluminum packet was consistent with someone in possession of a controlled substance attempting to avoid apprehension. These additional circumstances in Loretta seen subsequent to the traffic stop were sufficient to give the police the requisite founded suspicion to approach and question defendant. No such circumstances surrounded Mr. Goethe's traffic stop.
Because the underlying facts are so radically different than those in this case, the People cannot rely upon Loretta where the trial court denied a defendant's suppression motion. Loretta called this encounter a level two common-law inquiry, not a level three seizure (see e.g. People v. Jenkins, 209 AD2d 164 [1st Dept 1994] ), and it was justified by, at least, a founded suspicion of criminality. Defendant Loretta's response to the detective's inquiry led to probable cause for the arrest. In Mr. Goethe's case there was no founded suspicion at the time that the officer asked whether the defendant had anything that he should have, producing the narcotic in response to the inquiry. It is at that point that the intrusion became impermissibly restrictive.
Unlike Loretta, this case's result is in fact dictated by the Court of Appeal's decision in People v. Garcia, 20 NY3d 317 (2012). In Garcia , defendant's vehicle was pulled over because of a defective brake light. Aside from the faulty light, there was no indication of criminality by the occupants of the car; they merely appeared nervous and acted "furtive(ly)" by "stiffen(ing) up" and "looking behind" upon being pulled over. Id. at 320.
In this matter at the time of the question by Officer Vargas, the defendant was pulled over for running a red light in an unlicensed electric motor scooter and was without a helmet. Outside of the Vehicle and Traffic Law violation, there was no indication of criminality on the part of Mr. Goethe. He did not act furtively or otherwise demonstrate the usual indicia of suspicious activity in this part of the encounter. There was nothing for the police to do but write him his traffic ticket and let him go because they had no other reason to continue to detain him. The disposition of the scooter was never raised as an issue in this matter.
Mr. Goethe did not display any nervousness at the time of the encounter and even after the question involving the narcotic. Only when the improper intrusion was well under way and the police told him he had to go to the precinct did the defendant display any nervousness and stated that he messed up. Clearly, a defendant's nervousness, without more, is not enough to give rise to a founded suspicion of criminality that allows for a common-law inquiry. People v. Milaski, 62 NY2d 147, 156 (1984) (concluding that nervousness is not an indication of criminality); People v. Banks, 85 NY2d 558, 562 (1995).
The traffic violation ordinarily would have resulted in a traffic summons being issued. Here the police officer went beyond the limits and invaded the right of the defendant to be left alone. Given that the criminal activity was identified and a citation was to be issued, this activity raises issues of the line between the DeBour levels 2 and 3, the latter being a forcible stop, given that Mr. Goethe was not free to go and a reasonable person in his position would not believe that he was free to leave. Defendant could not reasonably "disregard the police and go about his business" California v. Hodari D. , 499 US 621, 628 (1991).
In Garcia, the Court identified the very the danger inherent in not suppressing the fruit of this type of encounter. If by sanctioning, in the interest of safety, a suspicionless inquiry into whether the occupants of a stopped vehicle have a weapon, we may open the door to less precise inquiries with the potential to raise significant privacy concerns. In a footnote, the Garcia Court expressed its disapproval of what occurred with Mr. Goethe. When the People asked the Garcia Court to adopt the rule that police officers may routinely pose the same type of question posed to Mr. Goethe, i.e. "Is there anything in the car I should know about?", regardless of any suspicion of criminality because the inquiry serves a legitimate protective purpose and is no more intrusive on the occupants' privacy than an order to step out of the vehicle, the Garcia court specifically rejected that standard as violative of the Fourth Amendment.
Finally, the case law also focuses on the time period of the interdiction of the defendant's movement. It would seem that the time frame between the stop and the accusatory question was brief, but that fact is not dispositive. The simple traffic stop did not feature the police returning to their vehicle to check out the citizen's proffered identification but rather the police continually surrounding the defendant on the scooter and detaining him, and specifically turning from inquiry to accusatory. It was no longer a simple traffic stop. The open ended inquiry shifted from the information necessary to write a traffic ticket to a demand for disclosure of any possible criminality and was in the nature of an escalation. The hearing testimony offered no basis for the asking of the question either in the testimony, the body camera videos, or by inference.
No matter how calm the tone of officers may be, or how polite their phrasing, a request as to whether he has anything that he shouldn't have is intrusive and intimidating and would cause reasonable people to believe that they were suspected of non traffic offense related criminal conduct.
No matter how subtle the distinction or the brevity of the conduct, police officers may not ask intrusive potentially incriminating questions unless they have a founded suspicion that criminality is afoot separate and apart from the traffic violation. Here the question albeit a single one crossed the constitutional line because there was no basis for suspicion or a founded suspicion. The defendant's behavior was appropriate to the situation. It gave no basis to warrant further intrusion or detention or questioning. This inquiry appears to be literally on a mere whim or caprice or curiosity or general distrust and as such is a constitutional violation of Mr. Goethe's rights. DeBour , 40 NY2d at 217 ; see also People v. Monsanto, 73 AD2d 576 (1st Dept 1979), affd 52 NY2d 931 (1981).
The officers' conduct demonstrates the DeBour violation by their inordinately prolonged detention beyond what was reasonable under the circumstances to address the traffic infraction. The officers stopped Mr. Goethe for the traffic violation. They checked some database using their phones to determine if he was a danger to them or himself, what ever that means. Assuming that this was a warrant check that could be done standing in the street on their phones, it should have returned all the necessary information immediately. Police officers are equipt with phones that provide information application tools. The implication of the testimony is that the police have the ability to in effect Google the name and information of the person stopped in a traffic stop. Indeed there was no testimony that it revealed anything or that it was ever "completed," thereby suggesting it was a pretext to continue the detention and to avoid issuing the traffic ticket that would allow Mr. Goethe to then go. While they did the check, he was not free to go but there was no further reason to hold him. The initial reason for the police citizen encounter was exhausted. Milaski , 62NY2d at 156. The evidence, the body camera footage, and the testimony demonstrated that no circumstance came to the officers' attention following the initial stop that furnished them with reasonable suspicion that they were engaged in criminal activity. Milaski, 62 NY2d at 156 ; see also People v. May, 81 NY2d 725, 727 (1992).
The final issue is whether the inevitable discovery exception to the exclusionary rule defeats suppression. The doctrine of inevitable discovery holds that fruits of an unlawful search need not be suppressed where there is a very high degree of probability that the evidence in question would have been obtained independently of the tainted source. The inevitable discovery doctrine may not be applied to allow the admissibility of evidence seized as a direct result of a Fourth Amendment violation. Simply put the evidence in this case that is being suppressed is not subject to the inevitable discovery rule because it is primary evidence. As a matter of New York constitutional law, primary evidence, i.e., the very evidence obtained during or as the immediate consequence of official illegal conduct, is still subject to exclusion even if it would most likely have been discovered in the course of routine police procedures; but the inevitable discovery exception can validly apply to permit the use of secondary evidence, obtained as a result of information gleaned from, or by other exploitation of, the tainted primary evidence. People v. Turriago, 90 NY2d 77 (1997). The danger is that the inevitable discovery rule effects a post hoc rationalization of the initial wrong and would be an unacceptable dilution of the exclusionary rule. It would defeat a primary purpose sub silentio and encourage unlawful searches in the hope that probable cause would be developed after the fact. People v. Stith, 69 NY2d 313 (1987).
Conclusion
Accordingly, this Court finds that viewed in the light most favorable to the People, the arresting agents conducted a forcible stop of the defendant without having reasonable suspicion to do so. See People v. Williams , 84 NY2d 925 (1994) ; see also People v. Contes , 60 NY2d 620 (1983).
Consequently, the People failed to satisfy their burden of demonstrating by a preponderance of the evidence that the defendant's arrest was lawful. The motion to suppress is therefore granted in its entirety.
This constitutes the decision and order of the Court.