Opinion
573 KA 18-01620
11-20-2020
The PEOPLE of the State of New York, Respondent, v. Keith GRIFFIN, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE PHILLIPS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE PHILLIPS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). We reject defendant's contention that County Court erred in refusing to suppress a handgun and his statements to the police. Contrary to defendant's contention, the court properly determined that the police conduct was "justified in its inception and ... reasonably related in scope to the circumstances [that] rendered its initiation permissible" ( People v. De Bour , 40 N.Y.2d 210, 222, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). The 911 caller who reported the incident identified herself as the mother of the victim and indicated that the victim was being subjected to domestic violence by her boyfriend at a specified address, thereby providing sufficient "self-identifying information" to support the court's determination that "the call was not a truly anonymous one, and [that] the police were justified in acting on such information" ( People v. Dixon , 289 A.D.2d 937, 937, 938, 734 N.Y.S.2d 761 [4th Dept. 2001], lv denied 98 N.Y.2d 637, 744 N.Y.S.2d 765, 771 N.E.2d 838 [2002] ; see also People v. Van Every , 1 A.D.3d 977, 978, 767 N.Y.S.2d 176 [4th Dept. 2003], lv denied 1 N.Y.3d 602, 776 N.Y.S.2d 233, 808 N.E.2d 369 [2004] ). The officers' prior knowledge of the residents of the address given by the 911 caller, specifically that defendant was the boyfriend of the reported victim and that the pair resided together at the address given, allowed the officers to identify defendant as the individual suspected of hitting or "jumping on" the reported victim. Thus, at the time the officers arrived at the location in response to the dispatch for a "violent domestic," they possessed a "reasonable suspicion that [defendant] was involved in a felony or misdemeanor" ( People v. Moore , 6 N.Y.3d 496, 499, 814 N.Y.S.2d 567, 847 N.E.2d 1141 [2006] ).
When the officers arrived at the scene shortly after 11:30 p.m., they observed defendant standing behind a minivan that was parked in the driveway. Initially, defendant was visible to the responding officers from about the waist up. Upon seeing the officers, however, defendant crouched behind the minivan out of the officers' sight for a few seconds before standing up again. Based on the totality of the circumstances—including the short period of time between the 911 call, the dispatch for a "violent domestic," and the arrival of the police officers at the reported location; the presence of defendant and his girlfriend in the driveway at that location; the responding officers' knowledge of and familiarity with defendant and his girlfriend and the fact that the officers had responded to the same location earlier that night; and defendant's act of crouching behind the minivan when he saw the officers arriving—the officer's verbal command for defendant to emerge from behind the vehicle and place his hands on the side of a house was a reasonably tailored intrusion on defendant's freedom of movement consistent with a level three encounter (see People v. Camber, 167 A.D.3d 1558, 1558-1559, 90 N.Y.S.3d 457 [4th Dept. 2018], lv denied 33 N.Y.3d 946, 100 N.Y.S.3d 194, 123 N.E.3d 853 [2019] ; see generally De Bour , 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). Contrary to defendant's further contention, he was not subjected to an unlawful arrest when he was handcuffed, pat frisked, and placed in the back of a patrol vehicle. "It is well established that not every forcible detention constitutes an arrest" ( People v. Drake , 93 A.D.3d 1158, 1159, 940 N.Y.S.2d 403 [4th Dept. 2012], lv denied 19 N.Y.3d 1102, 955 N.Y.S.2d 557, 979 N.E.2d 818 [2012] ; see People v. Hicks , 68 N.Y.2d 234, 239, 508 N.Y.S.2d 163, 500 N.E.2d 861 [1986] ) and that "officers may handcuff a detainee out of concern for officer safety" ( People v. Wiggins , 126 A.D.3d 1369, 1370, 4 N.Y.S.3d 798 [4th Dept. 2015] ; see People v. Allen , 73 N.Y.2d 378, 379-380, 540 N.Y.S.2d 971, 538 N.E.2d 323 [1989] ). A "corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he [or she] is in danger of physical injury by virtue of the detainee being armed" ( De Bour , 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; see Wiggins , 126 A.D.3d at 1370, 4 N.Y.S.3d 798 ). In the context of this level three encounter—in which the officers were responding to a "violent domestic," defendant and his girlfriend were observed by the responding officers in proximity to one another in the driveway, it was dark outside, and defendant crouched behind a van upon seeing the police arrive—the officers had "reasonable suspicion to believe that defendant posed a threat to their safety" ( People v. Mack , 49 A.D.3d 1291, 1292, 853 N.Y.S.2d 764 [4th Dept. 2008], lv denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 [2008] ). Defendant was carrying something over his shoulder, and a pat frisk of his person was a reasonable measure taken by the officers to ensure that defendant was not armed with a weapon (see Camber , 167 A.D.3d at 1559, 90 N.Y.S.3d 457 ; Mack , 49 A.D.3d at 1292, 853 N.Y.S.2d 764 ).
Although the pat frisk of defendant's person did not reveal any weapons, his brief detention in the patrol vehicle was justified while the officers spoke to defendant and his girlfriend separately and investigated the report of domestic violence. Defendant had a history of fleeing from responding officers, and his brief continued detention was reasonable inasmuch as the officers "diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly" ( Hicks , 68 N.Y.2d at 242, 508 N.Y.S.2d 163, 500 N.E.2d 861 ; see Allen , 73 N.Y.2d at 380, 540 N.Y.S.2d 971, 538 N.E.2d 323 ) and " ‘a less intrusive means of fulfilling the police investigation was not readily apparent’ " ( People v. Howard , 129 A.D.3d 1654, 1656, 12 N.Y.S.3d 708 [4th Dept. 2015], lv denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016] ). Under these circumstances, we conclude that defendant was not under arrest when he was handcuffed, pat frisked, and placed in the patrol vehicle for an investigatory detention (see People v. Pruitt , 158 A.D.3d 1138, 1139-1140, 70 N.Y.S.3d 691 [4th Dept. 2018], lv denied 31 N.Y.3d 1120, 81 N.Y.S.3d 380, 106 N.E.3d 763 [2018]; see also People v. McCoy , 46 A.D.3d 1348, 1349, 848 N.Y.S.2d 505 [4th Dept. 2007], lv denied 10 N.Y.3d 813, 857 N.Y.S.2d 47, 886 N.E.2d 812 [2008] ). The subsequent discovery by an officer of a handgun on the driveway in the same location where defendant had been observed crouching moments earlier gave the officers probable cause to believe defendant dropped the gun there when he saw the officers arrive at the location (see People v. Smith , 167 A.D.3d 1505, 1507-1508, 90 N.Y.S.3d 431 [4th Dept. 2018], lv denied 33 N.Y.3d 954, 100 N.Y.S.3d 180, 123 N.E.3d 839 [2019] ).
Contrary to defendant's further contention, the court properly refused to suppress the initial statements he made while detained in the patrol vehicle. Although defendant was at that time in custody for Miranda purposes, " ‘both the elements of police "custody" and police "interrogation" must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda ’ " ( People v. Hailey , 153 A.D.3d 1639, 1640, 61 N.Y.S.3d 755 [4th Dept. 2017], lv denied 30 N.Y.3d 1060, 71 N.Y.S.3d 10, 94 N.E.3d 492 [2017], quoting People v. Huffman , 41 N.Y.2d 29, 33, 390 N.Y.S.2d 843, 359 N.E.2d 353 [1976] ). Here, the only question asked of defendant prior to the administration of Miranda warnings was "What is going on?" We conclude that defendant's statements in reply "were responses to [a] threshold inquir[y] by the [officer] that [was] intended to ascertain the nature of the situation during initial investigation of a crime, rather than to elicit evidence of a crime, and those statements thus were not subject to suppression" ( People v. Mitchell , 132 A.D.3d 1413, 1414, 17 N.Y.S.3d 563 [4th Dept. 2015], lv denied 27 N.Y.3d 1072, 38 N.Y.S.3d 842, 60 N.E.3d 1208 [2016] [internal quotation marks omitted]; see People v. Spirles , 136 A.D.3d 1315, 1316, 25 N.Y.S.3d 462 [4th Dept. 2016], lv denied 27 N.Y.3d 1007, 38 N.Y.S.3d 116, 59 N.E.3d 1228 [2016], cert denied ––– U.S. ––––, 137 S.Ct. 298, 196 L.Ed.2d 220 [2016] ; People v. Carbonaro , 134 A.D.3d 1543, 1547, 23 N.Y.S.3d 525 [4th Dept. 2015], lv denied 27 N.Y.3d 994, 38 N.Y.S.3d 104, 59 N.E.3d 1216 [2016], reconsideration denied 27 N.Y.3d 1149, 39 N.Y.S.3d 384, 62 N.E.3d 124 [2016] ). Defendant was advised of and waived his Miranda rights before he was asked any further questions by either the officers at the scene or the detective at the police station.
Defendant further contends that the action of the officer in signaling to the other officers at the scene that he found a handgun in the driveway was the functional equivalent of interrogation. That contention is not preserved for our review inasmuch as defendant failed to raise it in his omnibus motion or before the suppression court (see generally People v. White , 128 A.D.3d 1457, 1459, 8 N.Y.S.3d 788 [4th Dept. 2015], lv denied 26 N.Y.3d 1012, 20 N.Y.S.3d 553, 42 N.E.3d 223 [2015] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).
Defendant also contends that the court erred in refusing to suppress the handgun on the ground that the officer's discovery of it was the result of an unlawful warrantless search of the curtilage of his home. We reject that contention. "Although a private driveway leading to a home is not outside the area entitled to protection against unreasonable search and seizure ..., the key inquiry ... is whether defendant had a reasonable expectation of privacy in this area" ( People v. Smith , 109 A.D.2d 1096, 1098, 487 N.Y.S.2d 210 [4th Dept. 1985] ). Here, the record establishes that an officer standing "a couple feet" away from the minivan parked in defendant's driveway observed the handgun on the surface of the driveway below the front bumper of the minivan, which was "the same location" where defendant had crouched when he first saw the officers arriving. The driveway was adjacent to defendant's property on the right and the neighboring house on the left, and it was connected to the public sidewalk in the front. The rear of the parked minivan was approximately at the sidewalk, and the front bumper was approximately "halfway up the driveway" between the two houses. The handgun, therefore, was approximately a minivan's length away from the sidewalk, between defendant's house and the house next door. The area was used for vehicle parking, it was not fenced or gated, and there were no signs or notices evidencing any intent to exclude the public from the area. The area was illuminated by the light from the streetlights. Thus, we conclude that the record supports the court's determination that defendant lacked a reasonable expectation of privacy in the area where the handgun was observed by the officer (see People v. Reed , 115 A.D.3d 1334, 1337, 982 N.Y.S.2d 670 [4th Dept. 2014], lv denied 23 N.Y.3d 1024, 992 N.Y.S.2d 807, 16 N.E.3d 1287 [2014] ; People v. Versaggi , 296 A.D.2d 429, 429, 745 N.Y.S.2d 196 [2d Dept. 2002], lv denied 98 N.Y.2d 714, 749 N.Y.S.2d 12, 778 N.E.2d 563 [2002] ; People v. Warmuth , 187 A.D.2d 473, 474, 589 N.Y.S.2d 522 [2d Dept. 1992], lv denied 81 N.Y.2d 894, 597 N.Y.S.2d 956, 613 N.E.2d 988 [1993] ; cf. Collins v. Virginia , ––– U.S. ––––, 138 S.Ct. 1663, 1670-1671, 201 L.Ed.2d 9 [2018] ; United States v. Alexander , 888 F.3d 628, 633-634 [2d Cir. 2018] ).
Even assuming, arguendo, that defendant had established standing to challenge the search of his driveway, the record supports the suppression court's determination that the handgun was not unlawfully seized because "[t]he officer who found the firearm did nothing other than to look at the ground to discover it." The officer was lawfully in a position to view the handgun, had lawful access to it, and its incriminating nature was immediately apparent (see generally People v. Brown , 96 N.Y.2d 80, 88-89, 725 N.Y.S.2d 601, 749 N.E.2d 170 [2001] ; People v. Bishop , 161 A.D.3d 1547, 1547, 76 N.Y.S.3d 725 [4th Dept. 2018], lv denied 32 N.Y.3d 1002, 86 N.Y.S.3d 760, 111 N.E.3d 1116 [2018] ).
Inasmuch as there was no unlawful police conduct with respect to defendant's investigative detention, his initial statements to the officer, or the seizure of the handgun, his further contention that his subsequent statements to police should have been suppressed as tainted by unlawful police conduct is necessarily without merit (see People v. Bethany , 144 A.D.3d 1666, 1668, 42 N.Y.S.3d 495 [4th Dept. 2016], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 717, 80 N.E.3d 410 [2017], cert denied ––– U.S. ––––, 138 S.Ct. 1571, 200 L.Ed.2d 760 [2018] ).