Opinion
2973/07.
Decided on June 3, 2008.
The Defendant is charged with one count of Criminal Possession of a Controlled Substance in the Third Degree in violation of P.L. § 220.16 (1), a class B felony and one count of Criminal Possession of a Controlled Substance in the Fourth Degree in violation of P.L. § 220.09 (1), a class C felony. A hearing was held before me on May 6, 2008 to determine whether cocaine recovered from the Defendant's person is admissible against him at trial. The People called one witness, Police Officer Jensen Dayle. I find his testimony to be credible. The Defendant called no witnesses.
For the reasons stated below, the Court finds that the frisk of the Defendant and the subsequent removal of cocaine from the Defendant's waistband violated the Fourth Amendment to the United States Constitution and Article 1, Section 12 of the Constitution of the State of New York. Defendant's motion to suppress the cocaine recovered from him is therefore granted.
FINDINGS OF FACT
Police Officer Dayle testified that he is a six-year member of the New York City Police Department and had worked as an anti-crime officer for approximately the past 3 ½ years of that time. He testified that he was on anti-crime duty on June 8, 2007 at 6:10 P.M. in the vicinity of West 145th St. And 8th Ave. in New York County. Officer Dayle was seated in the rear passenger seat of an unmarked car traveling eastbound on West 145th St. driven by his partner, Police Officer Faccahini. Sergeant O'Hagan was traveling in the front passenger seat of the vehicle.
From approximately two or three car lengths ahead, Police Officer Dayle stated that he observed a Mercedes-Benz, also traveling eastbound on West 145th St., drive erratically by weaving in and out of lanes and attempt to make a U-turn. The officers responded by accelerating to catch up to the vehicle and putting on signals, lights, and sirens to indicate to the car's driver that he should pull over. While the Mercedes-Benz was slowing down, but before it came to a complete stop, Officer Dayle testified that he observed a tennis ball thrown from the right side of the car. Police Officer Dayle stated that on prior occasions in the scope of his law enforcement duties he has seen tennis balls used as containers for narcotics. At an unspecified later point in time, the tennis ball was recovered and shown to Officer Dayle who observed that the ball contained a slit that would allow narcotics to be placed inside of it. While Officer Dayle stated that he was told by Police Officer Faccahini that the tennis ball contained contraband, the parties entered into a stipulation that no contraband was ever recovered from inside the tennis ball.
After stopping the vehicle, Police Officer Faccahini approached the driver, Mr. Henry Mack, and asked him for his license, registration and proof of insurance. Police Officer Dayle stated that he observed Police Officer Faccahini ask the driver to get out of the vehicle and pat him down. The driver was then taken to the rear of the Mercedes-Benz where Police Officer Dayle was standing with Sergeant O'Hagan. Police Officer Faccahini then took the individual seated in the rear driver side, Mr. Ronald Davoren, out of the vehicle, patted him down and handcuffed him.
Police Officer Dayle proceeded to the rear passenger door, opened it and asked the Defendant to step out of the vehicle. Officer Dayle then frisked the Defendant to check for weapons. When asked what offense the Defendant was suspected of at the time of the frisk, Officer Dayle responded that: "I'm not sure because when we stopped, we didn't know what we had or if anybody did anything wrong until we actually did the stop".
Officer Dayle testified that at some unspecified point after the passengers had been taken out of the vehicle, Officer Faccahini told him that a marijuana "blunt" (a cigar containing marijuana) was recovered from the front seat cup holder area of the car. During his pre-arrest encounter with the Defendant, however, Officer Dayle testified that he did not see or hear anything about any contraband the Defendant may have possessed. It was also clear from the testimony that Officer Dayle was not aware of the existence of the "blunt" when he frisked the Defendant. Upon frisking the defendant, Officer Dayle stated that he felt a hard object along the Defendant's belt line in the front of his waistband area and asked the Defendant what it was. The Defendant replied that he did not know. Officer Dayle then removed the object, a one inch long piece of foil paper wrapped in a ball. Officer Dayle acknowledged that tin foil "does have flexibility to it".
Officer Dayle said he removed the object because he did not know what it was and he was concerned that the object could have hurt him or the Defendant. He testified that the Defendant was non-threatening and cooperative during the encounter. When Officer Dayle unwrapped the foil he found what he believed to be crack cocaine. Officer Dayle then placed the contraband in his pocket and handcuffed the Defendant.
The Defendant was walked to the rear of the police vehicle and Officer Dayle gave the contraband recovered from the Defendant to Police Officer Faccahini to voucher because Officer Faccahini was the arresting officer. The Mercedes-Benz was released to Mr. Mack's brother subsequent to an inventory search of the vehicle. At an unspecified later time, Officer Dayle stated that he learned that the foil he had recovered from the Defendant contained 19 envelopes of powdered cocaine and 16 small baggies of crack cocaine.
CONCLUSIONS OF LAW
The observation that the vehicle in which the Defendant was traveling was driving erratically, going in and out of lanes and attempted to make a U-turn gave the police probable cause to believe that the driver of the car had committed a traffic infraction and justified the stop of the car. People v. Robinson, 97 NY2d 341 (2001). Upon stopping the car for the traffic infraction, the police were permitted to ask the occupants of the vehicle, including the passengers, to exit the vehicle People v. Robinson, 74 NY2d 773 1989, cert. den., Robinson v. New York, 493 U.S. 966 (1989).
The police will also be justified in stopping a car when they have reasonable suspicion that an occupant of the car has committed, is committing or is about to commit a crime. People v. May, 81 NY2d 725 (1992); People v. Figueroa , 38 AD3d 796 (2d Dep't 2007), lv. den., 8 NY3d 984. Here, as was essentially conceded by the People during oral argument, the sole fact (other than the fact of the traffic infraction) which provided any indication that the Defendant may have been involved in criminal activity was the allegation that a tennis ball flew out of the window of the car.
A tennis ball under ordinary circumstances, of course, is an innocuous object which is not indicative of criminality. Tennis balls traveling through the air at a tennis court, among two people playing catch or being propelled by a single individual bouncing a ball on a pavement would certainly not, standing alone, give rise to a reasonable suspicion that a crime was being committed. In this case, however, the tennis ball was thrown from a moving car immediately after the police signaled their intention to pull the car over by activating their lights and sirens. Officer Doyle testified that based on his training and experience, tennis balls are often used to conceal unlawful narcotics.
Under the circumstances, it is difficult to posit a likely innocuous or innocent explanation for the flying tennis ball. Under these unique circumstances, I find that the police had a reasonable suspicion that the tennis ball contained or was indicative of the possession of unlawful narcotics. Thus, in addition to the traffic infraction, the stop of the car was justified by the observation of the flying tennis ball. The more significant questions are whether the police were justified in frisking the Defendant when he left the vehicle and whether, upon discovering a one inch hard object in his belt, the police were justified in removing it.
The fact of the traffic infraction itself did not give the police the authority to search the defendant's person. Knowles v. Iowa, 525 U.S.113 (1998). There was no testimony at the hearing that Officer Dayle observed the Defendant or anyone else in the vehicle making furtive or suspicious movements, noticed anything which might be a weapon on the person of the Defendant or any other occupant of the car or noticed anything suspicious in the vehicle itself prior to frisking the Defendant. There was no testimony that the Defendant was asked any questions prior to being frisked. The police had not recovered the tennis ball to ascertain what might be inside it at the time they frisked the Defendant and when the ball was subsequently in fact recovered, no objects were found in it.
At the time of the frisk, there was no information known to Officer Dayle, other than the fact of the flying tennis ball and the traffic infraction, which indicated that the Defendant was engaged in criminal activity. There was no testimony that the car was stopped in a high-crime or narcotics prone location. Officer Dayle testified that when he frisked the Defendant, he was not aware that the defendant had done anything wrong. There was no testimony that Officer Dayle subjectively felt fearful or in danger when he frisked the Defendant. He testified that the Defendant was non-threatening and cooperative.
In addition, it was not clear which of the three occupants of the vehicle actually threw the tennis ball. The ball came from the right side of the car and the Defendant was seated in the car's right rear passenger seat. Thus, the Defendant, rather than the left rear passenger or the driver of the vehicle, was in the best position of the car's three occupants to throw the ball.
Officer Dayle, however, did not testify that he saw who threw the ball and did not testify about whether the ball came from the right rear window or the right front window of the car. Obviously, any of the three occupants of the vehicle could have thrown the tennis ball. Officer Dayle was seated in the right rear passenger seat when he observed the flying tennis ball, behind Officer Faccahini and Sargeant O'Hagan who were in the front seat of the vehicle. The Defendant's vehicle was in front of Officer Dayle's car.
The right of the police to effectuate the forcible stop and detention of a vehicle or a person is distinct from the concomitant right to frisk a person. The right to stop and detain a person arises from "a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor." People v. DeBour 40 NY2d 210, 223 (1976); C.P.L. § 140.50(1). Here, in this Court's view, as noted above, the stop and detention of the vehicle was justified because of the belief that a traffic infraction had been committed, but also based upon the reasonable suspicion that the flying tennis ball indicated that someone in the vehicle possessed or was in the act of discarding unlawful narcotics.
The right to frisk, however, requires that an officer "reasonably suspect that he is in danger of physical injury by virtue of the detainee being armed". People v. DeBour, supra, at 223; C.P.L. § 140.50 (3). As one court clearly framed the distinction: "To justify a forcible stop, a police officer must reasonably suspect that a person is committing, has committed or is about to commit a crime and a frisk is warranted in such an instanceonly when the officer reasonably suspects that he is in danger of physical injury from the individual detained. People v. Chinchillo, 120 AD2d 266 (3d Dep't 1986), citing DeBour and C.P.L. §§ 140.50(1) (3). Put in slightly different terms: "In the case of the self-protective search for weapons, he [the police officer] must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous." People v. Arviello, 133 AD2d 589 (1st Dep't 1987), quoting, Sibron v. New York, 392 U.S. 40, 64 (1968); see also, People v. Russ, 61 NY2d 693 (1984).
The Court of Appeals, in construing these sections of the Criminal Procedure Law, has noted that "[a]fter a valid stop, a police officer should demand an explanation of the suspect's conduct. A search is subsequently warranted only if the officer reasonably suspects' that he is in danger of physical harm." People v. Sanchez, 38 NY2d 72 (1975), citing C.P.L. §§ 140.50(1) (3). There are obviously situations in which a police officer who has lawfully stopped and detained an individual may search that individual without making any inquiry of the person. The above quoted language is indicative, however, of the fact that the particularized showing of danger which is necessary for a frisk will often only become apparent after a defendant has been questioned about his conduct.
It is clear that where the police have reasonable suspicion warranting a frisk of a person, they may not on that basis alone frisk a second person who is associated with and physically proximate to that person. People v. Trapier, 47 AD2d 481 (1st Dep't 1975); People v. Durant, 175 AD2d 176 (2d Dep't 1991). On the other hand, there are circumstances where the reasonable suspicion that one person in a group has a weapon combined with a founded suspicion that criminal activity is afoot among the group as a whole may justify the protective frisk of the entire group. See People v. Fernandez, 261 AD2d 178 (1st Dep't 1999), lv. den., 94 NY2d 822. Here the police did not know who threw the tennis ball or who possessed the tennis ball prior to its ejection from the car. They could only reasonably infer that one of the three people in the car had thrown it.
The initial question in this motion can thus be distilled to a simple inquiry: Did the fact that a tennis ball flew out of the car window, standing alone, give the police reasonable suspicion to believe that the Defendant was armed and dangerous?
In People v. Watts , 43 AD3d 256 (1st Dep't 2007), lv. den., 9 NY3d 965, the police, in response to an anonymous 911 call concerning a mailbox being taken by two men approached two men who matched the description of the caller. The men had what appeared to be sheetrock dust and plaster on their pants and shoes. When the two men could not produce identification, and indicated they were coming from the area where the 911 call had indicated the crime was committed, the police performed a protective frisk of the defendants. In upholding the legality of the search, the First Department held that "[w]hen a police officer confronts an individual whom he reasonably suspects has committed an inherently dangerous crime such as burglary, that suspicion alone justifies not only detention but also a frisk for weapons." People v. Watts, supra, at 258 (emphasis added). In support of this holding, the Watts court cited the decision of the Court of Appeals in People v. Mack, 26 NY2d 311 (1970), cert. den., Mack v. New York, 400 U.S. 960. There, the Court articulated the applicable standard as follows:
Where a police officer detains an individual whom he reasonably suspects has committed a crime such as forgery, policy, gambling or the like, depriving the police officer of the right to frisk, unless he has some other information to formulate a reasonable suspicion of danger, is understandable. Where, however, the officer confronts an individual whom he reasonably suspects has committed, is committing or is about to commit such a serious and violent crime as robbery, or, as in the instant case, burglary, then it is our opinion that that suspicion not only justifies the detention but also the frisk, thus making it unnecessary to particularize an independent source for the belief of danger. People v. Mack, supra, at 317 (emphasis added).
The Mack court, in turn, relied in part on Justice Harlan's concurring opinion in Terry v. Ohio, 392 U.S. 1 (1968):
[T]he right to frisk must be immediate and automatic if the reason for the stop is, as here, an articulable suspicion of a crime of violence. Just as a full search incident to a lawful arrest requires no additional justification, a limited frisk incident to a lawful stop must often be rapid and routine. There is no reason why an officer rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet." People v. Mack, supra, at 318, quoting Terry v. Ohio, supra, at 33 (emphasis added).
Numerous cases have invoked the Mack doctrine to uphold frisks in which the primary or only factor justifying the frisk was the reasonable suspicion that the defendant had committed a crime. In accordance with the holding, however, those cases have invariably involved a suspicion that a violent crime (including burglary) had taken place or cases where there were independent facts indicating that the defendant may have possessed a weapon. See e.g., People v. Roberts, 196 AD2d 665 (2d Dep't 1993) (report of robbery in progress); People v. Ely, 159 AD2d 393 (1st Dep't 1990), app. den., 76 NY2d 856 (burglary report and other factors justified frisk); People v. Flores, 144 AD2d 481 (2d Dep't 1988) (suspicion of burglary and other factors justified frisk); People v. Smith, 292 AD2d 280 (1st Dep't 2002), lv. den., 98 NY2d 681(burglary); People v. Perez, 166 AD2d 166 (1st Dep't 1990), app. den., 76 NY2d 989 (robbery); People v. Burks 235 AD2d 373 (1st Dep't 1997), app. den., 89 NY2d 1033 (possession of shiny metal object, high incidence of auto-theft, kneeling inside car provided suspicion of a crime "involving potentially dangerous instruments"),
Conversely, in People v. Del Vecchio, 277 AD2d 927 (4th Dep't 2000) evidence recovered from a frisk was suppressed where the frisk was premised upon the suspicion that the defendant may have been involved in a larceny. In Del Vecchio, the court held that a larceny was not the kind of "serious and violent crime [such] as robbery or burglary" which would justify a frisk absent some other indicia of danger (citations omitted).
This Court's research does not reveal any case in which the Mack rule has been invoked to justify the frisk of a defendant suspected of a narcotics possession or narcotics sale offense. In People v. Gonzalez, 295 AD2d 183 (1st Dep't 2002) the police received a radio transmission of a drug sale and approached a suspect in the area who matched the specific clothing description given on the transmission. When the police asked to speak to the defendant he fled and was then apprehended and searched. In suppressing the narcotics recovered from the defendant, the Court observed that while the police might have been justified in their pursuit and stop of the defendant, they were not justified in frisking him because they had no "independent, particularized reason to believe that defendant was armed and dangerous". People v. Gonzalez, supra, at 184. In other words, under the facts present in Gonzalez, the reasonable suspicion of the drug sale alone did not justify the frisk. See also, People v. Brown, 204 AD2d 994 (4th Dep't 1994) (defendant matching description provided by radio dispatches of a man selling narcotics could not be frisked since facts did not create reasonable suspicion of danger).
Narcotics crimes, in this Court's view, fall between those cases where the reasonable suspicion of a crime, standing alone, would clearly justify a frisk (like robbery or burglary) and suspected crimes where a frisk would clearly not be justified (like forgery or gambling). The sale or possession of narcotics is not defined by the Penal Law or cases applying the Mack doctrine as a "violent" crime. ( See e.g., P.L. § 70.02 (1) defining a "violent felony offense"). On the other hand, the law generally defines the possession of illegal narcotic drugs as a serious crime, and generally a more serious crime than offenses such as gambling or forgery. See e.g., People v. DeBour, supra, at 220 ("the Legislature has declared [narcotics] to be a serious crime". (citation omitted).
In specific factual contexts, courts have also observed that, "[i]t is well known that violence is typically associated with narcotics trafficking". People v. Woolnough 180 AD2d 837 (2d Dep't 1992), app. den., 79 NY2d 1056 (citations omitted); see also, People v. Mateo 122 AD2d 229, 231 (2d Dep't 1986), app. den., 69 NY2d 952 (1987) (it is "a judicially recognized fact that the drug trade often engenders situations of extreme violence and danger to law enforcement officers") (citations omitted).
In the absence of any bright line rule which would authorize the protective frisk of a defendant solely by virtue of a reasonable suspicion that the defendant was engaged in a narcotics crime, courts have analyzed the surrounding circumstances of such interactions to see if a protective frisk was warranted. This was the type of analysis the courts in Gonzalez and Brown conducted when they suppressed narcotics in those cases. Similarly, in the view of this Court, several factors indicate that the police did not act lawfully in frisking the Defendant here.
First, there was no testimony that the flying tennis ball here was perceived by Officer Dayle to be indicative of narcotics "trafficking" or any intent to sell narcotics. Rather, what was alleged in the testimony was that the ball might be evidence of narcotics possession. In the view of this Court, the fact that a person is suspected of possessing an unlawful narcotic drug does not, standing alone, give rise to a concomitant reasonable suspicion that such a person is also armed and dangerous. Second, there was no clear indication that it was the Defendant, rather than one of the two other occupants of the car, who actually threw the tennis ball and thus may have possessed narcotics.
A number of other facts, in this court's view, argue that the evidence in this case should be suppressed. The police asked no questions of the Defendant prior to frisking him. Officer Dayle did not at any time indicate that he subjectively felt threatened by the Defendant. There was no testimony that the Defendant or any of his companions made any threatening or furtive gestures or movements. There was no evidence that the Defendant or any of his companions may have possessed a weapon. In fact, as described in more detail above, when Officer Dayle frisked the Defendant, he did not have any indicia of criminality at all, other than the flying tennis ball.
The Court recognizes that police officers making car stops always face a potentially dangerous situation, must make split-second decisions and do not have the luxury of making a detailed legal analysis of their behavior prior to acting to ensure that a suspect is not armed and dangerous. Given the hearing record in this case, however, this Court concludes that the Fourth Amendment was violated when the police frisked the Defendant. The reasonable suspicion that one of the three persons in the car had discarded or possessed an unlawful narcotic drug did not justify the protective frisk of all of the car's occupants.
Even assuming, arguendo, that Officer Dayle was justified in performing a protective frisk of the Defendant, he was not justified in removing the one inch long, somewhat flexible object he detected on the Defendant's waistband during the frisk. A protective search must be limited to an intrusion reasonably designed to recover weapons. If the limited intrusion fails to reveal a weapon, thereby abating the officer's concern for his safety, the search must stop. People v. Diaz, 81 NY2d 106 (1993); People v. Roth, 66 NY2d 688 (1985); Matter of Doris A., 163 AD2d 63 (1st Dep't 1990), app. den., 76 NY2d 712.
In People v. Robinson, 125 AD2d 259 (1st Dep't 1986), app. dismissed, 69 NY2d 1014 (1987) the police received a report of a man with the butt of a gun protruding from his waistband and a bulge in his crotch area. When the defendant was stopped, the police officer stated that he observed a bulge in the defendant's crotch area, but nothing protruding from the defendant's waistband. After ordering the defendant up against a wall, the police officer patted him down and stated that he felt a hard object. The defendant denied that the object was a gun and the police officer stated that he did not know what the bulge felt like at the time he grabbed it. After reaching into the defendant's pants the police officer recovered small glassine and tin foil envelopes of heroin.
In granting the defendant's motion to suppress the recovered contraband the Court stated:
The bulge was. . . not large enough to permit the speculation that it could have been a gun wrapped in some type of material. The bulge consisted of two piles of packaged narcotics, one pile measuring an inch by two inches, and another pile, next to the first measuring three inches by three inches. These square shaped, squeezable packages could under no reasonable view of the evidence have been a weapon. [The police officer], therefore, could no longer have been in reasonable fear of his safety when he touched the bulge, and he was not justified in conducting the more intrusive search of defendant's pants. People v. Robinson, supra, at 262.
See also, People v. Watts, supra, at 259 (key in pocket discerned through protective frisk not properly seized since it could "not have been mistaken for a weapon" but suppression denied because suppression claim not properly preserved); People v. Clark, 213 AD2d 946 (3d Dep't 1995), aff'd, 86 NY2d 824 (discovery during frisk of a hard object in defendant's pants waistband "the size of a small loaf of bread" suppressed even though [precisely as in the instant case] defendant in response to a question said she didn't know what the object was; "there was nothing to suggest that the item [later identified as cocaine] was a weapon" [internal quotation omitted]).
In the instant matter, as noted above, when Officer Dayle conducted a protective frisk of the Defendant he felt a one-inch long object in the Defendant's waistband. He testified that the object (which, as noted above, turned out to be a tin foil packet containing cocaine) felt hard and also had a degree of flexibility. Officer Dayle testified, with respect to his touching of the tin foil, that he had to "check it out" because "it could hurt me or hurt him depending on what it was". This Court finds under the circumstances, however, that Officer Dayle did not have any reasonable indication that the small object he touched was a weapon and therefore was not justified in pulling the object out of the Defendant's belt. Because that action was unlawful, the narcotics seized from the Defendant are additionally suppressed on that ground.
This case is adjourned to Part 21 of the this Court for further proceedings consistent with this decision and order.