Opinion
03-29-2023
The People of the State of New York, v. J.S., Defendant.
For the Defendant: Dawn M. Florio, Esq., Dawn M. Florio Law Firm PLLC For the People: Kings County District Attorney's Office, By: Amel Spahija, Esq., Assistant District Attorney
For the Defendant: Dawn M. Florio, Esq., Dawn M. Florio Law Firm PLLC
For the People: Kings County District Attorney's Office, By: Amel Spahija, Esq., Assistant District Attorney
JOANNE D. QUIÑONES, J.
The defendant is charged with Criminal Possession of a Weapon in the Second Degree, in violation of Penal Law (PL) section 265.03 (3); Criminal Possession of a Firearm, in violation of PL section 265.01-b (1); Criminal Possession of a Controlled Substance, in violation of PL section 220.03; and Improper Coating on Front Windshield, in violation of Vehicle and Traffic Law (VTL) section 375 (12-a) (b) (2), in connection with an incident that occurred on May 13, 2022. The defendant moves to suppress evidence, namely an oral statement and physical property on various grounds. This court conducted a combined Huntley / Dunaway/Mapp/Ingle hearing on February 14 and 16, 2023. The People presented two witnesses at the hearing: Police Officer Christopher Francis and Police Officer Rabeel Ahmad. The defendant did not present any witnesses. After the testimony was concluded, the court heard oral arguments from both sides. The court has also considered the parties' written submissions.
Hearing Transcript pages 1-69.
Hearing Transcript pages 70-142.
The court now makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
Police Officer Francis
Officer Christopher Francis has been with the New York City Police Department (NYPD) for approximately five years (Hearing Transcript [tr] at 10). He currently serves as a Neighborhood Coordinating Officer in Police Service Area 3, where his duties are to "address [ ] community complaints" (id. at 11, 29). The officer received basic training on the operation and use of a firearm through the NYPD's Rodman's Neck Tactical Program and has received training on the observation, use and recognition of controlled substances at the Police Academy (id. at 11-12). Over the course of his career, Officer Francis has made over 200 arrests, 10 of which involved the recovery of controlled substances, specifically codeine, and two of which involved the recovery of a firearm, including the instant matter (id. at 12).
The court credits Officer Francis' testimony to the extent set forth below. On May 13, 2022, Officer Francis was working in uniform, in a marked vehicle with a partner Officer Delinda Giraldo (tr at 12-13, 23, 30). At approximately 9:15 p.m., while in his police vehicle by the Flatbush Avenue Extension in Kings County, he observed a four-door Mercedes Benz with tinted windows cross over a solid white line without using its indicators (id. at 13-14, 32-33). The officer observed that the Mercedes had "heavily tinted windows, and it disobeyed the traffic device in which you couldn't cross over the white line and it didn't signal" (id. at 15, 34). The officer later measured the tints on the Mercedes using a tint meter, which "measures the transparency of light that goes through the window," but could not recall the results (id. at 21-22).
At the time of his initial observation of the Mercedes, the officer was seated in his vehicle at a gas station facing the flow of traffic heading towards the bridge, "so facing towards the Mercedes Benz" (id. at 14-15). When the Mercedes passed the officer at the gas station, the officer could not tell the number or the gender of the car's occupants (id. at 37). He noticed the tinted windows and began to follow the car (id. at 42). The officer followed the Mercedes for approximately two blocks before he observed it go over the white line without signaling "right before the foot of the bridge" (id. at 38-39).
Officer Francis proceeded to pull the car over (id. at 15). He initially stated that it took approximately two blocks to pull the car over "due to the flow of traffic," but then indicated he was not sure of the approximate street length (id. at 29, 32). He explained that it could have been "a little bit more, because they are long blocks on the side of the bridge" (id. at 32).
After pulling the Mercedes over, Officer Francis approached the driver's side and his partner approached the passenger's side (tr at 16, 46-47). Officer Francis' body worn camera (BWC), which was admitted into evidence without objection, captured his interaction with the defendant from the moment the officer approached the Mercedes to the point when the defendant was placed under arrest (see People's Exhibit No.1).
When Officer Francis approached the vehicle, the windows were now down but the officer observed that "the rear back windows had tint and the little side panel in the back" (id. at 15). The officer described the tinting as "just excessive, not normal" (id. at 16). He explained that based on his experience of having pulled over cars with window tints, he "could recognize that that is not the legal tint on a car" (id.). Officer Francis observed five occupants in the car, including the defendant, who he identified in court as the operator of the car (id. at 16, 43-44). In response to Officer Francis' request for paperwork, the defendant provided his driver's license and registration (id. at 16, 43-44, 45, 60).
Officer Francis then made a request for additional units to respond to the car stop (tr at 17). According to Officer Francis, he did so "just due to the fact that we were on a busy bridge. For my safety and the passenger's safety I wanted another vehicle there" (id.). On cross-examination, Officer Francis clarified that his fear for his safety was not due to the occupants of the car, but rather due to the location of the car stop (id. at 46, 96-97).
Once the other units responded, Officer Francis asked the occupants of the car, including the defendant, to exit the car (tr at 17, 48, 49). He then shined his department-issued flashlight toward the rear of the vehicle and observed a bottle (id.). When asked on direct examination what drew his attention to the bottle, Officer Francis responded "that chemical that was in the bottle" (id. at 18). Officer Francis then removed the bottle from the car (id. at 18). At time stamp 21:29:11, Officer Francis' BWC shows him holding a baby bottle, stating "it's promethazine" and then opening the bottle (see People's Exhibit #1). The officer then looks at the contents of the bottle by holding a flashlight under it (see id.). During cross-examination, Officer Francis claimed that he smelled the bottle and it "smelled like codeine" (tr at 56-57, 61). He admitted that he could not smell what was in the bottle from outside of the car (id. at 50, 52).
After recovering the bottle, Officer Francis searched the vehicle and recovered a loaded firearm from the front driver's side panel (tr at 18-19). He then alerted his fellow officers by stating "92," the code for arrest (id. at 19). The officers on scene then proceeded to place all five occupants of the car under arrest (see People's Exhibit #1).
Officer Francis' subsequent testimony with respect to the circumstances surrounding his observations and recovery of the bottle was inconsistent and impeached on more than one occasion. On direct examination at the hearing, the officer averred that he observed the bottle "in the rear row of the vehicle in the back and in plain view" (tr at 18). On cross-examination, he testified that he observed the bottle on "the rear passenger seat on the floor," then stated in "the rear of the car" (id. at 49, 50). When asked whether it was behind the driver's seat or the passenger's seat, Office Francis answered, "It was kind of in the middle, literally in the second row of the car, toward the middle from the floor" (id. at 50). When asked for further clarification regarding the officer's initial observation of the bottle, the following exchange occurred:
Q: When you had testified on direct examination, didn't you testify that you had observed the bottle in the rear driver's seat pouch?
A: Well, no, I testified that it was in the rear, the rear side of the car.
Q: So, just so I'm clear. When you had said you were outside of the car after you had ordered everyone to get out of the car, where did you actually - where did you actually see that bottle that you claimed that was a crystal-like substance in there?
A: The rear row of the car.
Q: And the rear row of the car, was that on the floor?
A: Yes, towards the floor area.(id. at 51). At another point, Officer Francis states "to the best of my knowledge, it was in the rear of the car" and that he's "pretty sure it was in the - towards the bottom part of the car, like closer to the floor" (id. at 94).
The officer's testimony regarding the location of the bottle's recovery was impeached by his earlier testimony before the grand jury. The People stipulated that the following exchange occurred during Officer Francis' testimony before the grand jury:
Q: Did you ultimately look inside the rear driver's seat pouch?
A: Yes, I did.
Q: What, if anything, did you see there?
A: A bottle with crystal like substance, residue, which appeared to me to be promethazine.(tr at 53-55).
Officer Francis' testimony was further impeached by the contents of the Kings County District Attorney's office complaint room screening sheet. Officer Francis denied telling the assistant district attorney in the complaint room that he had observed a baby bottle containing promethazine inside the rear pocket of the passenger's side door (tr at 79). The parties stipulated, however, that if the assistant who completed the screening sheet was called as a witness, he would state that he filled out a complaint room screening sheet and that said screening sheet contained the statement, "AO further observed a baby bottle containing prome.. from inside the rear pocket of the passenger side seat. Said. was vouchered" (id. at 139-140).
On redirect examination, Officer Francis claimed that he recovered the bottle "from the left side closest to the rear" (tr at 121). When asked whether it was the driver's side or the passenger's side, he stated, "It is kind of in the middle. So closest to, I guess, the driver's side" (id.). The officer's testimony, however, is belied by his own BWC. At time stamp 21:28:40 on the officer's BWC, prior to the recovery of the bottle, there is a clear view of the floor in the rear driver's side of the Mercedes (see People's Exhibit #1; see also tr at 119). There is no bottle visible in "plain view" "towards the floor area" "in the middle" "closest to the driver's side" as stated by the officer.
Officer Francis' description of the bottle's contents was similarly inconsistent. On direct examination, he stated that he observed "a chemical that looked like codeine" inside the bottle (tr at 18). He further described the substance as "basically a liquid-like substance that I opened the bottle, and you could smell the type of liquid is resembled alleged codeine" (id.). On cross-examination, he described the bottle as a clear baby bottle which had a "a crystal-like substance" (id. at 50). He described the substance as "basically it is a crystal-like substance that sticks to the plastics and it is of an acidic nature" (id. at 50). When asked again to describe what he actually saw in the bottle, Officer Francis stated, "A crystal-like substance that was sticking to the bottle, different areas of the bottle, as well as the liquid at the bottom" (id. at 51-52). The officer was then specifically asked, "I want to be clear. It would be fair to say there was no liquid in the bottle, just a residue crystal, correct?", to which the officer responded, "Negative" (id. at 55). The officer was then impeached again with his grand jury testimony where, in response to the question, "So to be clear, there is no liquid in the bottle, just a residue crystal, correct?," the officer responded, "Correct, yeah" (id. at 55-56).
When asked "would you say your memory was better today [at the hearing] as opposed to when you testified in the grand jury?," the Officer Francis responded, "I'm not sure" (tr at 94).
Police Officer Ahmad
Officer Rabeel Ahmad has been with the NYPD for eight years and currently serves as a Highway Safety Officer in the 84th Precinct (tr at 125-126). He testified credibly that on May 13, 2023, at approximately 9:23 p.m., he was at the Manhattan Bridge in Kings County to assist with a car stop (id. at 127). While on the scene of the car stop, the motorist, who he identified as the defendant herein, initiated a conversation with him (id. at 127, 134, 135-136). Specifically, the motorist asked if the registration would show who the car belongs to (id. at 128, 135). Prior to the defendant's question, Officer Ahmad had not asked the defendant any questions (id. at 130). In response to the defendant's question, Officer Ahmad asked who the car belonged to and the defendant answered, "my mom" (id. at 128). At the time of his statement, the defendant was not in handcuffs, no weapons were drawn, and no officer had made any threats or promises to the defendant (id. at 128, 134-135). Officer Ahmad, however, conceded that the defendant was not free to leave (id. at 132). The exchange between Officer Ahmad and the defendant was captured on the officer's BWC, which was admitted into evidence without objection as People's Exhibit #2.
Officer Ahmad admitted that prior to his exchange with the defendant, he observed Officer Francis ask the defendant a question about the registration to which the defendant responded that he did not want to answer any questions (tr at 131-132). Officer Ahmad further admitted that notwithstanding the defendant's response, Officer Francis continued to ask the defendant about the registration (id. at 133).
CONCLUSIONS OF LAW
At a suppression hearing, the People have the initial burden of going forward to show, by credible evidence, the lawfulness of the police conduct (People v Hernandez, 40 A.D.3d 777, 778 [2d Dept 2007]; People v Moses, 32 A.D.3d 866, 868 [2d Dept 2006]; see also People v Wise, 46 N.Y.2d 321, 329 [1978]; People v Whitehurst, 25 N.Y.2d 389, 391 [1969]). In evaluating the police action, the court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time (People v DeBour, 40 N.Y.2d 210, 215 [1976]). If the People satisfy their initial burden, the defendant "bears the ultimate burden of proving that the evidence should not be used against him" (People v Berrios, 28 N.Y.2d 361, 367 [1971]).
An automobile stop that is" 'based on probable cause that a driver has committed a traffic infraction'" is lawful (People v Hinshaw, 35 N.Y.3d 417, 430 (2020), quoting People v Robinson, 97 N.Y.2d 341, 349-350 [2001]). Where a traffic stop is supported by probable cause, "neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant" (Robinson, 97 N.Y.2d at 349; see also People v Diaz, 146 A.D.3d 803, 804 [2d Dept 2017]).
VTL section 375 (12-a) (b) (2) provides, in relevant part, that no person shall operate a motor vehicle upon any public highway, road or street, which has side windows "on either side forward of or adjacent to the operator's seat with a light transmittance of less than seventy percent." Here, Police Officer Francis observed the Mercedes to have "heavily tinted windows." As stated by the Second Department, "window tint violations are a recognized basis for stopping a motor vehicle" (People v Biggs, 208 A.D.3d 1340, 1343-1344 [2d Dept 2022]; see also People v Bacquie, 154 A.D.3d 648, 649 [2d Dept 2017] ["the police lawfully stopped the defendant's car due to an apparent violation of VTL section 375(12-a)(b)"]; People v Neklatov, 2022 NY Slip Op 22409 [App Term, 2d Dept 2022] [detective's testimony that he stopped the vehicle for "excessively tinted windows" was sufficient to show probable cause of the car stop]). "The legal test, according to the Court of Appeals, is whether the police officer reasonably believes the windows to be over-tinted in violation of [VTL] section 375 (12-a) (b)" (Biggs, 208 A.D.3d at 1344 [2d Dept 2022], citing People v Estrella, 10 N.Y.3d 945 [2008]). Officer Francis's testimony that based on his prior experience in pulling over cars with window tints, he recognized that the car's tint was not "legal" and that he was unable to make out the number or gender of the occupants in the car meets the standard set forth by the Court of Appeals.
Moreover, as the officer followed the Mercedes in his marked police vehicle, he observed the Mercedes cross a solid white line without signaling. VTL section 1163 provides in relevant part that no person shall turn a vehicle from a direct course or move right or left upon a roadway without giving an appropriate signal.
The court credits Officer Francis' testimony regarding his observations of the Mercedes' excessive tints and failure to signal. As such, the initial stop of the Mercedes was lawful.
With respect to Officer Francis' directive that the defendant and his passengers exit the Mercedes, the Court of Appeals has held that "in light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion direct the occupants of a lawfully stopped vehicle to step out of the car" (People v Garcia, 20 N.Y.3d 317, 321 [2012 [emphasis added]; see also People v Robinson, 74 N.Y.2d 773, 774 [1989] ["The Fourth Amendment of the United States Constitution is not violated when a driver is directed to step out briefly from a lawfully stopped and detained vehicle because the inherent and inordinate danger to investigating police officers in completing their authorized official responsibilities in such circumstances justifies that precautionary action"]). Accordingly, the officer's request that the occupants of the Mercedes step out of the vehicle was proper.
Turning now to the defendant's motion to suppress statements, the prosecution gave notice of two statements made by the defendant at the scene of the car stop, both of which were captured on the BWCs of the officers to whom the statements were made. At a Huntley hearing, the People have the burden of proving beyond a reasonable doubt that any statement made by the defendant was voluntary (People v Huntley, 15 N.Y.2d 72, 78 [1965]). It is manifest that a defendant who is in custody may not be interrogated by law enforcement without being advised of his constitutional rights (Miranda v Arizona, 384 U.S. 436 [1966]).
The first statement at issue was made to Officer Francis upon his approach of the Mercedes. At the time of the statement, the defendant and his passengers were seated in the Mercedes, while the officer and his partner were outside of the Mercedes, one on each side. As reflected in Officer Francis' BWC, Officer Francis approaches the vehicle and asks for "license and registration" (see People's Exhibit #1). In response, the defendant states, in sum and substance, "What's the reason for the stop?" (id.). The officer responds "tints" and "failure to signal" and the defendant replies, "Where did I not signal at? I did signal" (id.).
As stated above, the stop of the defendant's vehicle for excessive tints and failure to signal was lawful. A temporary roadside detention pursuant to a routine traffic stop, such as the one at issue here, is not custodial in nature (People v Mathis, 136 A.D.2d 746, 747 [2d Dept 1988]). Moreover, the officer's request for license and registration was "reasonable initial interrogation attendant thereto" and as such was "merely investigatory" (id. at 748). The defendant then asks the basis for the stop and the officer informs him. There is no evidence before this court from which to conclude that the officer knew or should have known that informing the defendant of the basis for the car stop was likely to elicit a response (People v Troisi, 224 A.D.2d 559, 559 [2d Dept 1996] [lower court was correct in denying the defendant's motion to suppress his statements when those statements were made "in response to being informed that he was under arrest"]; People v Pryor, 194 A.D.2d 749, 750 [2d Dept 1993] [suppression of statement made by defendant after he asked the officer why he was being arrested and the officer explained was properly denied]). The evidence before this court establishes that this statement was voluntarily made by the defendant. Accordingly, the defendant's motion to suppress this statement is denied.
The second statement the defendant seeks to suppress was a statement made to Officer Ahmad at the scene after the defendant and his passengers were directed to exit the Mercedes. As reflected in Officer Ahmad's BWC, the defendant initiates a conversation with Officer Ahmad by stating "The registration should show who owns the car and everything, I'm asking you an honest question, the registration should show who owns the car and everything right?" (see People's Exhibit #2). Officer Ahmad responds by asking who the car is registered to and the defendant answers "my mom" (id.). This exchange took place shortly after the defendant, who was being asked questions by Officer Francis, explicitly stated that he was not answering any questions.
Even assuming that Officer Ahmad's question about the car's registration constituted interrogation, the defendant was not in custody or restrained in any way. The fact that the defendant, as conceded by Officer Ahmad, was not free to leave does not render this exchange a custodial one requiring Miranda warnings (see People v Rodney P, 21 N.Y.2d 1, 10 [1967] [in finding that Miranda warnings were not required, court held "the fact that he [the appellant] might have been restrained, had he attempted to leave, is not controlling"]. The court finds that this statement was voluntarily made by the defendant. Accordingly, the defendant's motion to suppress the statement on Huntley grounds is denied.
With respect to the recovery of the gun from the vehicle, the defendant argues that the People have failed to meet their initial burden of demonstrating the legality of the police conduct at issue. Specifically, he submits that the evidence before the court fails to establish "where exactly Officer Francis observed this bottle" (see Defendant's Memorandum in Support of Suppression Motion at 1). He further submits that "the seizure of the firearm was unconstitutional and must be suppressed" (id. at 2).
As discussed above, Officer Francis' testimony with respect to the location from which the bottle was recovered was inconsistent and impeached by his prior grand jury testimony. When he met with the assistant in ECAB and when he testified before the grand jury at the inception of this case, he claimed to have seen the bottle" inside the rear driver's seat pouch" (tr at 53-55 [emphasis added]). Nine months later at the suppression hearing, Officer Francis claimed he saw the bottle" in the rear row of the vehicle in the back and in plain view" (id. at 18, [emphasis added]). Officer Francis' hearing testimony was further undermined by the video of his BWC which does not depict a baby bottle in plain view in the rear of the vehicle as testified to by the officer. The court further notes that throughout the hearing the officer offered slight variations in the location of the baby bottle. At one point, Officer Francis claimed he found the bottle "on the rear passenger seat on the floor" (id. at 49, [emphasis added]). At another point he claimed it was in "the rear of the car," "kind of in the middle, literally in the second row of the car, toward the middle from the floor" (id. at 50). He then said it was in "the rear row of the car,"" towards the floor area" (id. at 51, [emphasis added]). Then he said, "it was in the rear of the car" "towards the bottom part of the car, like closer to the floor" (id. at 94, [emphasis added]). And finally, he said he recovered the bottle from "the left side closest to the rear," "it is kind of in the middle. So closest to, I guess, the driver's side" (id. at 121).
The location from which the bottle was recovered, that is, the rear driver's seat pouch or in the rear row of the vehicle in plain view, is critical to the court's determination of the legality of the police conduct. Given his inconsistent and impeached testimony, the court does not credit Officer Francis' claim that the bottle was observed in "plain view." Moreover, even if the bottle was plainly visible, as the officer now contends, the plain view doctrine is not applicable herein.
"Under the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent" (People v Diaz, 81 N.Y.2d 106, 110 [1993]). "The plain view doctrine, it must be emphasized, establishes an exception to the requirement of a warrant not to search for an item, but to seize it" (id. [emphasis in original]). As expressly stated by the Second Department in People v Rodriguez, "the plain view doctrine is not applicable where the object must be moved or manipulated before its illegality can be determined" (211 A.D.3d 854, 858 [2d Dept 2022]).
In Rodriguez, the Appellate Division held that the trial court erred in finding that a ziploc bag containing pills was lawfully seized (Rodriguez, 211 A.D.3d at 857). It found that the record "failed to demonstrate that the incriminating nature of the pills was immediately apparent and that [the detective] had probable cause to associate the pills with criminal activity at the time he moved or manipulated the Ziploc bag containing the pills" (id. at 858).
Similarly here, the evidence before the court fails to demonstrate that the incriminating nature of the object-a baby bottle purportedly containing promethazine-was immediately apparent. According to his testimony and to that depicted in his BWC, Officer Francis had to move the baby bottle, open it, smell it, and shine his flashlight under it. As such, the court finds that the plain view doctrine is not applicable.
If the baby bottle was recovered from the rear driver's seat pouch, the analysis is more complicated and requires separate attention. On cross-examination, Officer Francis conceded that if the baby bottle was in the backseat pocket of the car, only the nipple on the top part of the bottle would be showing. As such, the plain view doctrine would be inapplicable. Unlike a gun or a knife, the incriminating nature of the object at issue here-a baby bottle containing an alleged controlled substance-would not be immediately apparent (cf. People v Knight, 205 A.D.3d 928, 930 [2d Dept 2022] [incriminating nature of gun magazine observed in a partially open backpack was readily apparent]).
The record before this court also fails to demonstrate that the recovery of the bottle was justified pursuant to the automobile exception to the warrant requirement. Under the automobile exception, a warrantless search of a vehicle is permissible where the police have probable cause to believe that the vehicle contains contraband, a weapon, or evidence of a crime (see Rodriguez, 211 A.D.3d at 856; see also People v Marcial, 211 A.D.3d 98, 105 [2d Dept 2022]). If, as Officer Francis previously testified before the grand jury, the baby bottle was recovered from the rear driver's seat pouch, that search required probable cause to believe that the vehicle contains contraband, a weapon, or evidence of a crime. There was nothing presented to this court establishing that, prior to the bottle's recovery from any pouch or other container, Officer Francis had information which would constitute probable cause to believe that the Mercedes contained contraband, a weapon, or evidence of a crime (see Marcial, 211 A.D.3d at 105 [circumstances known to police at the time of a warrantless search of a knapsack left inside did not rise to the level of probable cause]).
Here, Officer Francis' testimony about the baby bottle, both in terms of where he observed it and his description of its contents, had the appearance of "having been patently tailored to nullify constitutional objections" (In Re Robert D, 69 A.D.3d 714, 717 [2d Dept 2010] [internal citations omitted]). For the aforementioned reasons, the court finds that the People have failed to meet their burden with respect to the recovery of the baby bottle. Furthermore, as the baby bottle was the predicate for the search which resulted in the recovery of a firearm, the People have likewise failed to carry their burden of going forward to show the legality of the police conduct in the recovery of the firearm. Accordingly, the defendant's motion to suppress the baby bottle and the firearm are granted.
CONCLUSION
For the reasons set forth above, the defendant's motion to suppress is granted to the extent that the physical evidence recovered, namely the baby bottle and the firearm, are suppressed as the fruit of an unlawful search. The defendant's motion to suppress his statements is denied.
This constitutes the Decision and Order of the Court.