Opinion
1434/05.
Decided October 28, 2005.
ADA Sneha Kapadia, NY County District Attorney, for the People.
Benjamin Kanstroom, Esq., Legal Aid Society, for defendant Jose Liriano.
Robert Garcia, Esq., Neighborhood Defender Service of Harlem, for defendant Jason Soto.
Alexei Grosshtern, Esq, for defendant Olutona Ogunfiditimi.
Defendants Liriano and Soto, charged with Criminal Possession of a Controlled Substance in the Second Degree, and defendant Ogunfiditimi, charged with Criminal Possession of a Weapon in the Third Degree, have moved to suppress evidence seized from the car in which they were riding on February 26, 2005. Defendants Soto and Ogunfiditimi also move to suppress oral and written statements they made to the police. A hearing was held before me on August 9 and 10, 2005, and briefs have been submitted by all parties. Suppression is denied for the reasons that follow. The People presented three witnesses at the hearing: Police Officers Andre Kearney and James Sepulveda and Detective Frank Galan. I find their testimony to be entirely credible, and based upon it I make the following:
Findings of Fact
At about 8 pm on February 26, 2005, Officers Kearney and Sepulveda were on anti-crime patrol. As members of the street crime unit, charged with the investigation of violent crime patterns, they were patrolling an area that had recently experienced a number of robberies. The officers were in plain clothes in an unmarked car. Driving northbound on Riverside Drive, they noticed a silver SUV with out of state plates in the left lane. The SUV crossed into the right lane without signaling and proceeded to make a right turn through a red light without stopping. The officers activated their "light package" and pulled the SUV over at 155th Street next to a cemetery. The night was dark, although there was some street lighting.
Getting out of their car, the two officers approached the vehicle from the rear, Officer Kearney on the passenger side and Officer Sepulveda on the driver's side. Officer Kearney was able to see that there were four occupants in the car: two in the back and two in the front. As they approached, Officer Kearney observed the vehicle "rocking" or "bouncing". As he testified, "the vehicle was doing a lot of moving, like someone inside was moving around". When Officer Sepulveda approached the open driver's side window, he was able to see that the vehicle was in gear, so he told the driver "in a loud voice" to put the car in park. The driver (defendant Ogunfiditimi) failed to comply, so the command was repeated several times. Hearing his partner "screaming" at the driver at least three times to turn off the car and put it in park, Officer Kearney knocked on the passenger door and tried to open it, but found it locked.
Except for the driver's window, the SUV's dark tinted windows were rolled up, but Officer Kearney could see the "silhouette" of the person sitting in the rear passenger seat "turn his body toward the inside of the vehicle". At this point, Officer Kearney testified, he was "uncomfortable" with the situation. Having experienced two prior shooting incidents, he was concerned that one of the passengers could produce a gun from behind the tinted glass. Because he "didn't want to get shot through a window", he stepped to the rear of the SUV and radioed for backup.
The backup team arrived quickly, in less than two minutes. Driving the wrong way on 155th Street, it pulled up in front of the SUV, blocking it. At this point, finally, the driver put the SUV in park and unlocked the doors. Officer Kearney then opened the rear passenger door and told the four men inside not to move and to keep their hands visible. As he did so, he observed that the middle console in the back seat was noticeably ajar, leading him to conclude that something had just been placed there.
Officer Sepulveda then opened the driver's door, ordered the defendant Ogunfiditimi out, and removed him to the back of the SUV, while Officer Kearney and the backup team removed the other three passengers and brought them all to the rear of the vehicle. All four were then frisked without results. While all of the occupants were assembled behind the SUV, Officer Kearney re-entered the rear seat area and opened the console. Inside he found a bag of white powder suspected (and later determined) to be cocaine, and a loaded Glock .9 millimeter handgun. The four occupants of the SUV were then arrested and transported to the 30th precinct.
Later, at the precinct, as Officer Kearney was escorting him to the men's room, the defendant Ogunfiditimi said that the gun was his and he used it for work, but the drugs were not. This statement was not made in response to any questioning. Thereafter, also at the precinct, at about 9 pm, Detective Galan administered Miranda warnings to defendant Soto in the detective squad interview room. Soto was read his rights from a form, acknowledged his understanding, and initialed and signed the form. Then he wrote a statement in his own handwriting. At 10:30 pm, defendant Ogunfiditimi signed and initialed the Miranda waiver form, and also wrote out a statement in his own hand. No threats or promises were made to induce either statement.
Conclusions of Law
Defendant Ogunfiditimi, who claimed ownership of the gun, moves to suppress it and the written and oral statements he made; defendants Soto and Liriano, the back seat passengers, move to suppress the cocaine found in the console; and defendant Soto moves to suppress his written statement. All three defendants contend that the physical evidence was seized during an illegal search of the car, and that the statements were the fruit of unlawful arrests.
In assessing the legality of police behavior during the stop and search of a vehicle a court first must determine "whether or not the police action was justified in its inception and secondly whether or not that action was reasonably related in scope to the circumstances which rendered its initiation permissible". People v. DeBour, 40 NY2d 210, 215 (1976). The focus must be on determining whether the police conduct was reasonable given the totality of the circumstances. People v. Batista, 88 NY2d 650, 653 (1996); People v. Montilla, 268 AD2d 270 (1st Dept 2000) app dism 95 NY2d 830 (2000). As the Appellate Divison, First Department recently held, the inquiry "must weigh the degree of intrusion which it entails against the precipitating and attending circumstances out of which the encounter arose [focusing] on whether the police conduct was reasonable in view of the totality of the circumstances, for reasonableness is the touchstone by which police-citizen encounters are measured." People v. Anderson, 17 AD3d 166, 167 (1st Dept 2005) (citations omitted).
In this case defendants do not challenge the initial stop for the traffic violations; nor do they contest the lawfulness of their removal from the SUV. This latter concession is plainly correct. Because "police officers face an inordinate risk [to their safety] when approaching a person seated in an automobile" ( People v. Alvarez, 308 AD2d 184, 187 [1st Dept 2003], citing Pennsylvania v. Mimms, 434 US 106), officers who lawfully stop a vehicle may order all of its occupants to exit without any specific articulable belief that there is a weapon inside. Maryland v. Wilson, 519 US 408 (1997); People v. Robinson, 74 NY2d 773, 774 (1989). In defendants' view, however, once the vehicle's occupants were safely removed from the car, the police could not lawfully re-enter the vehicle and conduct a search for and retrieve the weapon that was seized together with the cocaine in this case. They rely principally upon the Court of Appeals decision in People v. Torres, 74 NY2d 224 (1989). I find that reliance to be misplaced.
In Torres, the police received an anonymous tip at 11:00 in the morning that a man wanted for homicide was at a location carrying a gun in a shoulder bag. Shortly thereafter, the officers arrived at the location and spotted a man fitting the description (defendant Torres) who was carrying a shoulder bag as he entered a car. The police approached with guns drawn and ordered Torres and another occupant out of the car and frisked them. As Torres was being frisked, one of the officers reached into the car and removed the shoulder bag from the front seat. Feeling the weight of the bag and the shape of a gun, the officer unzipped it and found a revolver and ammunition. The Court of Appeals reversed the lower courts and granted suppression, finding that "once the detectives had frisked the two men, and had thereby satisfied themselves that there was no immediate threat to their safety, there was, as a matter of law, no justification for conducting a further, more intrusive search extending to the removal of personal effects on the front seat of defendant's car" ( 74 NY2d at 227). The Court cited People v. Belton ( 55 NY2d 49) as requiring the police to have probable cause to search closed containers inside a car.
The Torres Court, however, added a caveat to its holding, making it clear that it should not be construed as a bar to those searches reasonably necessary to protect the police officers engaged in such an encounter. To the contrary, the Court emphasized that the "degree of probable cause outlined in Belton" may not be required "where, following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officers' safety sufficient to justify a further intrusion, notwithstanding the suspect's inability to gain immediate access to that weapon" ( 74 NY2d at 231, n. 4).
The Court of Appeals has since revisited its holding in Torres and emphasized the critical importance of the foregoing caveat. Thus, in People v. Mundo, 99 NY2d 55 (2002) defendant's car recklessly sped away from the attempted stop three times, while a rear passenger made a movement as if he were hiding something inside. Citing the failure of the vehicle to stop and the furtive "attempt to stash something in the middle area of the rear seat", the Court found that there was a "perceptible risk to the officers that a weapon located within the vehicle would be a specific danger to their safety, [which justified a] limited police intrusion in that area where the furtive movements" were seen. See also, People v. Carvey, 89 NY2d 707 (1997) (rear passenger wearing bulletproof vest "furtively" placed something under seat); People v. Anderson, 17 AD3d 166 (1st Dept 2005) (car approaching safety checkpoint made illegal U-turn, front passenger turned and did something in center console and slammed it, then refused to answer if he had a weapon): People v. Worthy, 261 AD2d 277 (1st Dept 1999) lv denied 93 NY2d 1029 (1999) (unauthorized driver of rental car, suspicious movements by rear passenger, front passenger seen making "dipping" motion toward rear floor); People v. Cisnero, 226 AD2d 279 (1st Dept 1996) app denied 88 NY2d 1020 (1996) (four occupants in car, nervous rear seat passenger bent down to conceal something beneath seat and then tried to run away).
Most recently, in People v. Fludd, 20 AD3d 351 (1st Dept 2005), the Appellate Division, First Department delineated the proper scope of a search following a car stop on facts similar to those presented here. In Fludd the officers stopped a speeding car, which had cut off the officers' unmarked car. In the course of the ensuing traffic stop, the passengers defied orders to keep their hands visible and a rear seat passenger slid something under a pile of clothing. The court held that this conduct presented the officers with a "heightened risk", which lead them to "reasonably fear for their safety." In words appropriate to this case, the Court held that "while defendants were cooperative with the police after being removed from the vehicle, their earlier actions were not benign." Accordingly, under the totality of the circumstances, the officers were entitled to search the area of the car where they had observed the rear seat passenger secrete something and lawfully seized the firearm they found pursuant to that search.
In the present case, as in Fludd, the officers lawfully stopped the defendants for a moving traffic violation. Thereafter, Officer Kearney saw the SUV moving in a manner he described as "bouncing" or "rocking". The officer was understandably fearful as he approached it because he could see little through the dark-tinted windows. Also as in Fludd, the driver of the the SUV repeatedly refused to obey the officer's lawful command — in this case, to put the vehicle in park — only complying when his potential escape route was cut off by the arriving backup team. Similarly, no one responded when Officer Kearney knocked on the door of the SUV. Finally, and most compellingly, as in Fludd, the Officer observed the rear passenger turn inward as if to secrete or discard something that the Officer feared might be a weapon; and, upon opening the car door to remove the passengers, the Officer observed the rear console to be ajar as if something had just been hidden within. I find that these facts establish that Officer Kearney reasonably perceived a risk to his and his fellow officers' safety that night on 155th Street, in that the suspicious and uncooperative behavior of the car's occupants created an actual and specific danger that a weapon concealed inside could do them harm. Consequently, Officer Kearney's limited protective search of the rear console and seizure of the contraband within it was lawful. People v. Mundo, supra; People v. Norman, 304 AD2d 405 [1st Dept 2003]. See also, People v. Hutchinson, ___ AD3d ___, 2005 WL 2656601 (2nd Dept 10/17/05). As the search was lawful, suppression of the gun and drugs is denied. As the arrests following the discovery of the gun and drugs were entirely lawful, suppression of the defendants' statements is also denied.
Rosario Material
During the hearing, defendants requested that the court impose a sanction on the People for their purported failure to disclose Rosario material. Officer Kearney testified that he called for backup on the police radio he was carrying. He testified that his call went through Central Dispatch to Manhattan North, and that to his knowledge, calls into Central are recorded. However, after numerous and repeated inquiries of the Police Department by the prosecutor, I am satisfied that no such recording exists nor ever existed. The supervisor of the Police Department's tape room informed the prosecutor that she searched for any record of such a call by reference to the date, time and location of the event. She searched the specific computer tape recording from the time and date at issue, and also the main computer tape for two hours before and after the time of the event, finding nothing. Further, the supervisor made a duplicate of the tape for the period ten minutes before and after the event, which the prosecutor listened to, also finding nothing concerning this case. The NYPD supervisor also informed the prosecutor that police radio calls may not be recorded due to the use of different frequencies by different police units and that this is not unusual. I accept these representations without further testimony, and I find that the call was not recorded. See People v. Poole, 48 NY2d 144, 149 (1979). Consequently, the request for a sanction is denied.