Opinion
2661/03.
Decided August 30, 2004.
The defendants, indicted for Robbery in the First Degree and related charges, move to suppress identification testimony, statement testimony, physical evidence and also challenge the validity of their arrest. Upon the evidence adduced at the pretrial Wade-Mapp-Huntley-Dunaway hearing, the motions to suppress are denied.
FINDINGS OF FACT
At the hearing, the People called five witnesses, Police Officers Calvin Thomas, Nephtali Hernandez, John Walker, Anthony Burgos, and Lieutenant Dominic Cannizzaro, all of whom the Court find credible and reliable. The Defense did not call any witnesses.
On May 22, 2003, at approximately 7:50 p.m., Police Officers Thomas and Polinkus, assigned to the 48 precinct, were in the vicinity of East 180th Street and Boston Road, Bronx, New York, when a black Ford Explorer passed a steady red light at a high rate of speed. The officers, in a marked patrol car, began to follow the vehicle, activating the patrol car's turret lights and siren as they continued their pursuit. While transmitting over the police radio a description of the vehicle, and the direction of flight, the vehicle sped up, weaving in and around other vehicles and continued to pass red lights. The vehicle turned on to East Tremont Avenue and came to a brief stop, allowing the passenger, later identified as the defendant, Ralph Roman, to exit and flee on foot. The vehicle then sped off with Thomas and his partner in pursuit. At the intersection of Morris Park and East 178th Street, the vehicle stopped and the driver exited, fleeing on foot. After a short foot pursuit, the driver, identified as the defendant Samuel Malave, was apprehended. At this point, Thomas transmitted a description and direction of flight of the passenger, defendant Roman, over the police radio, receiving a response shortly thereafter that other officers had a "possible" suspect a short distance away.
As the aforementioned events were unfolding, Officer Hernandez and Lieutenant Canizzaro, assigned to Transit District 12, were on patrol when they heard a radio transmission over the division radio, involving a possible car jacking in the vicinity of 180th Street and Bronx Park Avenue. As they proceeded to the location to assist other police units already there, they turned on to 180th Street where they were flagged down by an unidentified male individual in the street who told Hernandez "the person that you're looking for is on the bus." Simultaneously, Lieutenant Canizzaro spoke with another pedestrian, Robert Melendez, who identified himself as a robbery victim and indicated that the person who robbed him had boarded a bus at East Tremont and Devoe Avenue. Upon hearing this, Hernandez positioned his patrol car in front of a Bronx #9 bus that was approaching, causing it to stop. Hernandez boarded the bus with the unidentified male individual and proceeded to walk towards the rear, when his attention was directed to a group of girls identified as the individuals who had been speaking with the suspect prior to boarding the bus. Before the officer could inquire of the girls, the male who accompanied the officer stated "there he is", identifying defendant Roman, who was crouched on the floor hiding behind a seat. Defendant Roman jumped over the seat, looked towards the rear door and then lunged at Hernandez despite being told not to move. Hernandez then drew his weapon, ordering Roman to "freeze", and held him at gunpoint until his backup arrived. A yellow metal chain was recovered by Lieutenant Canizzaro from the floor where defendant Roman had been hiding. Once outside of the bus, Melendez, the robbery victim, approached Canizzaro, identified Roman as one of the individuals who had robbed him at gun point and then identified as his, the yellow metal chain Canizzaro was holding.
Pursuant to the radio transmission of a "possible" suspect, Thomas arrived at 180th Street where the bus had been stopped and observed defendant Roman, whom he recognized as the passenger from the black Explorer, in police custody. He was informed by his Sergeant that two complainants, Robert Melendez and Irvin Gotti, had been robbed and that Roman was positively identified as one of the two individuals involved. In a conversation with Thomas, the two complainants identified Roman as one of the robbers. The complainants were then transported by Officer Walker to East 178th Street and Morris Park Avenue, where defendant Malave was being detained, to determine if he had been involved in the robbery. Both complainants observed Malave, the driver of the speeding Ford explorer, who was handcuffed in the presence of police officers and positively identified him as the second individual involved in the robbery.
Subsequent to his arrest, defendant Roman was transported to the 48th precinct where he was searched by Officer Burgos who recovered two bags of marijuana, a pair of handcuff keys, a shot gun shell, a sum of U.S. currency and a cell phone. As Burgos was bringing defendant Roman to a holding cell, Roman spontaneously stated that "he felt like going for the gun of the officer standing by the door because he knew he was not coming out. He does not rob old people or ladies, he just robs drug dealers and takes their money and drugs." Prior to this statement, defendant Roman had not been asked any questions by Officer Burgos.
CONCLUSIONS OF LAW
The determination of probable cause must be based upon an examination of all of the credible evidence presented. The initial burden is on the People to put forth credible evidence to establish that the arrest was based upon probable cause. The People must establish the legality of the police conduct which led to the recovery of the property and the identification. People v. Whitfield, 178 AD2d 334, 336 (1st Dept. 1991). rev. on other grounds, 81 NY2d 904 (1993), People v. Chip, 75 NY2d 327 cert. denied 498 US 883 (1990). The People have met their burden. The ultimate burden is then upon the defense to show, by a preponderance of the evidence, that there existed insufficient information to demonstrate probable cause and as such the conduct of the police was illegal, requiring suppression of any physical evidence recovered from the defendant, and furthermore, that the identification procedures employed were so unnecessarily suggestive as to create a substantial likelihood of misidentification. People v. Berrios, 28 NY2d 361, (1971), People v. Duuvon, 77 NY2d 541, (1991). The defense has failed to meet its burden in the instant case.
The Stop
Forcible stops and pursuits require the same degree of information to justify the police conduct. People v. Martinez, 80 NY2d 444 (1992). The Court of Appeals has held that "the police may forcibly stop or pursue an individual if they have information which, although not yielding the probable cause necessary to justify an arrest, provides them with a reasonable suspicion that a crime has been, is being or is about to be committed." Martinez 80 NY2d at 223, citing People v. Leung, 68 NY2d 734, 736 (1986), People v. DeBour, 40 NY2d 210, 223 91976), People v. May, 81 NY2d 725 (1992). Reasonable suspicion has been defined by the Court of Appeals as "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand. To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice." People v. Martinez, 80 NY at 448 citing People v. Cantor, 36 NY2d 106, 112-113 (1975). It is the totality of the circumstances surrounding the encounter that will ultimately determine whether or not it was justified. The police may stop an automobile where they have probable cause to believe that a traffic violation has occurred. People v. Robinson, 97 NY2d 341 (2001). Information of a citizen who is neither a victim nor witness to a crime may be sufficient to justify a forcible detention of a suspect in absence of probable cause to arrest. A detention of this nature is for the limited purpose of conducting a prompt identification procedure with the victim or witness. People v. Arthur, 209 AD2d 175 (1st Dept. 1994).
In regard to defendant Malave, Officer Thomas observed defendant Malave driving a black Ford Explorer which passed several red lights, drove at a high rate of speed and was weaving in and around other vehicles. These traffic infractions, which constituted the crime of reckless driving (V.T.L. § 1212), would have been sufficient to stop the vehicle driven by Malave had it not stopped on its own when the defendant fled on foot. Having observed the reckless driving, Thomas and his partner possessed probable cause to pursue the defendant as he fled and ultimately arrest him based upon the aforementioned events.
In regard to defendant Roman, the passenger, the Court must consider all of the factors which led to the stop. Officer Hernandez and Lieutenant Canizzaro, while on patrol heard a radio transmission involving a possible armed car jacking. When they arrived in the vicinity described in the radio transmission, they were immediately flagged down and informed, "the guy you are looking for is on the bus". As this statement was made, the officers observed a Bronx #9 bus approaching. The individual who provided this information remained with the police and assisted in the investigation on the bus once it was stopped. The circumstances, taken in total, establish that the officers had reasonable suspicion that an individual on the bus had committed a violent crime, and, accordingly, the stop of the bus was justified in order to conduct an immediate investigation.
Upon entering the bus, the unidentified male individual and Hernandez walked towards the rear, where without any prompting from the officer, this male stated "there he is", pointing to defendant Roman who was crouching on the floor behind the seat. Although this male was not a victim or witness, based upon the information and assistance he provided, the police were justified in detaining defendant Roman for further investigation. Once the defendant was escorted off the bus and positively identified by the robbery victim, Robert Melendez, the police possessed the requisite probable cause to effectuate the lawful arrest of defendant Roman.
The Identifications
As noted earlier, the burden is on the defendant to establish that the identification procedures utilized in the instant matter were so unnecessarily suggestive so as to create a substantial likelihood of misidentification. While show-up identifications are generally suspect, the admission or suppression of the show-up depends upon the specific facts and circumstances of the individual case so as to determine unacceptable suggestivity and unreliability. People v. Duuvon; 77 NY2d 541, 543 (1991); People v. Brnja, 50 NY2d 366 (1980). Generally, the show-up identification with a civilian witness is not so unnecessarily suggestive as to create a substantial likelihood of misidentification, where the show-up occurs in close geographical and temporal proximity to the commission of the crime. People v. Duuvon, supra; People v. Brnja, supra; People v. Anthony, 249 AD2d 102 (1st Dept. 1998), lv. denied, 92 NY2d 878 (1998). "Although it is not the preferable procedure to display the suspect in handcuffs, standing next to a police officer, this procedure does not require suppression of an otherwise proper showup." Duuvon, 77 NY2d at 569. Identifications that are not police arranged are not susceptible to undue suggestiveness by the police.
The initial identification of defendant Roman was not police arranged, but rather a spontaneous point-out by the complainant. At the time defendant Roman was handcuffed and removed from the bus, the complainant Melendez, without any prompting from the officers, pointed and positively identified him as one of the men who had just robbed him. Subsequent to the detention of defendant Roman, Officer Thomas arrived at the location and spoke with the witnesses, while defendant Roman remained nearby, handcuffed in the presence of police officers. During this conversation, the second victim, Gotti, positively identified defendant Roman to Thomas while Melendez reaffirmed his previous identification. These identifications of the defendant, shortly after the police arrived were not the product of any suggestive police procedures, but rather spontaneous point outs by the victims. See. People v. Dixon, 85 NY2d 218 (1995). Assuming arguendo, the identifications made to Thomas were police arranged, they were not so unnecessarily suggestive as to create a likelihood of misidentification since they occurred within close spatial and temporal proximity to the commission of the crime.
Upon being advised by the complainants that two males were involved, Thomas made arrangements to conduct a showup identification procedure with defendant Malave, who was detained at a nearby location and had been with defendant Roman in the black Ford Explorer, prior to his apprehension. This procedure was conducted while defendant Malave, was handcuffed and in the presence of police officers. After both complainants were asked to look at defendant Malave, they positively identified him as the second male involved in the robbery. Based upon the close spatial and temporal proximity, this showup identification procedure was not unduly suggestive so as to create a substantial likelihood of misidentification. Additionally, the officer's request to look at a possible suspect cannot be regarded as suggestive. In Duuvon, the Court held that the fact that the officers asked the complainant if the defendant was the one who had committed the crime, did not render the identification procedure unduly suggestive. Comments by an officer such as "we possibly have somebody who fit your description" and "the suspect is in the lineup", have also been held not to be unduly suggestive statements that taint the subsequent identification procedure. People v. Warner, 125 AD2d 430, (1986) ; People v. Hernandez, 122 AD2d 856.
The Statement
It is well settled that custodial interrogation requires Miranda warnings be administered and so waived, prior to police questioning. Absent advising a person in custody of the requisite pre-interrogation warnings, any statement made in response to police questioning or its functional equivalent must be suppressed. Miranda v. Arizona, 383 US 436, (1966); People v. DeTore, 34 NY2d 199 (1974), cert denied, 419 US 1025 (1974).
In the instant case, defendant Roman made a statement while he was being escorted to a holding cell. Such statement was not the result of any police interrogation or in response to anything said by the police, but rather a spontaneous statement volunteered to the officer, and as such no Miranda warnings were required. The statement was not made in violation of defendant's constitutional rights, and therefore is admissible.
The Physical Evidence
As the police possessed probable cause to arrest defendant Roman, the physical evidence retrieved from the defendant's person, i.e. two bags of marijuana, handcuff keys, a shotgun shell, a sum of US currency and a cell phone, were recovered pursuant to a search incident to a lawful arrest, and thus is itself lawful. People v. Lane, 10 NY2d 347, (1961); People v. Brown, 24 NY2d 421 (1969).
Accordingly, the motions to suppress identification testimony, defendant Roman's statement and physical evidence is DENIED.
The foregoing shall constitute the decision and order of the Court.