Opinion
No. 566/2015.
10-11-2016
The PEOPLE of the State of New York, Plaintiff, v. Fidel MATOS and Ramon Hernandez, Defendants.
Office of the District Attorney, Bronx Co. (by David McCune, Esq.), Bronx, Attorney for the People. The Bronx Defenders (by Porsha Shaf'on Venable, Esq.), Bronx, Attorney for defendant Fidel Matos. John Cromwell, Esq., Scarsdale, Attorney for defendant Ramon Hernandez.
Office of the District Attorney, Bronx Co. (by David McCune, Esq.), Bronx, Attorney for the People.
The Bronx Defenders (by Porsha Shaf'on Venable, Esq.), Bronx, Attorney for defendant Fidel Matos.
John Cromwell, Esq., Scarsdale, Attorney for defendant Ramon Hernandez.
LESTER B. ADLER, J.
In the early morning of February 5, 2015, patrolling police officers observed defendants running down a street in Bronx County. After following defendants in their vehicle, the officers pursued them on foot and stopped, frisked, and detained them to conduct an investigation. Thereafter, other police officers located a man, the complainant, who said he had been robbed and assaulted nearby. Officers drove the complainant to defendants' location to view them; there, the victim identified defendants as his assailants. Officers then arrested and eventually searched defendants. As a result, defendants were charged with thirteen counts in connection with the robbery and assault.
Defendants are charged with robbery in the first degree (Penal Law § 160.15[3] ), two counts of robbery in the second degree (Penal Law § 160.10[1] & [2 ][a] ), robbery in the third degree (Penal Law § 160.05 ), assault in the second degree (Penal Law § 120.05[2] ), grand larceny in the fourth degree (Penal Law § 155.30 [5 ] ), assault in the third degree (Penal Law § 120.00[1] ), petit larceny (Penal Law § 155.25 ), and five counts of criminal possession of stolen property in the fifth degree (Penal Law § 165.40 ).
In April 2015, defendants filed an omnibus motion under CPL article 255 seeking, among other things, an order suppressing both the physical evidence that the police had seized from them and evidence of the showup identification because they were the fruit of their allegedly unlawful arrest. Defendants also moved to suppress evidence of the identification because the procedure allegedly was unduly suggestive.
By Decision & Order dated May 7, 2015, the Court (Lieb, J.) granted the omnibus motion to the extent of, among other things, directing a pre-trial Mapp/Wade/Dunaway hearing, which was held before this Court on September 6 and 7, 2016. Based upon the evidence adduced at the hearing, and after reading the parties' post-hearing briefs, I find that, for the reasons set forth below, defendants' arrest was unlawful. Accordingly, the physical evidence seized from defendants and the identification are suppressed.
These include (1) the Post–Suppression Hearing Memorandum of Law in Support of Fidel Matos's Motion to Suppress Physical Evidence & Identification dated 9/21/16, (2) the Affirmation in Support of Motion [by Ramon Hernandez] to Suppress Evidence of John M. Cromwell, Esq. dated 9/21/16, and (3) the [People's] Memorandum of Law [in Opposition] of David E. McCune, Esq. dated 9/21/16.
Hearing —As their first witnesses, the People called NYC Police Officers Amadeo Oktrova and Christopher McGrisken, who had encountered defendants on patrol and who were principally involved in the law enforcement activities that led to defendants arrest. Oktrova testified that he has been a member of the NYPD for more than six years; McGrisken testified that he has been an officer for more than five years. At all relevant times, the officers were assigned to the citywide Anti–Crime Unit, which focuses on violent crimes.
The officers testified as to the circumstances surrounding defendants' arrest at approximately 3:10 a.m. on the morning of February 5, 2015. At that time, Oktrova, McGrisken, and Police Sergeant Barnett, while wearing plainclothes, were patrolling in an unmarked car in the vicinity of West Burnside Avenue ("West Burnside") and Loring Place South ("Loring Place") in the Bronx. Oktrova, who was familiar with the area from prior assignments, described the neighborhood as "a high crime area with high shootings and high robbery incidents."
Oktrova and McGrisken testified that while their patrol car was traveling west on West Burnside towards its intersection with Loring Place, they observed defendants running east from the intersection toward the officers' vehicle. At first, Oktrova testified, he thought defendants were running towards a bus stop, but looked and saw that no bus was in the area. Oktrova stated that defendants looked "very nervous." He added that "[o]ne of them had a backpack in front of him and as he was running and looking back, he shifted it a few times from side to side." Oktrova testified that he wasn't sure why defendants were running down the street and thought they might be crime victims. According to Oktrova, after defendants, moving east, ran past the vehicle moving west, a discussion took place among the officers about them. By that time, Oktrova testified, he and the other officers had been observing defendants for about 10 to 15 seconds.
According to McGrisken, Hernandez carried "a plastic bag, a bookbag."
Sergeant Barnett, who was driving, then made a U-turn to drive east down West Burnside to follow defendants. At the point the officers began following defendants, they had not received a "radio run" or any other communication about a possible crime in the area.
As the police car approached defendants, Oktrova testified, defendants continued to run away from it while turning to look behind them at the vehicle. The officers pulled up next to defendants after they had crossed the intersection of West Burnside and Andrews Avenue South ("Andrews.") Oktrova testified that he identified himself as a police officer and asked defendants if they were all right. According to Oktrova, defendants ignored him and kept running away from the police vehicle.
According to McGrisken, as the police vehicle approached them from the rear, defendants slowed down to "a jog into a walk."
According to Oktrova, defendants, still running from the vehicle, separated; defendant Ramon Hernandez crossed to the north side of West Burnside and defendant Fidel Matos continued east. The vehicle stopped, and Oktrova exited the vehicle to follow Hernandez. At that point, Oktrova testified, Hernandez had slowed to a fast walk. Oktrova followed Hernandez at a fast walk, about a car-length behind. Then, Oktrova testified, "I told him to hold on, I identified myself as police again, at which point the bag [Hernandez] was carrying ... dropped to the ground and he couldn't go any further, because there was a parked car there, and [Hernandez] turned around and finally came to a stop." Hernandez turned around to face Oktrova, and at that point, he testified, he noticed blood on the knuckles and fingers of one of Hernandez's hands.
After stopping Hernandez, Oktrova observed Officers Barnett and McGrisken running after Matos. Oktrova approached Hernandez and again asked if everything was OK. Hernandez responded "[Y]eah, everything is good, we were just drinking." At that point, Oktrova said, he "detained" Hernandez. Oktrova frisked Hernandez and called for an additional police unit for backup. At some point, Oktrova placed Hernandez in handcuffs, but did not remember when.
McGrisken testified that, after defendants split up and Oktrova exited the vehicle to follow Hernandez, he exited to follow Matos, who was moving east on West Burnside away from him and the police vehicle. McGrisken testified that he identified himself by "pretty much scream[ing] ... police," whereupon Matos turned around, looked at him, and started running away. McGrisken ran after him, and when he neared Matos told him "show me your hands, stop" but Matos "refused to do so." McGrisken then tackled Matos. When Matos resisted, McGrisken "was able to get him subdued in handcuffs ." McGrisken testified that, between the time McGrisken exited the vehicle until he tackled Matos, he did not observe Oktrova and Hernandez.
Three to five minutes later, McGrisken testified, he received a police radio transmission that other officers, who had been canvassing the area at the request of McGrisken's unit, had located the complainant, who said he had been robbed at the intersection of West Burnside and Loring Place. The officers who had found the complainant drove him over to view defendants. When McGrisken's unit was informed that the complainant had identified defendants as his assailants, Matos and Hernandez were placed under arrest.
The People also called Officer Steven Lopez, a member of the unit which had found the complainant, to testify about the circumstances of the showup identification. On the early morning of February 5, 2015, Lopez was patrolling the Bronx in a police vehicle with Lieutenant To and Officer Christopher Lopez. At about 3:10 a.m., Lopez's unit received a radio transmission that other officers were pursuing two individuals on foot and were asking for backup. When Lopez's unit arrived at the scene, Oktrova, McGrisken, and Barnett had stopped and were detaining defendants.
At Barnett's request, Lopez's unit left to canvass for a victim or a weapon in the area from which defendants had been seen running. Lopez testified that, about a minute later, his unit located the complainant, in front of a residential building. The complainant told Lopez that two male Hispanics had just robbed him. The officers told the complainant that two men had been detained nearby and the officers wanted the complainant to view them. The officers then drove the complainant to defendants and the officers who had detained them. Lopez testified that defendants were standing, surrounded by officers; he could not recall if they were handcuffed. Lopez testified that the complainant, who was sitting in the back of the police vehicle, identified defendants as his assailants; Lopez then informed To and Christopher Lopez about the positive identification.
Discussion
Defendants' Encounter with the Officers
I first address the lawfulness of the police encounter with defendants before the showup identification. The question is whether the encounter, which culminated with officers pursuing, forcibly stopping, and detaining defendants, comported with the four-level standard for intrusive conduct which the Court of Appeals set forth in People v. De Bour (40 N.Y.2d 210, 223 [1976] ). The first level of intrusion permits an officer to approach a citizen to request information "when there is some objective credible reason for that interference, not necessarily indicative of criminality" (id. ). The second level, the common-law right of inquiry, permits an officer "to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure, when there is "a founded suspicion that criminality is afoot" (id. ). The third level permits "a forcible stop and detention" of a citizen if an officer "entertains a reasonable suspicion that [the citizen] has committed, is committing or is about to commit a felony or misdemeanor" (id. ). Finally, the fourth level permits an officer to arrest a citizen if the officer has probable cause to believe that the citizen has committed, is committing, or is about to commit a crime (id. ).
In evaluating whether an officer's intrusion was justified, a court must consider the totality of the circumstances that were presented to the officer (see People v. Graham, 211 A.D.2d 55 [1st Dept 1995], lv denied 86 N.Y.2d 795 [1995] ). Moreover, an officer's intrusion must be justified by the information he possessed when he began that intrusion; a subsequent event or observation cannot validate a prior police action that was unjustified at its inception (see De Bour, 40 N.Y.2d at 215 ).
In this case, when the officers first observed defendants, they were presented with the following circumstances: (1) they observed defendants running down the street towards them; (2) defendants kept looking back; and (3) the officers were patrolling a high-crime area . As defendants acknowledge, when presented with those circumstances, the officers, who had discussed the situation with their colleagues, had an objective and credible reason for conducting a De Bour level-one intrusion by approaching defendants in their vehicle and asking them "nonthreatening questions regarding, for instance, identity, address or destination" (see People v. Hollman, 79 N.Y.2d 181, 185 [1992] ). Here, Oktrova's question whether "everything was O.K." after he had identified himself as a police officer qualified as a permissible level-one intrusion (see People v. Ferrell, 266 A.D.2d 560, 560 [1st Dept 1999] [police inquiry was based on objectively credible reasons where defendant was seen running at full speed and glancing over his shoulder in a robbery-prone location at night] ).
The People rely on these three factors as grounds for the police conduct preceding the level-three intrusion. See footnote 7 infra.
Contrary to the People's position, the circumstances did not justify a level-two intrusion, which requires a founded suspicion that criminality is afoot (see De Bour, 40 N.Y.2d at 223 ). That quantum of proof requires a "present indication of criminality based on observable conduct or reliable hearsay information" (People v. Boulware, 130 A.D.2d 370, 373 [1st Dept 1987] ).
Innocuous or at most equivocal behavior alone cannot lead to a founded suspicion that criminality is afoot (see People v. Brannon, 16 NY3d 596, 602 [2011] ; People v. Moore, 6 NY3d 496, 501 [2006] ; People v. Watson, 189 A.D.2d 790, 791 [2d Dept 1993] [the defendant's conduct in running "at an extremely fast rate of speed" down the street, while looking over his shoulder and clutching a brown paper bag, was "not indicative that criminal activity was afoot"]; People v. Campbell, 160 A.D.2d 363, 364 [1st Dept 1990], affd 76 N.Y.2d 921 [1990] [where the defendant appeared startled at the sight of police officers and began to walk away, police lacked a founded suspicion of criminality] ). In the case upon which the People principally cite in support, People v. Brimmage (161 A.D.2d 379 [1st Dept 1990]lv denied 76 N.Y.2d 853 [1990] ), is inapposite. In Brimmage, police officers observed the defendant "running down the street while looking over his shoulder, and running into oncoming traffic, and frantically waving in an attempt to hail a cab" (161 A.D.2d at 379 ). Unlike defendants in this case, the reckless actions of the defendant in Brimmage evidenced a high degree of desperation, giving rise to a founded suspicion that criminality was afoot.
I turn to whether Oktrova and McGrisken were justified in exiting the police vehicle, pursuing defendants on foot, and forcibly detaining them. Those actions constituted a level-three intrusion which commenced with the officers' pursuit (see People v. Holmes, 81 N.Y.2d 1056, 1057–508 [1993] ; People v. Martinez, 80 N.Y.2d 444, 447 [1992] [police "may ... pursue an individual if they have information which ... provides them with a reasonable suspicion that a crime has been, is being, or is about to be committed"]; Matter of Emmanuel O., 32 AD3d 948, 949 [1st Dept 2006] ). Accordingly, the officers' actions would have been justified only if they reasonably suspected that defendants had committed a crime (see De Bour, 40 N.Y.2d at 210 ). Oktrova and McGrisken, however, lacked such reasonable suspicion. Importantly, when the officers pursued and detained defendants, they had not received a radio run or any other information that any crime had recently been committed in the vicinity.
The People contend that the totality of the circumstances provided reasonable suspicion. In addition to the factors justifying the level-one intrusion, discussed above, the People point to defendants' failure to answer Oktrova's question or otherwise engage with the officers and (2) their continued movement away from the vehicle after Oktrova identified himself as a police officer and tried to question them. However, it is well-settled that a person's failure to respond to an officer's questions and flight from the officer do not by themselves justify pursuit:
As noted, conflicting testimony was offered as to whether defendants ran or walked quickly from the vehicle.
An individual to whom a police officer addresses a question has a constitutional right not to respond. He may remain silent or walk or run away.... Though the police officer may endeavor to complete the interrogation, he may not pursue, absent probable cause ..., seize or search the individual ... even though he ran away.
(People v. Howard, 50 N.Y.2d 583, 586 [1980] ; see also People v. Holmes, 81 N.Y.2d 1056, 1058 [1993] ["(f)light alone ... even ... in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit"] ).
The police are justified in pursuing a citizen who they have approached to make a common-law inquiry, under circumstances that entitle a level-two intrusion, if that citizen takes flight immediately upon their approach (see People v. Holmes, 81 N.Y.2d 1056, 1057–58 [1993] ; Matter of Jarvis H., 94 AD3d 570, 571 [2012] ). But where, as is the case here, the circumstances only permit the police to conduct a level-one intrusion by approaching to ask information, the citizen's immediate flight will not elevate the encounter to a point at which pursuit is justified (see People v. Crawford, 89 AD3d 422, 423 [1st Dept 2011] ).
The other circumstances of the police encounter, whether considered separately or together, do not justify a level-three intrusion. The fact that the defendants were running on the street late at night, without any report of a crime or a description of a suspect, only authorized a level-one encounter. Significantly, when defendants first drew Oktrova's and McGrisken's attention, they were already running and were not fleeing from the officers (see Watson, 189 A.D.2d at 79 [where the defendant was in the process of running down the street when the police first observed him, only a level-one intrusion was justified]; People v. Ferrell, 266 Ad2d 560 [2d Dept 1999] [the police's observation of the defendant quickly pedaling a bicycle, while looking around and behind him, in an area where perpetrators on bicycles had committed numerous robberies, only supported a level-one inquiry).
The additional fact that defendants kept looking behind them as they ran did not give rise to a reasonable suspicion that defendants had committed a crime (see People v. Blyden, 239 A.D.2d 301, 302 [1st Dept 1997] [the police's observation of the defendant running at full speed in a high-crime area, while glancing over his shoulder, only supported a level-one intrusion] ).
In their papers, the People do not contend that Oktrova's observation that defendants, while running, looked "nervous" constitutes a factor that justifies a level-three intrusion. But in any event, that conduct would not support the level-three intrusion (see e.g. People v. Garcia, 85 AD3d 28 [1st Dept 2011], mod for other reasons 20 NY3d 317 [2012] [police observation of a defendant's nervousness does not provide a founded suspicion of criminality] ).
Moreover, the People do not contend that the fact that Hernandez, while running, either wore a backpack which he adjusted a few times (according to Oktrova's testimony) or carried a book bag (according to McGrisken's) gave rise to a reasonable suspicion of his criminal behavior. A defendant's possession of a common item like a backpack or nondescript bag, does not give rise to reasonable suspicion (Compare Watson, 189 A.D.2d at 792 ["defendant's conduct in running and clutching a brown paper grocery bag was not indicative that criminal activity was afoot"]; and People v. Rodriguez, 230 A.D.2d 923 [2d Dept 1996] [no founded suspicion that criminality was afoot where the defendant was carrying a Macy's shopping bag]; with People v. Williamson, 107 A.D.2d 727, 728 [2d Dept 1985] [where the defendant was observed walking at 4:45 a.m. in a neighborhood know for a high burglary rate, carrying two large plastic garbage bats which appeared to contain large, bulky items, the circumstances justified his limited detention for the purposes of inquiry] ).
Defendants' presence in a high-crime area also insufficiently justified the level-three intrusion. When evaluating the legality of police conduct, a defendant's presence in a high-crime area is a relevant factor for a court considering the totality of the circumstances (see People v. Arvielle, 133 A.D.2d 589 [1st Dept 1987] [finding defendant's presence where others had committed crimes did not support a level-three intrusion] ). In this case, the overall circumstances which presented to Oktrova and McGrisken when they began pursuing defendants were innocuous or at most equivocal (Compare Matter of Emmanuel O., 32 AD3d 948, 949–950 (2d Dept 2006] [officers lacked reasonable suspicion to pursue the defendant who was present in a high-crime area and, after a few initial questions from plain-clothed officers, abruptly fled]; with People v. Ingram, 114 AD3d 1290 [4th Dept 2014] [pursuit was justified where the defendant, who was present in a high-crime area outside a house in which an anonymous informer had claimed to have seen guns, fled while grabbing at his jacket pocket when the police approached] ).
Contrary to the People's contention, Oktrova's observation of blood on Hernandez's hand has no bearing on whether the level-three intrusion was justified. Oktrova saw the blood after he began pursuing Hernandez, when defendant had stopped because his path was blocked. The level-three intrusion, however, commenced when Oktrova exited the police vehicle to pursue Hernandez on foot. Accordingly, that observation could not have contributed to reasonable suspicion that would justify the pursuit. In addition, the blood that Oktrova observed could not have been a factor with respect to Matos because McGrisken, who pursued and seized Matos, was unaware of it.
The People contend that People v. Stephens, 47 AD3d 586 [1st Dept 2008] ) and People v. Martinez (133 A.D.2d 572 [1st Dept 1987] ) most strongly support their position because "[i]n both cases, the defendant's attempt to evade officers resulted in a heightened level of suspicion," justifying a level-three intrusion. In fact, the two cases are factually distinct from the case before me and actually support the conclusion that the level-three intrusion was unwarranted here. In Stephens, the testifying officer, while patrolling with two other plainclothes officers in an unmarked car, observed the defendant at 10:00 p.m. in an area where there had been a number of robberies at gunpoint. The defendant and another man were closely following a third person, while the defendant was clutching his waistband and holding his right arm tight against his body. The defendant also looked startled when he saw the police. The officer testified that, based on his training, he suspected that the defendant was carrying a concealed weapon. The officer stopped the vehicle and the other officers got out and approached defendant, who fled. The police then gave chase and apprehended the defendant. Denying the defendant's suppression motion, the Court found that the officer's observations gave rise to a founded suspicion of criminality, which escalated into reasonable suspicion when the defendant fled upon the officers' approach (47 AD3d at 589 ). In this case, none of Oktrova's and McGrisken's observations were as suspicious as that of a man being closely followed by a suspect who, based on his unusual behavior, a trained officer suspected of carrying a concealed firearm.
In Martinez, an officer testified that, while patrolling with two other plainclothes officers in an unmarked car, he observed the defendant, who was holding two cameras, run down the street with another man. Both men were looking over their shoulders as they ran. The police followed the men, who then split up; the defendant put down the cameras he was holding and started walking in the opposite direction from the other man, who continued running. Two officers stopped the defendant, and the testifying officer called in a request for any reports of recent crimes in the area. He learned that a foot patrol officer had found two complainants nearby whose two cameras had been stolen. The Court denied the defendant's suppression motion, finding that the defendant's stop was justified because his running while looking over his shoulder, his attempt to walk off in the opposite direction, and his abandonment of the two cameras when he observed the police following him, constituted "furtive" behavior which raised a reasonable suspicion of criminal activity (133 A.D.2d at 572 ). Here, neither defendant engaged in behavior as unusual and suspicious as first running down the street while holding two cameras and then abandoning them when followed by the police.
In sum, the totality of the circumstances did not create reasonable suspicion that defendants had committed, were committing, or were about to commit a crime. Accordingly, the physical evidence recovered from defendants or their dominion and control was the fruit of their unlawful search and seizure, and must be suppressed.
The showup identification procedure must also be suppressed. The People's claim of attenuation is unavailing because the identification occurred only a few minutes after defendants' unlawful seizure.
Accordingly, it is
ORDERED that the Bronx County District Attorney is restrained and precluded from using, upon the trial of the above-named defendants (1) the physical evidence recovered from the search of defendants' persons on February 5, 2015 and (2) the identification procedure on February 5, 2015.
The foregoing constitutes the decision and order of the Court.