Opinion
No. 03779–2010.
2013-02-6
The PEOPLE of the State of New York v. Griffik NEGRONI, Paul Ramsingh, Andrew Thompson, Defendants.
Cheryl Thill, Esq., Assistant District Attorney, Bronx County District Attorney's Office, Bronx, NY. Lewis Mazzone, Esq., Jericho, NY, Attorney for Griffik Negroni.
Cheryl Thill, Esq., Assistant District Attorney, Bronx County District Attorney's Office, Bronx, NY. Lewis Mazzone, Esq., Jericho, NY, Attorney for Griffik Negroni.
Brian J. Sullivan, Esq., Port Chester, NY, Attorney for Paul Ramsingh.
Scott Simpson, Esq., The Bronx Defenders, Bronx, NY, Attorney for Andrew Thompson.
MARGARET L. CLANCY, J.
Defendants are jointly charged with Criminal Possession of a Weapon in the Second Degree, and other charges, for a gun recovered in the trunk of a car during a car stop. On July 18, 2012, the court commenced a Mapp/Dunaway hearing on each of the defendants' motions to suppress the gun. The People called two witnesses at the hearing, Police Officers Brian Manning and Felix Gross, whose testimony the court credits unless otherwise indicated. Defendant Thompson called Assistant District Attorney Jeremy Hamburgh, whose testimony the court credits. Negroni and Ramsingh did not present any evidence. After a review of the hearing testimony, the arguments of counsel and the relevant case law, defendants' motions to suppress the gun are granted. The following constitutes the court's findings of fact and conclusions of law.
Although the court also granted a Huntley/Dunaway hearing as to defendants Ramsingh and Thompson, the parties agreed to conduct that portion of the suppression hearing at a later time.
FINDINGS OF FACT
On July 12, 2010, Officer Brian Manning from the Bronx Anti Crime Unit was on patrol in an unmarked police car in the vicinity of 4053 Carpenter Avenue in Bronx County. Lieutenant Gibson was driving, and fellow officers Gross and Siciliano were in the vehicle as well. Officer Felix Gross, from the 43rd Precinct Detective Squad, was the front passenger. At approximately 12:20 am, Manning observed a blue four door Audi make a left turn at the intersection of 230th Street and Carpenter Avenue without signaling. Gibson decided to stop the car due to the traffic infraction. For tactical reasons, the officers followed the car for about a block before stopping it so that the officers could decide how they each would approach. The officers activated their lights and sirens to stop the car. Manning observed defendant Thompson was the driver, defendant Negroni was the front passenger, and defendant Ramsingh was the rear right passenger.
After stopping the car, Manning and Gibson approached the back right side, Siciliano approached the driver, and Gross remained toward the rear driver's side of the car. From this vantage point, Manning could only see the top of Ramsingh's head in the back of the car. He could not see anyone doing anything in the front seat, but he and Gross saw Ramsingh moving a lot in the back seat. Manning saw Ramsingh making what he referred to as “furtive,” “favorable,” or “fidgety” movements in the back of the car. Ramsingh was “contorting his body,” “bobbing up and down to the left side” toward the center armrest, and kept turning his head. Manning could not see Ramsingh's hands. Although he testified that there was a “high safety risk” because he could not see Ramsingh's hands and did not know what Ramsingh was doing, he acknowledged that Ramsingh could have been doing anything, including tying his shoe or scratching his leg. Gross testified that he saw Ramsingh “dipping” in the back seat. Gross also acknowledged that he did not know what Ramsingh was doing, and that Ramsingh could have been tying his shoes or picking something up. Ramsingh kept looking on the left side, and then back at the officers. Manning could not see Thompson or Negroni making any movements. Manning identified himself as a police officer, asked Ramsingh how his night was going, and where they were coming from. Ramsingh was fidgety, sweating profusely, and appeared very nervous to the extent that Manning claimed that he could see Ramsingh's heart beating rapidly through his shirt. Ramsingh could not sit still and kept talking to Manning, asking him questions. Manning saw a partially open armrest in the back seat, leading to the trunk to Ramsingh's left. Manning then asked Ramsingh if he had any weapons, to which Ramsingh responded that he did not. Manning then asked if Ramsingh would mind if he checked, and Ramsingh responded, “no, do your thing, do your thing.” Manning then asked him to step out of the car for safety reasons, and he told Ramsingh that he was going to give him a quick frisk to make sure he did not have any weapons. After the frisk Manning moved Ramsingh toward the back of the car. Manning then identified himself as a police officer to Negroni and asked him to step out of the vehicle. Manning also asked Negroni if he had any weapons, to which Negroni said that he did not. Manning then performed a “quick frisk to his waistband” and asked Negroni to step to the back of the car. Gibson was standing next to Manning. Manning did not know where Gross was positioned. Manning did not draw his gun at any point during this encounter.
While Manning spoke with Ramsingh and Negroni, Siciliano talked to Thompson, who was still in the driver's seat. Thompson was cooperative at all times. He was also calm and did not appear to be nervous. Once Negroni stepped out of the car, Siciliano asked Thompson to do the same. Thompson was also frisked. Thompson then stepped to the rear of the car where Manning spoke with all three defendants while Gross searched the front and back seat area inside of the car. Contrary to Manning's testimony, Gross testified that the rear armrest was up slightly, and that he discovered the opening to the trunk when he put the armrest down. In any event, Gross acknowledged that he had to pull the armrest down to get his arm into the trunk. There was no door behind the armrest leading to the trunk, only a vinyl flap that was moved to one side and exposed the trunk. Gross stuck his arm in the trunk and “felt around” and felt a plastic bag “with something hard in it.” He did not know exactly what it was but he believed it to be a gun based on his prior training. At this point, Manning testified that he heard Gross say that they might have “lunch,” a term used by officers on the street to indicate a possible firearm. In contrast, Gross testified that he did not say anything to his fellow officers except to place the defendants back into the car, and that he did not say “lunch” until he actually recovered the item and confirmed that it was a gun. Gross did not pull out the bag because he did not want the defendants to see what he had; he wanted them back in the car to limit their movement. Manning then asked the defendants to have a seat inside the car for what he also claimed were tactical and safety reasons. Defendants were not handcuffed and the armrest was no longer open at this point.
Although Manning testified that he only heard Gross say “lunch” one time from within the car, he later contradicted himself and testified that he heard it when Gross actually recovered the gun from the trunk. Due to this conflicting testimony, it is not clear whether Gross said “lunch” after feeling what he believed to be a gun from within the car, or after he physically recovered it from the trunk.
When the court asked Gross if he was fearful someone could pull the gun out of the trunk if the defendants were placed back in car, he credibly testified that it was tactically better to put them back into the car so that no one could get hurt. Gross testified that the officers could watch and see what they were doing, and he noted that the gun was in a bag and someone would have to unravel it and pull it out.
Gross then asked Thompson something to the effect of “do you mind if I check the trunk?,” “do you mind opening the trunk?,” or “can you open the trunk?” Thompson was very cooperative and said, “go right ahead” and “popped the trunk” for them. When Gross asked for permission, Thompson was separate from the other defendants and was standing with Siciliano. Once the defendants were seated in the car, Officer Gross searched the trunk and recovered a loaded 9 millimeter semiautomatic firearm which was located in a blanket within a white plastic bag next to a speaker in the trunk, closer to the driver's side of the car. All three defendants were then placed under arrest.
Manning did not see the gun until the defendants were in handcuffs and were placed in a police van that arrived to assist the officers. Gross gave the gun to Gibson, who later placed it back in the trunk in the bag to take a picture of it while Manning was processing the arrests at the 48th Precinct. The pictures of the back seat and of the trunk interior were introduced in evidence at the hearing as People's Exhibit 1, 2 and 3. Gibson later gave the gun to Manning to voucher. While the arrests were being processed, Manning issued a summons to Thompson at the precinct for his failure to signal. The original summons could not be located at the time of the hearing.
Assistant District Attorney Jeremy Hamburgh testified that he had no independent recollection of working in the complaint room on July 12, 2010. He did, however, identify the paperwork he generated after speaking to Manning. In his summary of the facts (Defense Exhibit E) it appeared that Manning told him that Gross went into the rear of the car and pulled down the armrest.
Conclusions of Law
Based on the facts and circumstances presented at the hearing, the court finds that the officers had probable cause to stop the car for a traffic infraction. It is the police conduct following the stop, and the legal justification for that conduct, that is at issue. In this regard, the People argue that defendants Negroni and Ramsingh did not have standing to challenge the search, that a limited intrusion into the vehicle was warranted under the circumstances, and that the search of the trunk was consensual. For the following reasons, the court disagrees and grants the motions to suppress.
A.Standing
The People concede that Thompson has standing to contest the legality of the stop and the search. For the first time, however, the People argue in their brief that Negroni and Ramsingh do not have standing. This argument was not raised in their response to defendants' omnibus motions or at the suppression hearing. Ramsingh argues that the People have conceded that he has standing by virtue of their consenting to the Mapp hearing and not raising the issue at the hearing. In any event, Ramsingh argues that he has automatic standing because the charge is based on the statutory presumption of possession.
Where a defendant is charged with actual or constructive possession based solely on the statutory presumption of possession in an automobile, he will have automatic standing to challenge the legality of a search of the vehicle. (PL § 265.15[3]. People v. Cheatham, 54 AD3d 297, 299 [1st Dept 2008] [citing People v. Millan, 69 N.Y.2d 514 [1987]],appeal denied,11 NY3d 854). However, where the People assert that they are relying on more than a defendant's presence and will offer “evidence reasonably tending to show the defendant's actual or constructive possession of the [evidence seized], the People do not rely solely' on the statutory presumption” and the defendant will bear the burden of demonstrating a personal and legitimate expectation of privacy in the area searched. (Cheatham, 54 AD3d at 300–301).
While the People acknowledge that the Grand Jury in this case was instructed only as to the statutory presumption concerning possession, the People argue that they are not relying solely on the statutory presumption but are presenting additional evidence to establish constructive possession. That additional evidence consists of Ramsingh's proximity to the gun in the vehicle and “possibly statements made by defendant Thompson” to the police to establish possession. Therefore, the People continue, defendants Ramsingh and Negroni bear the burden of demonstrating both a possessory interest and a reasonable expectation of privacy in Thompson's trunk. The People maintain that Negroni and Ramsingh have not met this burden and, consequently, lack standing to challenge the search. The court disagrees.
In his statement to the police, Thompson says that when Ramsingh got into his car he was holding a hat in his hands. He also states that there was a “white something in it” but that he couldn't really see it. Presumably, this was a reference to the white plastic bag from which the gun was recovered. Thompson also states that Ramsingh was fidgeting around when the police pulled them over.
As a preliminary matter, the People incorrectly assert that Negroni was in the back seat of the vehicle when it was stopped. Since Negroni was in the front passenger seat and the People have not set forth any argument to establish his constructive possession of the gun in the trunk, the case against Negroni is clearly based solely on the statutory presumption. Therefore, Negroni has automatic standing to challenge the search and seizure of the gun. (Millan, 69 N.Y.2d 514).
As to Ramsingh, the court notes that his co-defendant's statement cannot be used against him at trial. In a decision dated October 21, 2011, this court granted a motion to sever Thompson's and Ramsingh's cases for trial because they each made statements implicating each other. As a consequence, Thompson's statement could never be admissible against Ramsingh without running afoul of the confrontation clause of the United States Constitution. Nor does the court agree that there is sufficient evidence to proceed on a theory of constructive possession. Without the statement, the People are left to rely only on Ramsingh's proximity to the gun and his furtive conduct to establish constructive possession of the gun. This evidence, however, remains insufficient to establish constructive possession.
To support a charge of constructive possession, the People “must show that the defendant exercised dominion or control' over the property by a sufficient level of control over the area in which the contraband is found.” (PL § 10.00 [8]. People v. Manini, 79 N.Y.2d 561, 573 [1992] ). Once again, the People concede that the Grand Jury in this case was instructed concerning the statutory presumption of possession in PL § 265.15(3). The People also concede that there is no evidence that Ramsingh owned the vehicle, exercised control over the vehicle, or had any privacy interest in the trunk of the vehicle. Although the People now argue that Ramsingh placed the gun into the trunk through the armrest area, the uncontested evidence at the hearing was that the officers could not see Ramsingh's hands and did not know what he was doing as they approached the vehicle. Without more, this evidence is insufficient to establish that Ramsingh had dominion and control over the trunk or the gun to support a constructive possession charge. ( See People v. Pearson, 75 N.Y.2d 1001 [1990] [evidence that defendant exited back room of grocery store and attempted to briskly leave when police arrived was legally insufficient to establish constructive possession of drugs in plain view in back room] ). Accordingly, Ramsingh may only be charged with possession based on the statutory presumption, giving him automatic standing to challenge the search and seizure of the gun. (Millan, 69 N.Y.2d 514).
B.The Initial Search
Any police encounter must be justified at its inception (People v. Wheeler, 2 NY3d 370, 374 [2004];see also People v. Packer, 49 AD3d 184, 185 [1st Dept 2008]; affirmed, 10 NY3d 915). This determination requires the application of the four-tier test for evaluating the propriety of police encounters as articulated by the Court of Appeals in People v. De Bour (40 N.Y.2d 210 [1976] ) and reaffirmed in People v. Hollman. (79 N.Y.2d 181 [1992] ). To question the passenger of a vehicle about whether they are in possession of a weapon requires a founded suspicion of criminality ( People v. Garcia, 2012 N.Y. Slip Op 8670 at *9–10 [Ct of App, Dec. 18, 2012] ). Any intrusion into a vehicle following a lawful traffic stop where the vehicle occupants have been removed and frisked requires a reasonable suspicion in the form of an actual and specific danger to an officer's safety and a substantial likelihood that there is a weapon in the vehicle. (Newman, 96 AD3d at 42 [citing Carvey, 89 N.Y.2d 707] ).
To ascertain whether Officer Gross had the requisite reasonable suspicion to intrude into the vehicle after defendants were already removed and frisked, the court must focus on whether his “conduct was reasonable in view of the totality of the circumstances.” (Newman, 96 AD3d at 42). A reasonable suspicion to justify the limited intrusion can be found in a combination of two factors—“movements within a car suggesting that the defendant was reaching for something that might be a weapon” and “some other suggestive factor” sufficient to justify a search of the area in which the movements occurred. (Newman, 96 AD3d at 42 [deception]; see also Carvey, 89 N.Y.2d 707 [passenger wearing bullet-proof vest] ). Contrary to the People's position, these factors were not present in this case.
Citing to People v. Newman (96 AD3d 34 [1st Dept 2012] ), the People argue that the circumstances of this case warranted a limited intrusion into the car because the police reasonably concluded that a weapon was in the vehicle that presented an actual and specific danger to their safety. In Newman, officers stopped a car for a traffic infraction and observed the occupants “moving a lot” as they “bent down putting something down and picking something up.” The officers saw all of the passengers moving as they approached, but the front seat passenger pretended to be sleeping when the officers began their inquiry. That passenger then immediately reacted when he was asked for the car paperwork by opening and closing the glove compartment right away without looking inside. That passenger then reached under the driver's seat as if he were looking for something, and the officer directed him to stop because he feared that the passenger might be reaching for a weapon. The occupants were then directed to step out of the car and they were frisked. Finding no weapons, an officer leaned into the car and shined his flashlight under the seat that the passenger was reaching under and discovered a gun. In denying suppression, the Newman court held that a limited intrusion into the car was permissible based on the information available to the police under the circumstances.
However, the Newman case involved a passenger pretending to be asleep, then behaving erratically, and reaching under the car seat in front of the police, in addition to the officer's claim that he feared that the passenger was reaching for a weapon. In contrast, the People in the instant matter are relying on nothing more than Ramsingh's purportedly “furtive” movements in the back seat, his nervousness, rapid heart beat, sweating, and constant questioning as giving rise to a reasonable suspicion that there could be a weapon in the car. Although Ramsingh was fidgety and bobbing up and down in the back of the car upon the officers' approach, he did not reach for anything in direct view of the officers. Defendants were cooperative by all accounts. No specific threat was presented by Ramsingh's conduct, and at no point did Officers Manning or Gross even testify that they feared that Ramsingh was reaching for a weapon. In fact, they both testified that they could not see the front passengers, they could only see Ramsingh's head, did not know what Ramsingh was doing, and acknowledged that he could have been doing anything, including tying his shoe, scratching his leg or picking something up.
It is well-settled that furtive movements and nervous behavior, without more, cannot provide the police with a founded suspicion of criminality. ( See People v. Garcia, 2012 N.Y. Slip Op 8670 at *10 [Ct of App, Dec. 18, 2012] [citing People v. Milaski, 62 N.Y.2d 147, 156 [1984]];People v. Gonzalez, 298 A.D.2d 133 [1st Dept 2002], appeal denied,99 N.Y.2d 614 [2003] ). In this regard, Ramsingh's conduct did not even justify the officer's question as to whether defendants “had any weapons” ( Garcia, 2012 N.Y. Slip Op 8670 at *9–10), let alone a search of the trunk based on reasonable suspicion. (Newman, 96 AD3d at 42).
To be clear, the court is not basing this ruling on the fact that the officers placed the defendants back into the car after Gross felt what he believed to be a gun. Officer Gross provided a credible explanation for that tactical decision. ( See People v. Grullon, 44 AD3d 516, 517 [1st Dept 2007], appeal denied,10 NY3d 765). Nevertheless, a police encounter must be valid from its inception (Wheeler, 2 NY3d at 374;Packer, 49 AD3d at 185), and a police encounter can never be “validated by a later-acquired suspicion.” (People v. McIntosh, 96 N.Y.2d 521, 527 [2001] [citing De Bour, 40 N.Y.2d at 215–16 [1976]] ).
The court also takes issue with the People's argument that the danger would have increased exponentially had the officer not reached into the trunk and instead placed the defendants back into the car after issuing a summons. As the Court of Appeals has held, “it is unrealistic to assume, ... that having been stopped and questioned without incident, a suspect who is about to be released and permitted to proceed on his way would, upon reentry into his vehicle, reach for a concealed weapon and threaten the departing ... officer's safety.” (People v. Torres, 74 N.Y.2d 224, 231 [1989] ). “[S]uch a far-fetched scenario is an insufficient basis upon which to predicate the substantial intrusion” in this case. (Torres, 74 N.Y.2d at 230–31 [citing De Bour, 40 N.Y.2d 210] ). Accordingly, in the absence of any “objective indicators which could lead to a reasonable conclusion that there was a substantial likelihood that a weapon was located in ... the vehicle (People v. Hackett, 47 AD3d 1122, 1124 [3d Dept 2008] [citing Torres, 74 N.Y.2d 224] ), the initial search of the trunk through the opening behind the armrest was unlawful.
C. Consent
The People's argument that the officers obtained consent to search the trunk is equally unavailing. The People have the “heavy burden” of proving, by clear and convincing evidence, the voluntariness of any purported consent, and the trial court must determine voluntariness based on the totality of the circumstances. (People v. Gonzalez, 39 N.Y.2d 122, 128 [1976] [citations omitted]; People v. Kuhn, 33 N.Y.2d 203, 208 [1973] [citations omitted]; People v. Marshall, 6 AD3d 237 [1st Dept 2004], appeal denied,2 NY3d 802;People v. Richardson, 229 A.D.2d 316 [1st Dept 1996], appeal dismissed,89 N.Y.2d 933 [1997] ). The People have failed to meet that burden in this case.
The People argue that the objective credible evidence establishes that Thompson freely gave his consent to search the trunk. It is true that Thompson verbally replied that Gross could search the trunk and even “popped the trunk” for the officers. However, as the First Department has noted in addressing the validity of a purported consent to search, “once improperly initiated police conduct is established, a directly ensuing consent to search will be deemed invalid as a matter of law.” (People v. Packer, 49 AD3d at 188). The court has already determined that the officers in the instant matter lacked the legal justification to either ask the defendants whether they possessed any weapons or to conduct a search of the vehicle. It is undisputed that this police conduct occurred prior to Gross asking Thompson for permission to search the trunk. Given the nature of the intrusion that occurred immediately before the purported consent, the court cannot conclude that the People have met their burden of proving that the consent was not the product of “implicit” or “subtle” coercion. (People v. Packer, 49 AD3d at 188). On the contrary, the court finds that the purported consent was vitiated by the fact that Gross had already conducted a search of the trunk from within the car without legal justification. As the First Department observed in Packer, a reasonable person in defendant's situation “could not have been expected to entertain the seemingly improbable and certainly counterintuitive hypothesis that [the officer] now required permission to do what he had, under the apparent authority of the badge, done without permission only a moment earlier.” (Packer, 49 AD3d at 189). Accordingly, the People have failed to meet their heavy burden of proving the voluntariness of Thompson's purported consent.
In sum, the court finds that Ramsingh and Negroni have standing to challenge the seizure of the gun. The court also finds that the initial search of the trunk from within the car was unlawful, and that the consent to search the trunk that was obtained subsequent to the unlawful search was invalid. Accordingly, the recovery of the gun was unlawful and defendants' motions to suppress the gun are granted.
This opinion constitutes the decision and order of the court.