Opinion
No. 2022-51429 Ind No. 72222-22/001
12-02-2022
The People of the State of New York, v. Luis Pagan, Defendant.
JOHN J. FLYNN, Erie County District Attorney Rebecca A. Fioravanti, ADA Peter M. Pinelli, ADA Appearing for the People FRANK LoTEMPIO, III, ESQ. Appearing for Defendant
Unpublished Opinion
JOHN J. FLYNN, Erie County District Attorney Rebecca A. Fioravanti, ADA Peter M. Pinelli, ADA Appearing for the People
FRANK LoTEMPIO, III, ESQ. Appearing for Defendant
Suzanne Maxwell Barnes, J.
Defendant is charged by way of Indictment with a single count of Criminal Possession of a Weapon in the Second Degree, Penal Law Section 265.03(3). Defendant, by way of motion, sought to suppress the introduction of statements and certain physical evidence recovered from the vehicle he occupied following a traffic stop. A hearing was held on September 1, 2022, pursuant to People v Ingle, 36 N.Y.2d 413 (1975), People v Huntley (15 N.Y.2d 72 [1965], and Mapp v Ohio (367 U.S. 643 [1961]). Submission by Defendant relative to this hearing was received on September 29, 2022. The People submitted a response on October 21, 2022, and Defendant submitted a supplemental response on November 1, 2022. For the reasons set forth below, the motion is denied.
Findings of Fact
The credible hearing testimony and evidence revealed that on March 26, 2022, at approximately 4:30 p.m., Buffalo Police Officer Ryan Sanders was on routine patrol with Officer Dante Zawadzki, in a high crime area replete with "shootings, robberies, a lot of violent crimes," and home to one of the more violent gangs, the Central Park Gang. The officers observed a vehicle with "very dark tints" in the front windshield and the driver and front passenger windows in violation of Vehicle and Traffic Law §§ 375-12(a)(b)(1), (2). This traffic violation was subsequently confirmed by Buffalo Police Officer Earl Barber using a tint meter, which is a tool that is used to test the frequency of the light being transmitted through the window (see People's 3, 4, 5). The front two windows (driver and front passenger) and windshield were at 19%. The legal requirement is 70%. The occupants indicated the owner of the vehicle had a medical exemption for the tints, but they were unable to provide any documentation in support of this claim.
Upon pulling the vehicle over, Zawadzki, who was operating the police vehicle, approached the driver. Sanders, who was in the passenger seat of the police vehicle, approached the passenger, Luis Pagan (Defendant). Upon Sanders's initial approach, as evidenced by his body camera (see People's 1), the front passenger window was rolled down approximately two-thirds distance from the top, such that only one-third of the window was visible. The window was then completely down approximately 60 seconds into the stop. Upon approach, Sanders credibly testified that he observed Defendant attempting to "stuff" a darker-colored satchel bag between the passenger seat and the center console in an attempt to conceal it from the officer. The strap to the satchel appeared like "he attempted to take it off, but didn't," so it was "kind of like waving around a little bit" around Defendant's left arm. Sanders testified that Defendant appeared as though "he was like making sure, trying to make sure I couldn't see it."
From his vantage point, Sanders was able to observe the top right corner of the closed satchel with a large bulge protruding through the satchel that appeared to be the outline of a handle of a firearm. Sanders testified that the size of the protruding bulge was consistent with the size of a gun handle. Sanders credibly testified that his suspicion was instantly raised by this observation, particularly since both by training and experience, Sanders had encountered a number of satchel bags containing firearms.
As evidenced by Sanders's body camera video (People's 1), Defendant can be observed taking a deep breath upon Sanders's initial approach. Sanders testified that Defendant was breathing heavily throughout the encounter, "taking these long deep breaths... almost like he was calming himself." Defendant's seat remained in a reclined position throughout the entire encounter, and Defendant was likewise, in a reclined position. Although Defendant gestures throughout the initial interaction, it is primarily only with his right arm, and it seems unnatural that his left arm is largely immobile. However, Defendant does move his left arm multiple times later on during the encounter, and it is during these times that Sanders was able to better view the satchel. The satchel measured approximately nine inches by seven inches. Given the subsequent discovery of the satchel contents, it is clear that the bag would not be able to be fully secreted between the front passenger seat and the console, and would have been partially visible as Sanders testified (see People's Exhibit 7, 14).
During the initial part of the encounter, Sanders engaged both occupants with questions about the dark tint of the windows, as well as the fact that they indicated they were in the neighborhood to get a haircut. The investigative questioning by Sanders was polite, no threats or promises were made to either occupant, nor did either officer display their weapon. When Zawadzki rejoined at the driver's side after running a record check of the driver's license and registration, approximately three-and-one-half minutes after the stop, Sanders began focusing his questions on the satchel, credibly testifying at the hearing that he had already observed the bulge of what appeared to be the handle of a gun. At this juncture, Sanders asked, "Is there anything in the car, guys?" and particularly mentions the weed smell. Sanders then continues, "nothing crazy in the car, right?...no guns, bombs, drugs?" These questions were met with denials.
In response to Sanders's further questioning about weed, Defendant produced some weed from his hoodie pocket using both of his hands. Sanders then asked, "anybody got anything else on him? Are you sure? You stuffed that bag is why I'm asking ya." These questions were again met with denials. Pointing at the satchel, Sanders then specifically asked, "is there anything in that bag?," further evincing the fact that a portion of the bag was, in fact, visible to Sanders. Sanders then asked Defendant his name, and Defendant provided it, telling Sanders to run a check on it. Sanders instead instructed Defendant to step out of the vehicle. At this time, Sanders articulated that he was worried about the contents of the satchel (see People's 1). In response, Defendant turned to the driver and said "dale, dale," which in Spanish means "go, go." This can be heard from both body cameras (see People's 1, 2).
The next 30-60 seconds until Defendant is cuffed and removed from the vehicle is extremely tense with Sanders ordering Defendant not to move or reach and threatening the use of pepper spray. Sanders testified that his words and actions were in response to the threat posed by the satchel being so close to Defendant's hand.
Sanders removed the satchel from Defendant's person and placed it on the floorboard of the vehicle. Upon lifting the satchel, Sanders was able to determine that the weight of the bag was consistent with the weight of a gun. He also testified that the contents of the satchel felt like a firearm based upon his training and experience. Defendant was then cuffed in the vehicle and removed to the police vehicle. At this point, before the satchel is opened and searched, Sanders can be heard stating, "it's a gun," further corroborating that he observed what appeared to be the handle of a gun upon his initial approach. Zawadzki can also be heard exclaiming, "I seen his chest pounding" (see People's 1, 2). During the stop, Sanders testified that he was walking back and forth along the passenger side to get a better look at the satchel. Despite significant cross-examination, Sanders credibly testified that his eye-level vantage point provided a clearer view of the satchel than is visible on the chest-level body camera.
When Sanders emptied the bag, the handle of the gun was facing upward and was situated at the top of the bag closest to the zipper. Stuffed into this small satchel was a handgun with an extended magazine along with two additional extended magazines, all loaded with a total of 63 rounds. The handgun was also equipped with a switch to make it a fully automatic weapon.
This Court credits Officer Sanders's testimony in its entirety, finding that his testimony matches the body camera evidence, including his ability to have a better vantage point of the satchel in question than the angle of his body camera.
Ingle/Mapp
Automobile stops are lawful only when based on probable cause that a driver has committed a traffic violation; when based on a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime; or, when conducted pursuant to nonarbitrary, non-discriminatory, uniform highway traffic procedures (see People v Hinshaw, 35 N.Y.3d 427, 430 [2020]). Here, the straightforward facts demonstrate a violation of Vehicle and Traffic Law § 375. Thus, the initial stop of the vehicle was justified. The next inquiry concerns the search of the satchel.
At issue is Defendant's right to be free from an illegal search and seizure (US Const 4th, 14th Amends; NY Const, art I, § 12). The totality of the circumstances known to Officer Sanders created a reasonable suspicion that Defendant was involved in some criminal activity, entitling him, under People v DeBour, (40 N.Y.2d 210 [1976]), to detain Defendant, remove the bag from Defendant's person by dropping the bag to the floor mat and out of Defendant's reach and, further, to search the bag (see People v Dunbar, 183 A.D.3d 1263 [4th Dept. 2020]; People v Bowden, 87 A.D.3d 402, 405 [1st Dept. 2011]). Here, the totality of the circumstances certainly created the "specter that a weapon might be uncovered in the course of this investigation" (see Bowden, supra at 404).
From Sanders's initial approach, he observed Defendant attempting to stuff something down the side of the front passenger seat abutting the center console. He immediately observed what appeared to be the outline of the handle of a gun pressing against the top corner of the bag that was visible to him. The stop occurred in a high crime area with a vehicle that had front windshield, front driver, and passenger windows with 19% visibility, far less than the legal limit of 70%. Through his training and experience, Sanders was familiar with weapons being carried in satchel bags.
Defendant is observed to be breathing heavily throughout the encounter and can be seen on body camera (People's 1) taking a deep breath upon Sanders's approach. Defendant remained in an awkward, reclined position throughout the encounter, with his left arm nearly motionless, in contrast to the ample amount of gesturing made with his right arm while talking with Sanders. However, approximately 60 seconds prior to being detained and removed from the vehicle, Defendant does utilize his left arm to retrieve "weed" from his hoodie pocket, as well as multiple additional times thereafter. It is only then that Sanders advised that he was removing Defendant from the vehicle. This is met instantly with Defendant's order to "go, go" in Spanish causing Sanders to fear the occupants would attempt to flee. When Sanders cuffed Defendant and removed the satchel from Defendant's person to the floor of the vehicle for safety reasons, it was then that Sanders determined that the weight of the bag was consistent with the weight of a gun and that the contents felt like a gun.
The combination of Defendant's evasive actions, the visible outline of the gun handle, Defendant's order to the driver to flee, the additional observation of the weight of the bag being consistent with that of a weapon within Defendant's grabbable reach, and the fact that it felt like a gun, justified Sanders's conduct in opening the satchel after Defendant was detained in the police vehicle. Accordingly, this was "a constitutionally justified intrusion designed to protect the safety of the officers" (see People v Roberson, 155 A.D.3d 1683, 1684 [4th Dept 2017]. Based upon all of these circumstances, the officer was justified in opening the satchel (see also People v Pruitt, 158 A.D.3d 1138 [4th Dept 2018]; People v Torres, 74 N.Y.2d 224 [1989]; People v Brooks, 65 N.Y.2d 1021 [1985]).
Based upon the foregoing, the officer's actions were all justified, such that the subsequently recovered weapon is admissible.
Huntley
"Miranda v Arizona (384 U.S. 436 [1966]) requires that at the time a person is taken into custody or otherwise deprived of his freedom, he must be advised of his constitutional rights" (People v Yukl, 25 N.Y.2d 585, 588 [1969]). The questioning of Defendant at the scene by the officers was "merely investigatory and did not constitute custodial interrogation to which Miranda is applicable" (see People v Carbonaro, 134 A.D.3d 1543, 1547 [4th Dept 2015], [citations omitted]). All the statements made by Defendant prior to his arrest occurred at the scene, while neither handcuffed nor arrested, are admissible as "threshold crime scene inquiry designed to clarify the situation" that do not have to be preceded by Miranda warnings (see People v Shelton, 111 A.D.3d 1334 [4th Dept 2013]; People v Brown, 49 A.D.3d 1345, 1346 [4th Dept 2008]).
The statements made by Defendant after he was handcuffed, but prior to his arrest, were spontaneous and not in response to any police questioning. A statement that is spontaneous and not in response to any police questioning is considered voluntary as long as the spontaneity is genuine and not the result of inducement, provocation, encouragement, or acquiescence (see People v Maerling, 46 N.Y.2d 289, 302-303 [1978]).
The motion to suppress any and all statements is denied.
WHEREFORE, it is hereby ORDERED that the motion to suppress physical evidence and statements is DENIED.