Opinion
3759/2014
04-21-2016
The People of the State of New York v. Javier Pendley, Defendants.
For the People OFFICE OF KENNETH THOMPSON, ESQ. KINGS COUNTY DISTRICT ATTORNEY 350 Jay Street Brooklyn, New York 11201 By: Assistant District Attorney Stephen Matthew Suhovsky, Esq. 718-250-2000 For the Defense Andrew Brian Stoll STOLL, GLICKMAN & BELLINA, LLP 475 Atlantic Avenue, Floor 3 Brooklyn, NY 11217-1812 718-852-710
For the People OFFICE OF KENNETH THOMPSON, ESQ. KINGS COUNTY DISTRICT ATTORNEY 350 Jay Street Brooklyn, New York 11201 By: Assistant District Attorney Stephen Matthew Suhovsky, Esq. 718-250-2000 For the Defense Andrew Brian Stoll STOLL, GLICKMAN & BELLINA, LLP 475 Atlantic Avenue, Floor 3 Brooklyn, NY 11217-1812 718-852-710 ShawnDya L. Simpson, J.
The defendant is charged with Criminal Possession of a Firearm (Penal Law § 265.01-b (1)), Criminal Possession of Marihuana in the Second Degree (Penal Law § 221.25), Criminal Possession of Marihuana in the Third Degree (Penal Law § 221.20), Criminal Possession of Marihuana in the Fourth Degree (Penal Law § 221.15), Criminal Possession of Marihuana in the Fifth Degree (Penal Law § 221.10 (2)), and Unlawful Possession of Marihuana (Penal Law § 221.05). The defendant has made a motion pursuant to Criminal Procedure Law (CPL) §§ 710.20 and 710.60 to suppress the marihuana and two separate statements allegedly made to the police. On March 8 and 11, 2016, a combined Huntley/Mapp/Dunaway hearing was conducted by the court.
Going forward, the People have the burden of establishing that the police's conduct was lawful (People v. Malinsky, 15 NY2d 86, 262 N.Y.S.2d 65 [1965], People v. Wise, 46 NY2d 321, 413 N.Y.S.2d 334 [1978], People v. Bouton, 50 NY2d 130, 428 N.Y.S.2d 218 [1980]). On a motion to suppress, the People carry the burden of proving probable cause or reasonable suspicion, by a preponderance of the evidence (United States v. Goines, 604 F. Supp. 2d 533 [E.D.NY 2009]). For the foregoing reasons, the defendant's motions to suppress are granted.
FINDINGS OF FACT
On May 8, 2014, at approximately 3:15 p.m., Detective Walier Rahman was in plainclothes inside of 1263 Lincoln Place in Kings county with about forty to fifty other officers after having executed a search warrant at 1259 Lincoln Place. Detective Rahman is an investigator with the Brooklyn North Narcotics Division. He has been with the Brooklyn North Narcotics Division for approximately twelve years and has been a police officer for about twenty-two years. Detective Rahman was assigned to work with Detective Steve LaFourtune to search apartment 2R at 1259 Lincoln Place. Detective Rahman made entry to the apartment after various strikes to the metal door. Detective Rahman observed five individuals inside after entering the apartment and one exit through the bedroom window and into the fire escape, after which Detective Rahman gave chase. The individual whom Detective Rahman followed entered 1263 Lincoln Place and he described him as a male black wearing a brown hoodie, khaki pants, medium in age and build. Detective Rahman testified that he also saw another black male and a black female head toward 1263 Lincoln Place through the basement.
Detective Rahman further testified that he headed out to the sidewalk and met Detective Cardinal and other officers and entered 1263 Lincoln Place through the front entrance to the building. There were several other officers inside the building when he entered. 1263 Lincoln was described as a three story building with two apartments on each floor. When Detective Rahman entered, there were officers on the first and second floors and he headed to the third floor. Detective Rahman stated that he observed an open brown door marked 3L. There were two apartments on the third floor, 3L was to his left as he entered and 3R, to his right. Detective Rahman testified that he did not knock the door, but he observed a black male, slender build, tall, whom he identified in the courtroom, inside apartment 3L. Detective Rahman stated that he observed a strong marihuana odor emanating from the apartment and that he also saw the individual with a clear plastic ziploc bag in his hand that had leafy green substance inside. Detective Rahman also testified that he observed a clear glass jar containing a green leafy substance on the floor about four feet from the door to apartment 3L.
Detective Rahman testified further that the defendant stated to him "I'm in the house" and "this marihuana is for my personal use. You can't touch me." Detective Rahman stated that he had not asked the defendant any questions before the defendant made the statements. Detective Rahman testified that he told the defendant "please, please cooperate. Don't move" and that he then went into the defendant's hallway to grab him. Detective Rahman testified that neither his nor Detective Cardinal's weapon was out. As Detective Rahman was arresting the defendant he is said to have resisted, pushing and kicking. After a couple of minutes, Detective Rahman observed a black female, named Corrine Prince, the co-defendant and wife of the defendant. Detective Rahman then arrested the defendant's wife. The jar of marihuana said to have been on the floor and the marihuana that was said to be in hand were retained by Detective Rahman.
DISCUSSION
Unreasonable searches and seizures are prohibited by both the federal and New York state constitutions (see Terry v. Ohio, 392 U.S. 1 [1968], People v. De Bour, 40 NY2d 210 [1976]). "The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. It further provides that no warrants shall issue, but upon probable cause. Based on this constitutional text, searches conducted outside the judicial process, without prior approval by a judge or a magistrate judge, are per se unreasonable subject only to a few specifically established and well-delineated exceptions" (City of Los Angeles v. Patel, 135 S. Ct. 2443, 2452 [2015]). Under De Bour, there are four levels of intrusion. The first level requires a rational, objective, and credible reason to stop and make an inquiry, not necessarily involving criminality (De Bour, 40 NY2d 210). The second level is the common-law right of inquiry that requires a founded suspicion of criminal activity (Id.). The third, requires reasonable suspicion that a felony or misdemeanor is being committed and the last requires probable cause that a crime has been committed (Id.). Further, "the court must weigh the degree of intrusion entailed against the precipitating and attending circumstances'", "concentrat[ing] on whether the conduct of the police was reasonable at the time in view of the totality of the circumstances" (People v. Sosa, 20 Misc 3d 1140A [1st Dist Ct., Nassau Co. 2008] citing People v. Salaman, 71 NY2d 869,870, [1988], People v. Lomiller, 30 AD3d 276, 277 [App. Div., 1st Dept. 2006] respectively).
The People assert that the warrantless search of the defendant's home and his seizure and arrest were lawful because the marihuana from the defendant's hand and jar were recovered in plain view. The plain view doctrine provides that law enforcement may seize items that are in plain view for which there is no legitimate expectation of privacy (See v. City of Seattle, 387 U.S. 541, 543 [1967]). The People assert that the jar was observed from outside in the common hallway and the marihuana in the defendant's hand was also visible to Detective Rahman from the common area hallway and it was recovered when Detective Rahman crossed the threshold of the door. However, the plain view doctrine operates where the seizure takes place under one of the exceptions to the warrant requirement, such as exigent circumstances, in "hot pursuit", or inadvertence (see e.g., Coolidge v. N.H., 403 U.S. 443 [1971], People v. Diaz, 81 N. Y.2d 106 [1993], abrogated on other grounds by Minn. v. Dickerson, 508 U.S. 366 [1993], see also, People v. Vega, 276 AD2d 414 [App. Div., 1st Dept. 2000]). Here such a showing is absent. Consequently, a lawful search and seizure is not shown herein.
The hearing failed to provide credible and reliable evidence concerning the purported plain view of the marihuana seized herein. The court is not persuaded by Detective Rahman's testimony that he observed marihuana in plain view from the common hallway of the subject building. The court finds the defendant's wife's testimony credible as she asserted facts against her husband's interest. The defendant's wife, Corrine Prince, testified that her husband possessed marihuana in their apartment. Ms. Prince also testified that she was awoken out of her sleep from her bedroom by a severe banging at the door of her apartment. Ms. Prince's testimony is consistent with the testimony of Detective Rahman that the officers were banging loudly on the metal doors of the apartments to execute the warrants. It appears that all the doors to 1263 Lincoln Place were knocked on as Detective Rahman testified that he observed officers on the first and second floors and he consequently proceeded to the third floor to search the premises that had not been. The defendant's door was opened as a consequence of the police banging on his door. Consequently, the People have failed to credibly establish that marihuana was observed in plain view from the common hallway of the subject building and that the defendant's door was opened when Detective Rahman first approached.
Further, for the search and seizure to be lawful there must have been consent or exigent circumstances, for example, to justify the seizure. There was no showing that there was an exigent circumstance which necessitated the officer's entry into the apartment (see People v. Lenart, 91 AD2d 132, 457 N.Y.S.2d 878 [App. Div., 2nd Dept. 1983]). There was not for example, reliable evidence that a child was in the apartment and that that child was in danger. There was not a reliable frightened eyewitness informant in this case who established an exigent circumstance (see e.g, People v. Rajnauth, 253 AD2d 444 [App. Div., 2nd Dept. 1998]). There was also no showing of a medical emergency (People v. Lenart, 91 AD2d 132) or that evidence was about to be destroyed to necessitate a warrantless entry (Matter of Kwok T., 43 NY2d 213 [1977]). There was no testimony provided from an officer that they feared that evidence would be destroyed and that that necessitated their entry into the defendant's apartment and seizure of the marihuana. Therefore, a showing of exigent circumstances was not established. Consequently, the warrantless search of the defendant's apartment was illegal. There has to be a legitimate reason for the police's search of the premises to assert a lawful seizure. In this case there was no exigent circumstance or warrant to give cause for the entry and seizure. The defendant's motion to suppress is therefore granted.
The hearing did not establish that the defendant consented to the warrentless search of his home. Consent to a search is shown where it is voluntary by a true act of the will of a free and unconstrained choice (People v. Kuhn , 33 NY2d 203, 351[1973], Schneckloth v. Bustamonte, 412 U.S. 218, [1973]). However, the facts adduced at the hearing demonstrate that the defendant's actions do not meet the preceding criteria. The defendant was accosted and immediately handcuffed at the threshold of his door according to Detective Rahman's testimony. Consequently, there is no indication that the entry and search was consensual or that the defendant exercised a "free and unconstrained choice."
See also, People v. Gonzalez, 39 NY2d 122, 128 [1976] and its progeny.
Accordingly, the defendant's motion to suppress is granted. Since the seizure and arrest were illegal statements allegedly made to the police are inadmissible as fruits of the poisons tree (People v. Donovan, 13 NY2d 148, 161 [1963]). Consequently, the defendant's Huntley motion is granted. The marihuana allegedly seized by the police and the statements made by the defendant are hereby suppressed and are inadmissable at trial. CONCLUSION
Accordingly, the defendant's Huntley/Mapp/Dunaway motions to suppress are granted.
This constitutes the decision, opinion and order of the Court. Dated: April 21, 2016 Brooklyn, New York ENTER, ________________________________ The Honorable ShawnDya L. Simpson Acting Justice of the Supreme Court