Opinion
75334C-10.
Decided September 9, 2011.
Julia Mattson, Esq., Counsel for the Defendant.
Justin Daly, Assistant District Attorney, Office of the Bronx District Attorney.
Defendant is charged with aggravated unlicensed operation of a motor vehicle in the third degree (VTL 511.1 [a]), operating a motor vehicle without a license (VTL 509.1) and unlawful possession of marijuana (PL 221.05). Defendant moved, among other things, for suppression of three bags of marijuana and a statement made to the arresting officer on the grounds that they were unlawfully obtained in violation of N Y Const, art I, § 12, and U S Const, 4th Amendment, thus claiming they were fruits of an unlawful arrest. By decision dated February 15, 2011, Justice Gross ordered that a combined Mapp/Huntley hearing be conducted. On July 1, 2011, this matter was administratively transferred from Part 20, Justice Gross, to this court. A hearing on these issues commenced before this court on that date and concluded July 6, 2011. Upon its conclusion, and after hearing oral argument from both the defendant and the People, this court reserved decision.
On July 20, 2011, this court, after considering the oral arguments made and respective submissions by both the defendant and the people, and after reviewing the record, prior court proceedings and documents on file with the court, granted defendant's motion to suppress the three bags of marijuana. Defendant's motion to suppress the statement made to the arresting officer, however, was denied. This expands that decision.
Findings of Fact
At the hearing, the People called one witness: New York City Police Officer Joel Gomez. The defense called no witnesses. This court finds the witness's testimony credible to the extent indicated herein. Several issues of law concerning suppression, however, were raised. Officer Gomez testified that on December 3, 2010, from 3:00 p.m. until 11:35 p.m., he was on duty with his partner, performing general enforcement duties in uniform and a marked patrol car (H: 8). At approximately 10:22 p.m., they received a call regarding a motor vehicle accident and responded to Simpson Street and East 163rd Street. Upon arriving, Officer Gomez observed the defendant, Sincere Pinckney, speaking with a male later identified as Joey Scott. As he approached the defendant, he heard the defendant state: "I'm sorry, I just moved the car." Officer Gomez asked the two men whose vehicle it was, but received no response (H: 9).
Officer Gomez then crossed the street to speak with other witnesses, several of whom had been involved in the accident, in an attempt to obtain additional information (H: 11). One of those witnesses identified defendant as the person responsible for the accident, stating that he observed defendant's vehicle side-swipe three vehicles parked beside the curb (H: 12).
Returning to the defendant, Officer Gomez approached him to question him about the accident. Upon doing so, Officer Gomez observed the defendant standing with his hands in his pockets and asked him to remove them. The defendant complied and as he removed his hands, two red bag containing marijuana fell from his pocket. After seeing the bags, Officer Gomez proceeded to pat down defendant (H: 32). During the pat-down, Officer Gomez asked defendant if he had a valid driver's license; defendant stated that he did not (H: 35, 36). Defendant then provided Officer Gomez with his state identification card. Officer Gomez's partner ran defendant's client identification number in their vehicle's computer and discovered his license had been suspended due to a failure to pay child support (H: 34).
After completing the pat-down, Officer Gomez recovered the bags from the ground and identified the smell and look of the substance inside to be consistent with that of marijuana. He then placed defendant under arrest (H: 19). Upon searching defendant's jacket at the precinct, a third bag of marijuana was recovered (H: 21, 23).
Conclusions of Law
At a suppression hearing, the People have the burden of presenting evidence of reasonable cause to show the legality of the police conduct ( People v Baldwin, 25 NY2d 66; People v Malinsky, 15 NY2d 86). Once this burden has been met, the defendant is responsible for proving the conduct was illegal ( People v Berrios, 28 NY2d 361; Baldwin at 66). Evidence obtained by an unconstitutional search is inadmissible and vitiates conviction ( see Mapp v Ohio, 367 US 643).
In sustaining their burden, the People must demonstrate that the circumstances authorized the officer's behavior. In assessing the scope of intrusion permissible under a given set of circumstances, the New York Constitution contemplates weighing the officer's safety and the public interest against the individual's personal liberty ( People v De Bour, 40 NY2d 210 [citing Terry v Ohio's federal requirement of balancing the interests involved in a police inquiry]). In contrast to the Federal Constitution's emphasis on officer safety in search and seizure matters, the New York Constitution affords greater protection to an individual's privacy (see the Supplementary Practice Commentaries to CPL 140.50). Accordingly, New York has adopted standards considerably more protective of individual liberty than federal precedent mandates ( id.). People v De Bour establishes the basic framework for measuring the intrusiveness of a police action in New York ( De Bour, 40 NY2d 210). De Bour's first level of intrusion permits a law enforcement officer to approach a citizen and request information provided there is an objective, credible, and articulable reason to do so ( id. at 223). The second level, the common-law right of inquiry, permits a momentary stop when there is a "founded suspicion that criminal activity is afoot" ( id.). Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has committed, is committing, or is about to commit a felony or misdemeanor ( id.). Finally, an officer may initiate an arrest when there is probable cause to believe that an individual has committed, is committing, or is about to commit a crime ( id.).
Regarding automobile stops, a car that has been approached but not seized, the police must possess an articulable basis for requesting information ( People v Ocasio, 85 NY2d 982): there must be an objective, credible reason not necessarily indicative of criminality ( id.). Initial questioning, limited to a request for identification, is consistent with a request for information ( People v Hollman, 79 NY2d 181, 185, 191). Therefore, an officer's demand for a license constitutes a level-one request for information ( People v Thomas , 19 AD3d 32 [1st Dept 2005]).
In contrast, the First Department has held that an officer's order for a civilian to remove his hands from his pockets is a level-two common-law right of inquiry requiring a suspicion of imminent criminal activity ( People v Boodle, 47 NY2d 398, 401; People v Wilson, 201 AD2d 399 [1st Dept 1994]). In People v Wilson, the arresting officer approached three individuals huddled in the early morning hours of a known drug-prone location and immediately asked Wilson to remove his hands from his pockets. When he complied, a bag containing drugs fell to the ground. Determining that these circumstances did not justify the seizure of the defendant, the First Department concluded:
the officer's direction that defendant halt and take his hands out of his pockets escalated the level of intrusion to that of the common law right of inquiry, requiring a founded suspicion that criminal activity is afoot' [citation omitted], a circumstance, as conceded by the arresting officer, not present in this case ( Wilson at 400).
Here, Officer Gomez performed two actions. First, he asked the defendant if he had a license, a permissible level-one inquiry. To do so, all he needed was an articulable basis for requesting information, which was supplied by the traffic accident. Regarding his directive to the defendant that he take his hands out of his pockets, which escalated the encounter to a level-two inquiry, Officer Gomez testified on direct examination that he asked defendant for his license immediately upon approaching him, and instructed him to remove his hands from his pockets only after the defendant informed him that he did not have one (H: 17-18). During both cross and re-cross examination, however, Officer Gomez conceded the more accurate account was that he first directed the defendant to remove his hands and then asked for the license (H: 32-33, 35).
Strikingly similar to Wilson, there is no indication that Officer Gomez suspected defendant of any criminal activity upon approaching him ( Wilson at 399; see also People v Soto, 194 AD2d 371 [1st Dept 1993]). What Officer Gomez knew when he approached defendant was that there was a minor automobile accident and that defendant may have caused it; a fender-bender, however, by itself, does not on its own suggest criminality, and discretion is required when making such a judgment, as "[b]ehavior . . . susceptible of innocent as well as culpable interpretation [does not] constitute probable cause" ( De Bour at 216).
Without a founded suspicion that criminal activity was afoot, Officer Gomez's command to the defendant to remove his hands from his pockets was unlawful and any evidence recovered as a result must therefore be suppressed. The Court of Appeals has determined that "evidence . . . revealed as a direct result of . . . unlawful police action . . . is tainted and must be suppressed on defendant's motion." ( Boodle at 402; see also Wong Sun v United States, 371 US 471, 484 ["evidence seized during an unlawful search could not constitute proof against the victim of the search"]; People v Cantor, 36 NY2d 106). If the seizure was unwarranted, its fruit must be discarded.
Suppression is not appropriate, however, where a defendant performs a calculated act to abandon property regardless of whether or not it is response to a seizure, illegal or not ( People v Howard, 50 NY2d 583, 592; People v Pittman, 14 NY2d 885; People v Torres, 115 AD2d 93, 95 [1st Dept 1986]). In performing the difficult task of drawing a distinction between calculated and spontaneous acts, the First Department is guided by the principle that a presumption exists against the waiver of constitutional rights [citing Howard]. Indicative of a spontaneous response to unlawful police behavior are instinctual, rather than thought-out, reactions provoked by the coercive pressure of the illegal conduct. This coercion negates the ability to make a thoughtful decision involving the conscious assumption of a risk ( People v Grant, 164 AD2d 170, 174-5 [1st Dept 1990]). Courts, therefore, should conclude that an abandonment has occurred only in the clearest of cases.
Whether or not the bags of marijuana fell to the ground or were tossed from defendant's pocket, it was clearly a direct result of the Officer Gomez's command. Given the same circumstances, the court in People v Wilson concluded that the act was "a spontaneous reaction to improper police action" (at 400, citing Boodle). Because the defendant dropped the bags as a direct and spontaneous result of the officer's illegal seizure, it cannot be concluded that they were voluntarily abandoned and must therefore be suppressed.
Moreover, the "inevitable discovery" exception to the exclusionary rule, established in People v Fitzpatrick ( 32 NY2d 499), is inapplicable. While the exclusionary rule prohibits use in court of evidence procured by officers in violation of the constitutionally-protected rights of the accused ( Wong Sun at 485), the inevitable discovery doctrine permits admission of evidence discovered through unlawful police conduct provided the prosecution establishes by a very high degree of probability that, had the illegal police conduct not occurred, a lawful series of events would have taken place that would have led to the inevitable discovery of the evidence ( Fitzpatrick at 506).
Significantly, the New York Court of Appeals narrowed the inevitable discovery doctrine to exclude primary evidence, applying it only to secondary evidence (the product of primary evidence) only ( see, e.g., People v Stith, 69 NY2d 313, 514 [holding that the officers' discovery of a gun pursuant to an illegally obtained statement was so attenuated from the illegal police action so as not to significantly "taint" the evidence]). The two bags of marijuana that dropped from defendant's pockets constitute primary evidence, as they fell as a direct result of Officer Gomez's impermissible demand that defendant remove his hands from his pockets. Even though the police would inevitably have searched him and discovered the marijuana bags when he was brought to the precinct for driving under a suspended license, its discovery was in fact a primary result of the illegal police conduct and therefore not subject to the inevitable discovery rule. Under this analysis, then, the third bag of marijuana must be also suppressed as "fruit of the poisonous tree" ( Nardone v United States, 308 US 338, 341).
Finally, defendant's statement, "I don't have a license," is admissible, as it was made in response to a lawful, level-one request for information. Even though the statement was elicited either during or after an illegal pat-down, the inevitable discovery rule permits its introduction because the information would have been elicited during the course of a standard police investigation concerning the traffic accident ( Fitzpatrick, 32 NY2d 793).
Conclusion
Accordingly, this court finds that viewed in the light most favorable to the People ( see People v Williams, 84 NY2d 925; see also People v Contes, 60 NY2d 620), Officer Gomez's recovery of all the three bags containing marijuana was a direct result of unlawful police conduct. Defendant's motion to suppress them is therefore granted. Defendant's motion to suppress his statement to the arresting officer, however, is denied.
This constitutes the decision and order of the court.