Opinion
No. 2011BX045348.
03-06-2015
The PEOPLE of the State of New York, v. Timothy RANSOM, Defendant.
Robert T. Johnson, District Attorney, Bronx County, by Elizabeth Kamens and Adrienne Giunta, Assistant District Attorneys, for The People. The Legal Aid Society, by Larissa Rouse and Lily Goetz, for Defendant.
Robert T. Johnson, District Attorney, Bronx County, by Elizabeth Kamens and Adrienne Giunta, Assistant District Attorneys, for The People.
The Legal Aid Society, by Larissa Rouse and Lily Goetz, for Defendant.
Opinion
ARMANDO MONTANO, J.
Defendant is charged with the misdemeanor of Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01) and the violation of Unlawful Possession of Marijuana (PL § 221.05).
Defendant moves to suppress any and all physical evidence seized from defendant, including observations made by the police, and any and all statements made by defendant.
A combined Mapp/Dunaway/Huntley hearing was held before this Court on March 2, 2015. The People called Police Officer (“P.O.”) Daniel Nunez as their sole witness.
Findings of Fact
P.O. Nunez has been employed by the New York City Police Department for more than nine years and is currently assigned to the anticrime unit at the 47th Precinct. During his tenure as an officer, P.O. Nunez has participated in over 300 arrests. Out of those arrests, 75 arrests related to drugs and approximately 100 arrests related to firearms.
On August 14, 2011 at approximately 1:00 a.m., P.O. Nunez and his partner, P.O. Stockton, were conducting anticrime patrol in an unmarked vehicle within the confines of the 47th Precinct. While on patrol, P.O. Nunez responded at approximately 12:30 a.m. to 1:00 a.m. to a house located on Carpenter Avenue between East 226th Street and East 227th Street in order to assist in breaking up a party with over 100 people in attendance.
Shortly after 1:00 a.m., P.O. Nunez resumed his patrol and was traveling on White Plains Road, one block east of the location of the party. At 1:27 a.m., he heard a call come over the radio for a “10–10”, indicating the presence of males with a firearm at the previous location.
According to the Sprint Report, entered into evidence as defendant's exhibit B, the radio run indicated that there were four black males with a firearm driving a black vehicle bearing New York license plates at 4011 Carpenter Avenue. However, P.O. Nunez denied hearing the portion of the radio run which indicated that the four black males were driving a black vehicle bearing New York license plates. As he approached the intersection of East 226th Street and Carpenter Avenue, P.O. Nunez observed three individuals walking away from the location of the party. Specifically, the three individuals turned the corner of East 226th Street, immediately turned around, proceeded back on Carpenter Avenue, and approached a legally parked white Chevy van bearing Delaware license plate number PC231969 that was parked at the corner of East 226th Street and Carpenter Avenue. There was also an unmarked radio motor patrol vehicle directly ahead of P.O. Nunez's vehicle.
As the three individuals approached the legally parked van, one of the individuals walked to the far side of the vehicle out of sight. Out of concern for the presence of males with a firearm in the area, he and his partner stepped out of their vehicle and approached the vicinity of the legally parked van. P.O. Nunez approached the passenger side of the van while his partner approached the driver's side of the van, parked closest to the curb. By that time, one individual had already entered the van. A second individual, who was about to enter the van, was stopped by P.O. Nunez. The third individual, who, according to P.O. Nunez, had ducked down behind the van, was stopped by his partner, P.O. Stockton.
Upon first approach, P.O. Nunez was able to observe through the open sliding door to the van eight individuals seated inside the van. Of the eight individuals inside the van, he recognized two or three individuals who had been at the party earlier in the evening. P.O. Nunez approached the driver of the van and asked him if he owned the vehicle. The individual seated in the driver's seat answered in the negative. P.O. Nunez then asked this individual to produce a driver's license. This individual stated that he did not have a driver's license.
P.O. Nunez also observed “a lot of movement in the back of the vehicle.” Defendant, who was seated in the rear of the van , ducked down and out of P.O. Nunez' sight. The other individuals in the van were moving their heads down and shifting their weight. P.O. Nunez testified that these movements caused him to fear for his safety and he frisked the individual that he had initially stopped outside the van. P.O. Nunez also told the individuals in the van that they were being stopped and to keep their hands visible based upon his subjective belief that this would prevent them from reaching for anything dangerous, such as a firearm.
The Chevy van has two bucket seats in the front and two benches in the rear. Defendant was seated in the middle of the rear bench, furthest to the back of the van.
P.O. Nunez testified that he felt unsafe and called for additional units to respond. Once additional units arrived, P.O. Nunez ordered each individual out of the van one-by-one to be frisked. P.O. Nunez walked back to the van and observed a silver firearm located underneath the center of the first bench in the van through the open door. P.O. Nunez took a photograph of the firearm, recovered the firearm, and brought it back to the precinct for processing.
At approximately 1:40 a.m., the eight individuals in the van and two individuals standing outside the van were placed under arrest and taken to the precinct, where they were placed in holding cells. At the precinct, a small amount of marijuana was recovered from defendant's front pants pocket and vouchered.
P.O. Nunez is unaware if defendant was given anything to eat or drink while he was in the holding cell from approximately 1:40 a.m. to 2:30 p.m. Instead of taking defendant directly to booking after being processed, P.O. Nunez was instructed to await the arrival of the detective squad later in the morning for questioning.
P.O. Nunez was present in the room when defendant made a written statement at 2:35 p.m. The written statement was completed at 2:50 p .m., approximately 13 hours after his arrest. Detective Regnier advised defendant of his Miranda rights prior to the making of the statement. Defendant was not handcuffed during questioning. Neither P.O. Nunez nor Detective Regnier had any weapons on their person during questioning. P.O. Nunez denies making any promises or threats to defendant prior to or during questioning. He is unaware if anyone else made any promises or threats to defendant. In his statement, defendant stated that he found the firearm in a park. Defendant admitted that he had the firearm but he had no intention of using it to cause harm.
Eight hours later, at approximately 10:30 p.m., defendant made a video statement at the request of an assistant district attorney. P .O. Nunez explained that a long wait in the complaint room caused the delay in time between the making of the written statement and the video statement. P.O. Nunez denied that any promises or threats were made to defendant prior to the making of the second statement. Defendant received his Miranda warnings prior to the making of the video statement. Defendant's video statement was consistent with his prior written statement.
Five of the individuals were released from the precinct after their arrests were voided at approximately 4:00 a.m. The remaining five individuals, including defendant, were charged with possession of a firearm. After defendant made the video statement, the District Attorney's Office declined to prosecute the other four individuals that had remained in police custody after five of the initial 10 arrestees were released.
Conclusions of Law
“It is a basic premise of the law of search and seizure that police-initiated intrusions must be justified at their inception.” People v. Packer, 49 AD3d 184 (1st Dept.2008). In People v. De Bour, 40 N.Y.2d 210 (1976), the Court of Appeals set forth four levels of encounters initiated by the police. Level one, “a request for information”, is permissible “when there is some objective credible reasons for that interference and not necessarily indicative of criminality.” Id. at 223. Level two, “the common-law right of inquiry” is “activated by a founded suspicion that criminal activity is afoot.” Id. Level three encompasses forcible and constructive stops and requires an officer to have “reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or a misdemeanor.” Id. (emphasis added). Level four provides that an arrest is justified when an officer has “probable cause to believe that person has committed a crime, or offense in his presence.” Id. An individual is seized for constitutional purposes when his liberty to move has been significantly interrupted. People v. Cantor, 36 N.Y.2d 106 (1975).
Both the People and defendant concede and this Court agrees that the stop of the three individuals seen walking on the street constitutes a level three stop. “Reasonable suspicion has been aptly defined as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand.” Id. at 112–113. Innocuous behavior, standing alone, does not constitute reasonable suspicion to believe that criminal activity is afoot. De Bour, 40 N.Y.2d at 216. “[W]here the officer entertains nothing more than a hunch or vague suspicion, virtually no interference with the citizen is permissible.” People v. Finlayson, 76 A.D.2d 670, 675 (2d Dept.1980).
A review of the testimony adduced at the hearing and the exhibits entered into evidence reveal the lack of any objective evidence of criminal activity prior to the stop of the three individuals on the street to the arrest of all 10 individuals by the van. The radio run indicating the presence of four black males in the area, akin to an anonymous phone tip, in conjunction with one individual ducking behind a van does not generate reasonable suspicion to believe that criminal activity is at hand in order to justify the seizure of any of the ten individuals.
It has long been held that a “police officer is entitled, and in fact is duty bound, to take action on a radio call.” People v. Benjamin, 51 N.Y.2d 267, 270 (1980). However, “[a]n anonymous tip cannot provide reasonable suspicion to justify a seizure, except where that tip contains predictive information—such as information suggestive of criminal behavior—so that the police can test the reliability of the tip.”People v. Moore, 6 N.Y.23d 496, 499 (2006); see also, Florida v. J.L., 529 U.S. 266 (2000). “While a telephone call from an anonymous source furnishing a general description and location of a man with a gun' will justify a belief that criminal activity is afoot, it does not, by itself, constitute reasonable suspicion to stop and frisk anyone who happens to fit that description.” People v. Bruce, 78 A.D.2d 169 (1st Dept.1980) (internal citations omitted). Instead, a generalized description of a person at a particular location only furnishes the officer with the common law right to inquire. People v. Bond, 116 A.D.2d 28 (1st Dept.1986). “In order to elevate right of inquiry to forcibly stop and detain, the police must obtain additional information or make additional observations of suspicious conduct sufficient to provide reasonable suspicion of criminal behavior.” Moore, 6 N.Y.2d at 499. As such, an officer can detain a person based upon an anonymous tip when the officer is able to confirm the information contained therein by his or her observations.
Vague descriptions or generic descriptions of a suspect which could apply to numerous individuals cannot form the basis of reasonable suspicion. See, Matter of Rubin M., 271 A.D.2d 291 (1st Dept.2000) ; People v. Yiu C. Choy, 173 A.D.2d 883 (2d Dept.2012) ; People v. Dubinsky, 289 A.D.2d 415 (2d Dept.2001) ; People v. Morrow, 97 AD3d 991 (3d Dept.2012). The instant case illustrates why an anonymous tip must be sufficiently detailed. Absent justification, a person has the constitutional right to be left alone. De Bour, 40 N.Y.2d 210.
This Court finds that there was no reasonable suspicion for the initial stop of the individuals approaching the parked van. Although the Sprint report, memorializing the radio run at 1:27 a.m ., indicates the presence of four black males driving a black vehicle bearing New York license plates at a particular location, on cross-examination, P.O. Nunez denied hearing that the four black males with a firearm were driving a vehicle. Therefore, the only description that P.O. Nunez had of the suspects was that they were four black males. The information heard by P.O. Nunez was not sufficiently specific or the description so unique to render it inherently trustworthy or reliable. The description of four black males at a particular location in a predominantly African–American neighborhood is not out of the ordinary. Furthermore, a description of four black males cannot even be considered a general description so as to permit a level two common law right to inquire. Based solely on the description of four black males, P.O. Nunez indiscriminately stopped all ten individuals in the vicinity of the subject location essentially for being black males. Prior to the seizure, P.O. Nunez failed to observe any criminal or suspicious activity. Due to the utter lack of specificity in the radio run as to the suspects, the officer's actions were not “reasonably related in scope to the circumstances which rendered his initiation permissible.” Cantor, 36 N.Y.2d at 111 ; see also, People v. Dinkins, 76 A.D.2d 655 (1st Dept.1980).
This Court takes judicial notice of the fact that 4011 Carpenter Avenue in Bronx County is located in a predominantly African–American neighborhood.
The acts of the three individuals walking down the street away from the direction of the party are innocuous and insufficient to establish the requisite reasonable suspicion. The three individuals could have just as easily been looking for the legally parked van and then turned around when they located it. P.O. Nunez even admitted on direct examination that seeing the three individuals turn a corner and then turn back around meant nothing to him from a criminal standpoint.
The mere act of “ducking” behind the van as testified to by P.O. Nunez does not provide a sufficient nexus to conclude that said individual is in possession of a firearm. There was no evidence of unusual or furtive conduct on the part of the individual who ducked down, such as him grabbing at a large bulge in the waist area, which could have provided reasonable suspicion of criminal activity. See, People v. Correa, 77 AD3d 555 (1st Dept.2010) ; People v. Bond, 116 A.D.2d 28 (1st Dept.1986). Simply stated, none of the individuals were acting in a suspicious or furtive manner which would have indicated to P.O. Nunez that they were either in possession of a firearm or engaged in criminal activity.
Even when crediting P.O. Nunez' testimony regarding his observation of an individual ducking down, such conduct might have, at most, permitted a level one inquiry. However, the officer immediately acted in accordance with a level three intrusion by seizing two of the three individuals as they approached the van. Notably, no firearm was recovered either from the individual who allegedly ducked down behind the van or from the area on the ground where he ducked down. Moreover, the individual who ducked down behind the van never even entered the parked van. The mere fact that two of the three individuals were seized as they approached the vicinity of a legally parked van without legal justification precludes the officer from then seizing the individuals seated inside the van. Assuming arguendo that this initial stop was lawful, after a frisk of these two individuals, including the individual who ducked down, revealed nothing, any further inquiry and intrusion should have ceased.
Since the initial stop of the two individuals approaching the legally parked van was unlawful, then the resultant seizure of the individuals, including defendant, seated in the van was equally unlawful. Although P.O. Nunez testified that he was in fear for his safety, the attendant circumstances and his observations did not permit the more intrusive conduct of ordering the individuals seated in a legally parked vehicle to put their hands up, telling them that they were being stopped, and then instructing them to exit the vehicle one-by-one to be frisked. P.O. Nunez' belief that there might be a firearm inside the van was unfounded and based purely on speculation.
It is critical to note that P.O. Nunez was only able to see the firearm underneath the first bench after he unlawfully seized and ordered the occupants out of the vehicle. The firearm was not in plain view . “The [plain view] doctrine rests on the premise that police should be able to seize incriminating evidence in plain view if they had the right to be where they were when they saw it.” People v. Brown, 96 N.Y.2d 80, 88 (2001). As P.O. Nunez was not in a lawful position to view the firearm, the People cannot rely upon the plain view doctrine. The eventual discovery of contraband does not justify an unlawful seizure in the first instance. Based on the foregoing, all evidence recovered as a result of the unlawful seizure must be suppressed.
“[L]aw enforcement officers may properly seize an item in plain view without a warrant if (i) they are lawfully in a position to observe the item; (ii) they have lawful access to the item itself when they seize it; and (iii) the incriminating character of the item is immediately apparent.” Brown, 96 N.Y.2d at 89.
--------
With respect to the legality of police actions, “the People must carry the burden, in the first instance, of going forward with credible evidence establishing the legality of the police conduct in question.” Matter of Carl W., 174 A.D.2d 678, 680 (2d Dept.1991). This Court finds that the People have failed to meet their burden. Therefore, defendant's motion to suppress is granted in its entirety.
As defendant's statements must be suppressed as the tainted fruits of an unlawful seizure, this Court need not address the voluntariness of his statements.
Accordingly, defendant's motion to suppress is granted in its entirety. The firearm, the police observations of defendant, the marijuana, and defendant's written and video statements are hereby suppressed. A notice of appeal, if applicable, shall be filed no later than thirty (30) days from the date of this decision and order.
This constitutes the decision and order of this Court.