Opinion
3353/06.
Decided January 30, 2008.
Defendants are charged in the indictment with one count of Bribery in the Second Degree (PL § 200.03), one count of Bribery in the Third Degree (PL § 200.00), and one count of Obstructing Governmental Administration in the Second Degree (PL § 195.05). Defendant Rodriguez is additionally charged with one count of Criminal Possession of a Controlled Substance in the Fourth Degree [PL § 220.09 (1)].
Defendant Rodriguez has moved to suppress the narcotics recovered by the police, on the ground that such property was illegally seized. Defendant Taylor has moved to suppress a bag containing a quantity of United States Currency as well as certain statements made by her to the police.
A combined pre-trial Mapp/Huntley suppression hearing (granted by a court of coordinate jurisdiction) was conducted before this court on November 5, 2007 at which two witnesses, Police Officers Nestor Beaume and Hector Jimenez testified. Defendants presented no witnesses. Following completion of the hearing, the court requested that the parties submit memoranda of law regarding the legality of the stop, the subsequent seizures and the statement. Defendant Rodriguez and the People submitted memoranda of law but defendant Taylor did not. For the reasons set forth below, defendant Rodriguez's motion is granted and defendant Taylor's motion is denied.
FINDINGS OF FACT
The court credits the testimony of the two police witnesses to the extent hereafter indicated. On May 25, 2006, at approximately 8:30 PM, New York City Police Officer Nestor Beaume and his partner, Hector Jimenez, in uniform and assigned to a radio patrol car in the 43rd Precinct, responded to the location of Haviland and Castle Hill Avenues in Bronx County, in response to a radio run of a man waving a gun at the location. The radio run was predicated upon an anonymous call to a 911 operator. The man was described as a light-skinned male Hispanic, medium build, wearing a t-shirt and blue jeans. Traveling northbound from their location on Story and Fteley Avenues, it took approximately two minutes for them to arrive at the corner of Haviland and Castle Hill Avenues. From approximately two to three car lengths away, the officers observed defendant Rodriguez and another male, later identified as a Mr. Montanez, standing at the corner. They were the only two people standing at the location. No one was observed waving a gun. Officer Beaume testified that he was the driver of the vehicle and that both individuals fit the description from the radio run. He also testified that defendant Rodriguez "kind of fit the description." Officer Jimenez testified that he, not Officer Baume, was the driver of the vehicle and that Mr. Montanez did not fit the description in the radio report.
As soon as the patrol car was in front of the two individuals, Officer Beaume made eye contact with defendant Rodriguez and both individuals began walking westbound, crossing Castle Hill Avenue. They walked around the radio patrol car and, as they crossed the street, Officer Beaume testified that he asked them to stop. He proceeded to make a u-turn and again directed both individuals to stop. As defendant Rodriguez was walking away from the vehicle, Officer Beaume observed a bulge on his waist line. No facts were elicited as to the configuration of the bulge. Officer Beaume and his partner exited the vehicle and again asked the individuals to stop; they kept on walking, so Beaume walked a bit faster, went in front of them and stopped them. Officer Beaume approached defendant Rodriguez and Officer Jimenez approached Mr. Montanez. After he stopped defendant Rodriguez, Officer Beaume asked him, "Sir, where are you going?" He does not recall what, if anything defendant Rodriguez said to him in response but he told him to go up against the car and started patting him down. He touched the bulge on defendant Rodriguez's waist and, as soon as he touched it, realized that it was a cell phone, which was in a holder and was attached to defendant Rodriguez's belt.
As Officer Beaume was patting defendant Rodriguez down, defendant was moving a lot. He told defendant Rodriguez to stand still; however, defendant kept moving. Although he did not notice any other bulges on defendant Rodriguez's person, he continued to pat him down and, when he got to the area around his socks, he felt an uneven bulge in that area. He touched it and, as he candidly admitted, knew it was not a weapon. Defendant Rodriguez then pushed him to the ground, reached into his sock area and threw a package to the ground, which Officer Beaume believed to be crack/cocaine. Officer Beaume jumped up and grabbed defendant Rodriguez's leg, handcuffed him and placed him under arrest.
At no time did the police have their guns drawn while approaching or speaking with defendant Rodriguez or Mr. Montanez. Officer Beaume does not recall if he saw a bulge on Mr. Montanez because he was concentrating on defendant Rodriguez. He testified that he did not remember if Mr. Montanez was patted down but later he testified that indeed Mr. Montanez was patted down. Officer Jimenez testified that even though Mr. Montanez did not fit the description in the radio run, he patted him down because Mr. Montanez had on clothing that could conceal a weapon.
After defendant Rodriguez was placed under arrest, he was taken to the station house located at 900 Fteley Avenue and placed in a holding cell. Thereafter, defendant Rodriguez asked to speak to Officer Jimenez, who took him out of the holding cell and walked him to the restrooms. At that time, defendant Rodriguez told Officer Jimenez that he was businessman and that he had a number for him. Officer Jimenez assumed that to mean that defendant Rodriguez was going to provide him with information regarding a drug location or a number to a drug location such as a telephone number. Defendant Rodriguez then stated "ten" and Officer Jimenez proceed to ask him, "$10,000?" to which defendant Rodriguez replied, "Yes." Officer Jimenez told defendant Rodriguez that he would discuss it with his partner and get back to him in a few minutes. As he proceeded to walk defendant Rodriguez back to the cell, defendant Rodriguez whispered that he would make it "15."
After placing defendant Rodriguez back in his cell, Officer Jimenez contacted his supervisor, Lieutenant Guimeras, and advised him of the conversation he had with defendant Rodriguez. Subsequently, a recording device was placed on Jimenez's person and he had another conversation with defendant Rodriguez, during which defendant Rodriguez requested to make a telephone call to defendant Taylor, which request was granted. In that conversation, he told her to get a black bag that was "upstairs," not ask any questions but to do so in an expeditious manner, and then get to the station house as soon as possible and see Officer Jimenez. Officer Jimenez then spoke to the person on the telephone whom he believed to be defendant Taylor and provided her with directions to the 43rd Precinct. Approximately thirty minutes later, defendant Taylor arrived and identified herself as the person on the telephone. Officer Jimenez had a conversation with defendant Taylor regarding the black bag and she told him that she was not sure that she was supposed to give him all of the contents in the bag. At the completion of that conversation, it was agreed that Officer Jimenez would try to get defendant Rodriguez out of the precinct on a summons or a desk appearance ticket. Officer Jimenez left defendant Taylor and returned with Lieutenant Guimeras, who took the bag from defendant Taylor and gave it to Officer Jimenez who vouchered the bag containing approximately $12,000. Defendant Taylor was subsequently placed under arrest and was administered Miranda warnings, as to which defendant Taylor answered all questions in the affirmative and made an oral statement at the precinct. She later made an additional statement to an Assistant District Attorney, which was recorded on video, following Miranda warnings and her agreement to answer questions.
CONCLUSIONS OF LAW
The People concede that an anonymous tip of a man with a gun, even with a description, is insufficient to provide reasonable suspicion for a stop. Florida v JL, 529 US 266 (2000); People v Moore, 6 NY3d 496 (2006). However, they argue that the radio run, coupled with the additional observations of the officers, was sufficient to provide reasonable suspicion of criminal behavior so as to justify the pat down frisk of defendant Rodriguez. The People contend that because defendant Rodriguez was present at the location of an alleged crime, walked away from the officers when asked to stop, gave no answer to questioning and had a bulge in his waist band, that these observations are the "natural mental connections" that provided reasonable suspicion required by the third tier of the DeBour analysis. People v DeBour, 40 NY2d 210 (1976). The People cite People v Rivera, 301 AD2d 463 (1st Dept 2003) in support of their position.
The People's reliance on Rivera is misplaced. In Rivera, defendant and his codefendant met a radio description of two burglary suspects and were observed by the police as they emerged from the building where the burglary had just occurred. The description was sufficiently specific to warrant the conclusion that the two men were the suspects, given the spatial and temporal factors. The suspects fled upon being directed to stop; when the police caught up with them, they were not immediately frisked, but were asked questions that produced patently false and evasive answers from both of them. Significantly, defendant in Rivera was not frisked until after the police had recovered a knife from the codefendant and had noticed a suspicious bulge in defendant's pocket.
While the burden of demonstrating the illegality of a search and seizure is on defendant, the People have the burden of demonstrating the legality of the police conduct in the first instance. People v Berrios, 28 NY2d 361 (1971). A police officer may stop a person in a public place when he reasonably suspects that such person is committing, has committed or is about to commit a felony or misdemeanor. CPL § 140.50(1); Terry v Ohio, 392 US 1 (1968); People v Debour, 40 NY2d 210 (1976); People v Cantor, 36 NY2d 106 (1975). A limited, protective search for weapons may be conducted if the officer reasonably suspects he or she is in danger of physical injury. CPL § 140.50 (3).
Based upon the testimony adduced at the hearing, this court finds that the People have failed to satisfy their burden and accordingly defendant Rodriguez's motion to suppress the narcotics must be granted. In making this determination, the court credits Officer Beaume's testimony that he observed a bulge on defendant Rodriguez's waist line. While the Court in DeBour characterized a waist band bulge as the "tell tale sign of a weapon" [see also People v Benjamin, 51 NY2d 267 (1980)], subsequent appellate decisions have held that the observation of a waist band bulge, alone, is insufficient to establish reasonable suspicion to justify a stop and frisk. People v Calizaire, 208 AD2d 378 (1st Dept 1994); People v Barretto, 161 AD2d 305 (1st Dept 1990); People v Marine, 142 AD2d 368 (1st Dept 1989); People v Ventura, 139 AD2d 196
(1st Dept 1988); People v Wiley, 110 AD2d 590 (1st Dept 1985); People v Williams, 79 AD2d 147 (1st Dept 1981).
The dispositive issue here is whether the information possessed by Officer Beaume justified the "Tier Three" encounter. Officer Beaume testified that after he observed defendant Rodriguez with a bulge on his waist line, he and his partner exited their vehicle and he asked defendant to stop; however, defendant kept on walking, so he walked a bit faster, went in front of them and stopped them. The information known to Officer Beaume and his partner was that of an uncorroborated anonymous tip of a male Hispanic, light skinned, waving a gun at the location. This court is of the opinion that the observations of Officer Beaume, taken together, justified a common law right of inquiry based upon a founded suspicion of criminal activity and justified the officer's approach for the purpose of making that inquiry. People v Jenkins, 209 AD2d 164 (1st Dept 1994). However, no such inquiry occurred. Rather, Officer Beaume testified that defendant Rodriguez was put up against the car and frisked. There was no testimony that defendant Rodriguez engaged in any conduct which would pose a risk to the safety of the officers. Significantly, Officer Jimenez testified that he patted down Mr. Montanez because he was wearing a jacket, even though he did not fit the description in the radio run.
Contrary to the People's contention, defendant Rodriguez's decision to walk away without responding to the officer's questions, when considered with the prior circumstances, is not an additional factor that raises the level to reasonable suspicion. When a police officer makes an inquiry of an individual, that individual has a constitutional right not to respond and to be left alone, or to walk or run away, and the refusal to answer is not a crime. People v Stevenson, 7 AD3d 820 (2nd Dept 2004); People v Holmes, 81 NY2d 1056 (1993); People v May, 81 NY2d 725 (1992). In addition, there was no belief expressed on the part of the police that defendant was armed. This court acknowledges the safety concerns surrounding the possibility that a defendant might be armed and a police officer need not await the "glint of steel" before acting to preserve his safety [ People v Benjamin, NY2d 267, 271 (1980)]; here, however, other than "physical and verbal evasiveness," there was no testimony showing that defendant Rodriguez engaged in any conduct which would pose a risk to the safety of the officers. There was no evidence that there was an outline of a weapon or that any part of a weapon was visible. Nor was there any objective indication that the officer feared for his safety, a prerequisite to the officer frisking the suspect. CPL § 140.50 (3).
Even assuming the combination of factors as pointed out by the People constituted the "natural mental connections" from which the officer reasonably inferred that defendant was armed so as to justify a "pat down," there is no evidence to support a claim that the results of the pat down justified an increase in the level of intrusion in the patting down of defendant's sock area. Officer Beaume testified that after patting down the waist band bulge area, he recovered a cell phone. Beaume did not claim he believed the object he felt to be a weapon, nor did he advance the notion that by patting down defendant's sock area, he acted to protect his safety.
See Sibron v New York, 392 US 40 (1968). After recovering the cell phone, he testified that there were no other visible bulges on defendant Rodriguez's person, yet he continued to pat down defendant Rodriguez's person until he reached the sock area because defendant Rodriguez was moving around a lot. He candidly admitted that what he felt in the sock area did not feel like a weapon.
The right to stop and frisk an individual is limited. Pursuant to the stop and frisk doctrine set forth in Terry v Ohio, 392 US1 (1968)and codified in CPL § 140.50 (3), an officer may conduct a limited pat down search for a weapon if he reasonably suspects that he is in danger of physical injury. However, after any reasonable basis for the officer's fear for his safety has abated, he is not justified in continuing the search for contraband or evidence. People v Roth, 66 NY2d 688 (1985).
Here, even if the court were to conclude that Officer Beaume was entitled to frisk defendant Rodriguez's waist area to ensure himself that defendant was not carrying a weapon, he was not entitled to discover everything that defendant was carrying on his person. A protective frisk is an intrusion tailored to discover the presence of concealed weapons [see People v Robinson, 125 AD2d 259 (1st Dept 1986)] and should not be extended beyond its purpose of securing the safety of the officer and preventing an escape. People v Marsh, 20 NY2d 98 (1967); see also People v Torres, 74 NY2d 224 (1989). Once that limited intrusion fails to reveal a weapon and the basis for the officer's fear for his safety has therefore abated, the search must stop. People v Roth, supra; People v Robinson, supra; see also People v Smith, 216 AD2d 233 (1st Dept 1995) (search after protective pat down illegal, once officer concluded no weapon present); People v Clarke, 213 AD2d 946 (3rd Dept 1995) (where object did not resemble or feel like a weapon, no further search warranted, even though defendant refused to identify the object in his possession); People v Williams, 217 AD2d 1007 (4th Dept 1995) (hard object felt during pat down did not warrant further search absent reasonable belief that the object posed threat to officer's safety and officer did not testify that he believed the object to be weapon); Matter of Bernard G., 247 AD2d 91 (1st Dept 1998) (once officer believed, after protective pat down, that there was no weapon present, search could not continue to satisfy other suspicions). Officer Beaume's pat down frisk should have ended once he discovered the cell phone. His further investigation was plainly unreasonable since there was no reasonable basis to fear for his safety. People v Roth, supra.
Having concluded the police action in the instant case was illegal, the issue is whether the narcotics defendant Rodriguez discarded is admissible. Any intent to abandon property must be voluntary. Here, this courts finds that defendant Rodriguez abandoned the property in response to coercive police conduct. People v Howard, 50 NY2d 583 (1980); People v Torres, 115 AD2d 93 (1st Dept 1986). Accordingly, the abandonment was not intentional and voluntary. Defendant Rodriguez's motion to suppress the narcotics is therefore granted.
At the suppression hearing, Officer Jimenez testified that after a telephone conversation with defendant Rodriguez, defendant Taylor arrived at the police station with a bag containing a quantity of United States currency; she was heard on a tape stating in sum and substance "this shit is dirty." Defendant Taylor attempted to negotiate a deal with Officer Jimenez, the bargain being that defendant Rodriguez would get a desk appearance ticket in exchange for her turning the bag and its contents over to Officer Jimenez. Inasmuch as the foregoing established that probable cause existed for defendant Taylor's arrest, her motion to suppress the bag containing a sum of United States currency is denied.
As to the Huntley portion of the hearing, the People have the burden of proving the voluntariness of a statement beyond a reasonable doubt. People v Anderson, 69 NY2d 651 (1986); People v Witherspoon, 66 NY2d 973 (1985); People v Huntley, 15 NY2d 72 (1965). The burden then shifts to defendant to show that the waiver of rights was not intelligent or knowing. In determining whether defendant Taylor made a knowing and intelligent waiver of her Miranda rights, it is necessary to review the totality of the circumstances surrounding the waiver to determine if the People have met their burden in proving this issue beyond a reasonable doubt. People v Woods, 89 AD2d 122 (2nd Dept 1982).
Where a defendant indicates understanding of Miranda rights and "promptly after having been administered those rights willingly proceeds to make a statement or answer questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights." People v Sirno, 76 NY2d 967 (1990). Here, the People produced evidence, in the form of a videotape: (1) showing that the warnings were read to defendant Taylor; (2) that she affirmatively responded she understood each and every Miranda right read to her; (3) that she wished to waive those rights; and (4) that she voluntarily made the statements. The court finds that the People have met their burden in proving beyond a reasonable doubt that defendant Taylor freely, intelligently and voluntarily waived her rights and agreed to make the statements. As to Defendant Taylor's other oral statements, the court finds that the People have met their burden in proving the voluntariness of those statements beyond a reasonable doubt. Accordingly, defendant Taylor's motion to suppress her statements is denied.
This constitutes the decision and order of the court.