Opinion
1964/03.
Decided June 21, 2004.
The defendant, indicted for Criminal Possession of a Weapon in the Third Degree and related charges, moves to suppress physical evidence. Upon the evidence adduced at the pretrial Mapp hearing, the motion to suppress is denied.
FINDINGS OF FACT
The People called one witness, Police Officer Colin Lawton, whom the Court finds credible and reliable. The defense called one witness Mubarak Salofu, credible portions of whose testimony are incorporated in the Findings of Fact.
On April 19, 2003, Police Officer Lawton, assigned to the Anti-Crime Unit of the 40th precinct, received information at the beginning of his tour about a suspect wanted in New Jersey, for a shooting that had occurred within the preceding two days. Lawton was provided a physical description and photograph of the individual, known as Omar Marte, and also informed that Marte was known to have contact with a neighboring precinct in Manhattan, which precinct is accessible to Lawton's via a footbridge. Marte was described as a male Hispanic, approximately 5'9", 145 pounds, 22 years of age with long hair.
On the 20th of April, shortly after midnight, Lawton and his partners, Sergeant Hines and Police Officer Perez were stopped at a traffic light, in the vicinity of East 147th Street and Brook Avenue, Bronx County, when Lawton observed a male individual fitting the description of Omar Marte, the aforementioned shooting suspect. This male, later identified to be the defendant, Gerald Santiago, was running northbound across the street, holding what appeared to be a heavy object in the left side of his jacket pocket. The defense witness Salofu testified that he and his friends were with the defendant but had gotten a head start while they were walking towards the bus stop, and that the defendant had to run to catch up to them. This was consistent with Lawton's testimony concerning his observation of the defendant running approximately one block, and then catching up with Salofu and the other male. Both Lawton and Salofu testified that the group of males then continued together, walking northbound on Brook Avenue.
The officers turned on to Brook Avenue and, after stopping their vehicle, the three officers exited with their weapons holstered, identified themselves and approached the males as they were walking along the street, to determine if the defendant was the shooting suspect wanted in New Jersey. Lawton approached the defendant and inquired "how's it going buddy?", to which defendant replied "calm down officer". After hearing this response, Lawton further inquired if defendant had any weapons, to which he offered no reply, but rather attempted to run past the officer, after refusing to make eye contact. Lawton took hold of the defendant by his arm, stopping him and then reached for the outside area of the jacket defendant had been holding while running, feeling a gun in the left side of the jacket. The defendant began to struggle with Lawton, requiring the assistance of Lawton's two partners. Initially the officers were unable to retrieve the gun from the defendant since it appeared that his pocket had flipped over. Once the defendant stopped struggling, Officer Perez recovered a loaded .25 caliber pistol from inside defendant's jacket pocket.
Upon placing the defendant under arrest, the officers requested and were provided identification from the defendant and the others. Lawton testified that the identification provided by the defendant revealed, despite the similarities in appearance, that he was not Omar Marte, the individual wanted in the New Jersey shooting. The defendant was placed under arrest for Criminal Possession of a Weapon in the Third Degree. Salofu and the other male with the defendant were permitted to leave.
CONCLUSIONS OF LAW
The determination of probable cause must be based upon an examination of all of the credible evidence presented. The initial burden is on the People to put forth credible evidence to establish that the defendant's arrest was based upon probable cause. The People must establish the legality of the police conduct which led to the recovery of the property. People v. Whitfield, 178 A.D. 2d 334, 336 (1st Dept. 1991). rev. on other grounds, 81 N.Y. 2d 904 (1993) The People have met their burden. The ultimate burden is then with the defense to show, by a preponderance of the evidence that there was insufficient information to demonstrate probable cause and as such the conduct of the police was illegal, requiring suppression of any physical evidence recovered from the defendant. People v. Berrios, 28 N.Y. 2d 361, (1971). The defense has failed to meet its burden in the instant case.
Police citizen encounters are analyzed on many different levels, each requiring different degrees of information to justify the encounter. These encounters range from a minimal intrusion of a right to request information to probable cause to make an arrest. In order for a police officer to approach a citizen, he must have an objective credible reason for his actions, which is not necessarily indicative of criminality. The officer must be able to give a specific articulable reason for his approach. An analysis must then be made of the knowledge possessed at that moment of approach and any reasonable inferences that may be drawn, based upon that knowledge. People v. De Bour, 40 NY 2d 210, 215 (1976). A greater intrusion is permissible when there is a founded suspicion that criminal activity is afoot. People v. Cantor, 36 NY 2d 106, 111, (1975), People v. Rosemond, 26 NY 2d 101 (1970). Both forcible stops and pursuits require the same degree of information to justify the police conduct. People v. Martinez, 80 NY 2d 444 (1992) The Court of Appeals has held that "the police may forcibly stop or purse an individual if they have information which, although not yielding the probable cause necessary to justify an arrest, provides them with a reasonable suspicion that a crime has been, is being, or is about to be committed." Martinez 80 NY 2d at 447 citing People v. Leung, 68 NY 2d 734, 736 (1986), People v. De Bour, 40 NY 2d at 223, People v. May, 81 NY 2d 725 (1992). Reasonable suspicion has been defined by the Court of Appeals as "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand. To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice." People v. Martinez, 80 NY 2d at 448 citing People v. Cantor, 36 NY 2d at 112-113. "A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed." DeBour 40 NY 2d at 223; See Criminal Procedure Law § 140.50. In order to determine if the police action was justified a court will analyze the surrounding circumstances in which the action takes place. It is the totality of the circumstances surrounding the encounter that will ultimately determine whether or not it was justified.
Our analysis must begin with the initial police encounter between the Officers and the defendant, to determine if the police action was justified in its inception. At such encounter Officer Lawton, while on routine patrol with two other officers, said "how's it going buddy?" to the defendant, whom he believed was wanted in New Jersey for a fatal shooting that had taken place a day or two earlier and was known to have contacts in the area in which he was observed. Prior to this initial encounter, Lawton testified that when he first saw the defendant, he observed that he fit the description of the shooting suspect, giving rise to his belief that the defendant was possibly the individual wanted in New Jersey. It is this belief that prompted his actions. Introduced in evidence at the hearing were the pedigree sheet Lawton received at the beginning of his tour containing the information concerning Marte, and the defendant's arrest photo. After a review of these documents, defense counsel conceded, and the Court concluded, that the defendant and Marte, in fact bear a resemblance to each other. The fact that the defendant fit the description of the wanted individual corroborates Lawton's testimony that there existed an objective credible belief that the defendant might be Omar Marte, thereby justifying his approach. Additionally, the individual wanted in this shooting was known to be armed with a weapon, and known to have contacts in the area. Lawton observed the defendant to be holding the left side of his jacket, which appeared to be heavy, while he was running. When the defendant was walking with the other males, Lawton approached to inquire if the defendant was in fact Omar Marte, asking an innocuous question to which the defendant replied "calm down." Before Lawton could request any identification, the defendant tried to flee. It is the aforementioned factors, considered in combination with each other which justify the forcible stop of the defendant as he attempted to flee and the subsequent frisking of the outside of his jacket. Lawton was able to grab his arm, stop him and ultimately feel a gun from the outside of the defendant's jacket pocket. After a struggle with defendant, Lawton and his partners removed a loaded .25 caliber pistol from defendant's jacket.
An examination of the totality of the circumstances clearly indicate that the police possessed a reasonable suspicion to forcibly stop and detain the defendant. Once the Officer touched the outside of defendant's jacket and felt a gun, this reasonable suspicion was elevated to a level of probable cause. As the police now possessed probable cause to arrest the defendant, the physical evidence retrieved from the defendant's person, i.e. .25 caliber pistol, was recovered pursuant to a search incident to a lawful arrest, and thus is itself lawful. See People v. Lane, 10 NY 2d 347 (1961), People v. Brown, 24 NY 2d 421 (1969)
Accordingly, defendant's motion to suppress physical evidence is DENIED.
The foregoing shall constitute the decision and order of the Court.