Opinion
669N-06.
Decided August 17, 2006.
District Attorney, Nassau County, Mineola, New York.
By: Irene Angelakis, Assistant District Attorney, Godfrey Brown, Attorney for Defendant, Brooklyn, New York.
The following constitutes the opinion, decision and order of the court.
An indictment has been filed against the defendant accusing her of the Class E felony of Criminal Possession of Marijuana in the Third Degree. The charge is that on June 16, 2005, defendant possessed more than eight (8) ounces of marijuana.
Defendant, claiming to be aggrieved by an unlawful or improper acquisition of physical evidence, has moved to suppress evidence seized on June 16, 2005, by Officer Charles Johnson, on the ground that it was obtained by means of an unlawful search and seizure within the meaning of CPL 710.20(I).
Defendant, claiming to be aggrieved by an unlawful or improper acquisition of evidence, has moved to suppress statements made by her on June 15, 2005, to Officer Johnson and Detective Barbara Friel, on the ground that they were involuntarily made within the meaning of CPL 60.45.
Tangible evidence is admissible at trial in this State only if it was obtained by means of a lawful search and seizure from an area in which the defendant has a legitimate expectation of privacy. The People have the burden of going forward with evidence to establish a lawful rationale for the police conduct. The defendant, however, has the burden of proving a lack of lawful basis for the police action by a preponderance of the evidence.
A confession or admission is admissible at trial in this State only if its voluntariness is established by the People beyond a reasonable doubt. The defendant has the burden of persuasion that a waiver of the Miranda rights was not knowingly made OR that her right to counsel had attached.
A pretrial suppression hearing was conducted before me on August 15, 2006.
FINDINGS OF FACT
On June 15, 2005, at approximately 12:45 a.m. Police Officer Charles Johnson observed a white Nissan driven by defendant Walters, with two other passengers, make an illegal right turn from Nassau Road onto Uniondale Avenue, in Uniondale, New York. He made a traffic stop, spoke to defendant, gave her a warning, and allowed her to proceed. Johnson and his partner were in streetclothes and an unmarked car on assignment in Uniondale.
Approximately twenty (20) minutes later he saw the same car pull into a dark gas station at Uniondale Avenue and Jerusalem Avenue. He was approximately 150 feet away and observed a black male walk up to the driver's door and hand in a bag and then throw money inside the car. Johnson testified as to his experience and training in narcotics arrests and observations of hand-to-hand drug transactions.
Johnson and his partner approached with lights and siren on to try to stop the black male, who ran, and they pursued, Johnson in the car and his partner on foot. They apprehended the male and Johnson returned to the gas station about two (2) minutes later. The car and the occupants were still there and Johnson saw defendant close the trunk lid and go inside the car.
Johnson parked right behind her car, with lights on again, and approached defendant at the driver's window. He asked her to step out of the vehicle. He did not draw his weapon. She complied, saying, "it was my fault, they're not involved." She also told him the bag was in the trunk and the money was inside the car.
After other officers arrived to remove and secure the passengers, the car was searched and Johnson found a blue bag in the trunk, similar to the one he saw earlier. He opened it and inside was a plastic bag containing what appeared to be marijuana. He also found $1,101 in U.S. currency in the car. At that time he placed defendant under arrest and she was transported to the First Precinct.
At the precinct, Detective Barbara Friel interviewed defendant at approximately 5 a.m. She read defendant her Miranda rights from the rights card, which Friel, defendant, and Officer Flores signed. Defendant also answered "yes" in writing to the two questions on the card and then Friel asked her questions.
A written statement was prepared by Friel and defendant reviewed and made changes to same before she signed it. The interview process took about forty-five (45) minutes and no threats or promises were made and no coercion used. Defendant testified that she was read her rights, understood them, and agreed to talk to the Detective. She testified that her statement was, in sum and substance, what took place. The only two (2) significant differences, which the Court does not credit, is (1) that she testified that Officer Johnson approached her car with his weapon drawn and told her to get out and give him the keys (In any event, Johnson never claimed he sought consent to search the trunk or car); (2) that she made an alleged oral statement to Johnson after the search of the car that he should "leave them (the passengers) alone." She admitted on cross-examination that in her written statement on June 15, 2005, she used the same phrase Johnson attributed to her in his testimony.
Conclusions of Law
Before the police can seize an individual who is inside a parked automobile by ordering the person to remain in (or exit from) the car, there must be a reasonable suspicion that the person is involved in criminal acts or poses some danger to the officers. People v. Harrison, 57 NY2d 470 (1982). Further, absent probable cause, it is illegal for the police to search the interior of a car once the occupants have been removed without incident and there is no immediate threat to the safety of the officers. People v. Torres, 74 NY2d 224 (1989).
An inference of probable cause may be drawn when a trained and experienced officer observes the delivery of glassine envelopes, the hallmark of a drug transaction, in an area notorious for narcotics activity (or some other relevant indicia of drug activity or relevant circumstances). People v. McRay, 51 NY2d 594 (1980). However, the mere plainview sighting of a manila envelope being passed by a pedestrian to a driver does not give rise to probable cause it contains marijuana. People v. Corrado, 22 NY2d 308 (1968); People v. Jeffries, 38 NY2d 722 (1975). People v. Bennett, 170 AD2d 516 (2nd Dept. 1991).
Pursuant to People v. Jones, 90 NY2d 835 (1997), probable cause can be found even if there is no indicia of drug activity if, under the totality of the circumstances, some other indicia of criminal activity exists. This may include the manner of the transfer of the object, the exchange of money for the item, and any furtive conduct by the participants. The manner of the transfer of the blue baggie was not in a manner typical of a drug sale nor was the handling of the money.
The observation by the police officer of the passing of a blue bag and some money by an individual into defendant's car, without anything more, does not constitute probable cause where the contents of the bag are not visible, there is no exchange of anything for the bag, and there is no other furtive behavior. People v. McNatt, 65 NY2d 1046 (1985); People v. Pettiford, 220 AD2d 261 (1st Dept. 1995); People v. Cureaux, 147 AD2d 493 (2nd Dept. 1989); People v. Bennett, supra. At best, the officer had a right to inquire further and no more.
There was no testimony that the location was a drug-prone area or area where narcotics arrests had been made. Further, there was no other hallmark of drug activity such as glassine envelopes. In fact, there was no proof of any indicia of drug activity until the officers put their lights and siren on and pulled behind defendant's car. At that point, the pedestrian ran, but defendant remained at the scene for at least two (2) minutes until Johnson returned. He stated that at no time did he fear for his or the other officers' safety. Any level of suspicion increased by the flight of the pedestrian is negated by the fact defendant remained at the gas station location even though the police left to pursue the pedestrian.
Prior to the decision to seize defendant and the pedestrian, no indicia of criminal activity existed. The flight of the pedestrian does not give rise to probable cause to arrest defendant nor does it elevate the level to reasonable suspicion justifying restraint of defendant, who did not leave her location even after the officers pursued the pedestrian. People v. Bennett, supra at 728. Therefore, there was no lawful basis to search the car and no probable cause to arrest defendant. Based on this, the motion to suppress evidence seized from defendant's car must be granted. People v. Farley, 184 AD2d 726 (2nd Dept. 1992).
Further, the motion to suppress the oral and written statements given by defendant must also be suppressed as the product of the illegal seizure of evidence and of her illegal arrest. People v. Johnson, 66 NY2d 398 (1985). The People have not shown the statements were obtained by means sufficiently distinguishable from the illegal seizure and arrest to be purged of taint. The taint was not attenuated simply by the passage of time until the written statement was taken. People v. Johnson, 66 NY2d at 407.
Accordingly, the defendant's motion to suppress the physical evidence is granted.
Further, defendant's motion to suppress the statement is granted.
The foregoing constitutes the opinion, decision and order of the court.