Opinion
CR-7670-18
05-15-2019
The PEOPLE of the State of New York, Plaintiff, v. Arbin HOWLETT, Defendant.
For the People: Westchester County District Attorney, Mount Vernon branch For Defendant: Karl Scully, Esq., 33 Del Rey Drive, Mount Vernon, New York 10552
For the People: Westchester County District Attorney, Mount Vernon branch
For Defendant: Karl Scully, Esq., 33 Del Rey Drive, Mount Vernon, New York 10552
Nichelle A. Johnson, J.
Defendant is charged by superseding misdemeanor information with Criminal Possession of Marihuana in the Fourth Degree [P.L. 221.15] and Criminal Possession of Marihuana Fifth Degree (P.L. 221.10 [1] ).
A Mapp/Dunaway/Huntley hearing was held on April 23, 2019 and continued on April 25, 2019.
FINDINGS OF FACT:
The People called one witness at the hearing namely Mount Vernon Police Officer Avion Lee. At the hearing, Mount Vernon Police Officer Avion Lee testified that she has been a member of the police force for six years and has been assigned to the Narcotics Unit for one and a half years. She has received HIDTA (High Intensity Drug Traffic Area) training. HIDTA is training for the detection of drugs, including marijuana. Officer Lee testified that over the course of her career she has made over one hundred marijuana arrests. On May 17, 2018, she was working with her partner Officer Joseph Valente and patrolling South Fifth Avenue in Mount Vernon in an undercover police car, a yellow cab. At approximately 5:37pm she was driving southbound in the vicinity of 657 South Fifth Avenue, Mount Vernon, New York when she observed the defendant's vehicle parked on South Fifth Avenue facing northbound. She testified that "maybe" one week prior, the Mount Vernon Police Department received an anonymous complaint that a black male was selling narcotics from his car in front of the Garden Bar on South 5th Avenue in Mount Vernon. She testified that her supervisor assigned her to investigate the tip "maybe" one week before she arrested the defendant. Officer Lee stated she, personally, was not the officer or person who received the anonymous tip that she received information about it from her Supervisor. Officer Lee testified that the print out of information for the anonymous tip provided the vehicle information, that being a black vehicle bearing license plate No.HHJ8881, a description of the seller and his street name. According to the tip, the seller would hang out in front of the Garden Bar and go to his car to retrieve the drugs. Officer Lee testified that after receiving the information, she did purposely drive by the location a few times while on duty, as well as the rest of the city. On those prior occasions she never saw defendant or his vehicle in the area.
Officer Lee testified that on May 17, 2018 at 5:37pm she observed the defendant's vehicle bearing license plate #HHJ8881 as she and her partner were traveling southbound on Fifth Avenue. Officer Lee testified that they made a U-turn and pulled up next to defendant's vehicle. The defendant appeared to meet the description of the person from the anonymous tip and was in the driver's seat of a car bearing the license plate New York #HHJ8881 in close proximity to the Garden Bar. Officer Lee testified that defendant was parked two or three houses down from the Garden Bar. After observing the defendant's vehicle, the officers pulled over next to defendant's vehicle and exited their vehicle. Officer Lee testified that the officers then approached the defendant's vehicle. She stated that the windows were down and as they approached she smelled what appeared to be marijuana emanating from the vehicle but did not observe anyone smoking. She further testified that she smelled marijuana emanating from the defendant's person. Officer Lee testified that marijuana has a distinct odor and that in her opinion the smell of burning marijuana is the same as unburnt marijuana. She also testified that she can smell marijuana through a ziplock bag. Officer Lee testified that she asked the defendant for his identification. She testified that when defendant reached into his right pants pocket for his identification, she observed a ziplock bag of marijuana in his pocket. Defendant then was asked to exit the vehicle and placed under arrest. After defendant was placed under arrest, Officer Lee recovered seven more bags of marijuana from his left pants pocket. They asked the defendant if he had any more marijuana in the vehicle, to which he said yes there is more marijuana in the car. They recovered a backpack that contained seven large ziplock bags and nineteen smaller ziplock bags of marijuana. Officer Lee testified that they also recovered twenty additional ziplock bags inside of a satchel and a jar of loose marijuana and a digital scale from the center console of the vehicle. Defendant was transported to headquarters.
During Officer Lee's cross examination, the defense introduced a video of the approach to defendant's vehicle by the officers. The Court has reviewed the video. Although defense counsel emphatically stated during the trial that the video clearly demonstrates that the windows were up as the officers approached, that was not the case in that the Court was unable to tell from the angle and location of the surveillance camera and position of the defendant's car if the windows were up or down during the initial police encounter. As the People stated during the trial, the camera appears to be at the end of the street and was too far to capture if the defendant's tinted windows were up or down. However, a close view of the video does demonstrate that the officers pulled up alongside defendant's vehicle, essentially blocking him from moving the vehicle front or back, and activated police "like" lights on the undercover yellow cab. The video also demonstrates that when the officers exited their vehicle, which now also had lights activated, defendant opened the front driver's side door but did not immediately exit. It was clear that Officer Avion was standing very close to the defendant—as his car door was open—which restricted his ability to get out of the car.
CONCLUSIONS OF LAW
In evaluating the constitutionality of police-initiated encounters with motorists the court must decide whether the approach of the vehicle was justified from its inception and at every subsequent stage of the encounter ( People v. De Bour , 40 NY2d 210, 222 [1976] ). Under the graduated four-level test announced by the Court of Appeals in De Bour , "level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime" ( People v. Moore , 6 NY3d 496, 498-499 [2006] (citing People v. De Bour , 40 NY2d at 223 and People v. Hollman, 79 NY2d 181, 184-185, [1992] ).
The Court of Appeals has made clear that "the right to stop a moving vehicle is distinct from the right to approach the occupants of a parked vehicle" ( People v. Spencer , 84 NY2d 749, 753, [1995], cert denied 516 US 905, [1995] (citing People v. Harrison , 57 NY2d 470 ). The approach of occupants of a stopped, parked vehicle to request information is analyzed under the first tier of the DeBour inquiry. When law enforcement approaches an occupied parked motor vehicle to speak with its occupants, they need an objective credible reason for doing so, not necessarily indicative of criminality (see People v. Ocasio , 85 NY2d 982, 985 [1995] ; People v. Harrison , 57 NY2d 470 [1982] ). A level one request for information may include " ‘basic, nonthreatening questions regarding, for instance, identity, address or destination’ " ( People v. Garcia , 20 NY3d 317, 322 [2012], quoting People v. Hollman , 79 NY2d at 185 ). All that is required is that the intrusion be predicated on more than a hunch, whim or idle curiosity ( People v. Ocasio , 85 NY2d at 985 ). The police may restrain the occupants of a parked vehicle based on "some articulable facts, which initially or during the course of the encounter, established reasonable suspicion that the person is involved in criminal acts or poses some danger to the officers" ( People v. Harrison , 57 NY2d at 476 ).
Here the arresting officer testified that when she initially encountered the defendant on May 17, 2018 she did not observe him engaging in any illegal activity or committing a traffic infraction. Officer Lee acknowledged that the defendant was legally parked on the street at the time she first observed his vehicle. She testified, however, that the defendant's vehicle and license plate matched the information provided by an anonymous complaint "maybe" a week prior. The officer testified that she did not receive the tip herself, but that her supervisor had assigned her to investigate it "maybe" one week prior to defendant's arrest. As stated above, the video of the approach to defendant's vehicle demonstrates that the officers pulled alongside of defendant's vehicle and activated the lights on the undercover police car as they were exiting the vehicle. Defendant could not move his vehicle and was stopped from exiting the car. Under these circumstances, the Court finds that the police escalated the encounter with defendant ( People v. Harrison , 57 NY2d at 476 ). Defendant was constructively stopped and seized before the officers made their approach to request general information ( People v. May , 81 NY2d 725 [1992]. Absent reasonable suspicion of criminal activity, the officers could not forcibly detain or constructively stop him from driving his vehicle or exiting his vehicle ( People v. Harrison , 57 NY2d 470 ; People v. May , 81 NY2d 725 ). The Court finds that defendant was effectively seized before Officer Lee had an opportunity to approach the car and request general information and smell what appeared to be marijuana emanating from the defendant and his vehicle.
Even if this Court were to find that the officers did not constructively stop and seize the defendant when they pulled up alongside of his vehicle and activated the police lights, the testimony and evidence failed to establish that the officers had an objective credible reason to approach defendant's legally parked vehicle. An anonymous tip has been held reliable to provide the basis for an officer to approach a parked vehicle to inquire ( People v. Russ , 61 NY2d 693 [1984] ; People v. Monforte , 584 NYS2d 98 [2d Dept. 1992] ; see also People v. Boler , 106 AD3d 1119 [3d Dept 2013] ).
In People v. Russ an officer received a radio call in which an anonymous 911 caller stated that he had seen a woman in a blue car with a white top parked in front of 124 West 112th Street pass a handgun to a man seated in the car with her. The Court of Appeals held that finding defendant in a car meeting the description and specific location indicated by the anonymous 911 caller provided reasonable suspicion that a crime had occurred or was about to occur and warranted the officer's request that she step out of the car for inquiry but not to frisk her (citations omitted). The court further stated that "[b]earing in mind the weakness of information received from an anonymous source (citations omitted), we conclude that the fact that the car was of the described colors and in the specified location authorized the officer to address investigative inquiries to its woman occupant but not to frisk her." In People v. Monforte , officers received a radio call based upon information provided by an undisclosed civilian that two white males were sitting in a brown vehicle at a specified location using drugs. The officers responded to the location and observed the vehicle parked with two wheels on the sidewalk containing two white males at the specified location. The officers approached the car with the intention of issuing a summons for illegal parking. The Second Department upheld the lower court's finding that denied defendant's motion to suppress the physical evidence recovered. The court held that "[t]he specificity and congruity between the information provided by the anonymous tip and the circumstances actually encountered authorized the police to approach the parked vehicle to inquire (citations omitted)."
This case is distinguishable from both Russ and Monforte . Here, Officer Lee did not observe the defendant commit any traffic infraction. The officer did not observe the defendant engage in the behavior allegedly observed by the tipster, that being standing in front of the Garden Bar then going to his car to retrieve the drugs for sale. Furthermore, she was not responding to a contemporaneous radio call of a 911 but acting on an anonymous tip she had received "maybe" one week prior to observing the defendant's vehicle. Moreover, the Court finds that the People failed to demonstrate that the anonymous tip was sufficiently reliable or from a credible source. "Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her [or his] allegations turned out to be fabricated, an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity’ " ( Florida v. J.L. , 529 US 266, 270 [citation omitted], quoting Alabama v. White , 496 US 325, 329 ).
Officer Lee did not have firsthand knowledge of the source of the tip and did not specify during her testimony what date and time the tip was received and whether the source of the tip was from an anonymous 911 call, or a telephone call, or a face-to-face encounter with an undisclosed civilian. In this Court's opinion, this lack of specificity about the source of the tip taints the credibility and reliability of the anonymous tip (see Navarette v. California , 572 US 393 [2014] ; Florida v. J.L. , 529 US 266 [2000] ).
In Navarette v. California , the United States Supreme Court held that police are justified in relying on an anonymous 911 call in encounters with motorists where the call is (i) made by an eyewitness, (ii) nearly contemporaneous with the event, and (iii) recorded and traced by the 911 system ( 572 US 393, 398-401 [2014] ). In Navarette v. California , a person called 911 to report that a truck driver was driving dangerously and had just run the person off the road. The person gave the make, model, color and license plate number to California highway patrol. A police officer saw the truck being driven by Defendant Navarette on the highway and followed it for five minutes before pulling it over. The officer did not observe any reckless driving at the time he was following the truck. Upon approaching the truck, the officer smelled marijuana. The officer searched the truck and found thirty pounds of marijuana. Defendant challenged the constitutionality of the traffic stop and incident search. In upholding the constitutionality of the stop and search, the Supreme Court found that an anonymous 911 call has an inherent indicium of reliability because the caller uses the 911 system, which generally has "some features that allow for identifying and tracing callers" such that "a false tipster would think twice before using the system [2014]. Although this case herein does did not involve an investigatory traffic stop, this court finds the Supreme Court's findings regarding the reliability of an anonymous 911 call made through the 911 call center persuasive and telling. Additionally, the fact that the Supreme Court included in their analysis of reliability of the contemporaneousness of the tip, was also persuasive to this court's analysis of the reliability or lack thereof of the tip in the matter at bar. Significantly, the court finds that the tip was not reliable unreliable and was uncorroborated.
Based on the foregoing, the Court finds that the officer's conduct was not justified from its inception. Officer Lee's vague testimony about receiving information about an anonymous tip "maybe" one week prior from her supervisor was insufficient to provide the police with the requisite objective credible reason, not necessarily indicative of criminality" to justify a level one encounter. Here the police failed to simply exercise their objective credible reason to approach. Instead, in pulling besides defendant's vehicle, blocking him in both by their vehicle and officer Avion standing right in his doorway as he opened the door, and activating their police lights as soon as they exited their vehicle, the officers effectively stopped and seized defendant, at which time they lacked reasonable suspicion for a level three encounter (see People v. Phillips , 225 AD2d 1043 (4th Dept. 1996) ]. Again, here, this court finds the anonymous tip was not 1) reliable due to the fact that a) there was no indication how the tip was made—was it by a call, a 911 call, in person by someone who observed the alleged actions b) it was not made contemporaneous to the actual approach in that the tip allegedly came in "maybe" one week prior to the actual arrest of the Defendant nor 2) corroborated by the officer in that beyond the fact that the defendant was sitting in a car with the license plate provided by the anonymous tipster, the officer testified to no further confirmatory observations of the defendant that drew her attention. Thus, the tip information was not reliable and not corroborated. Accordingly, the officer's lacked the requisite probable cause to make an arrest and seize evidence. The physical evidence and statements obtained by the People as a result of this vehicle encounter, is the fruit of the poisonous tree and must be suppressed.
This constitutes the Decision and Order of this Court.