Opinion
No. 2010 NA 01489.
2010-08-30
The PEOPLE of the State of New York, Plaintiff v. David O. MEDDA, Defendant.
Kathleen M. Rice, District Attorney for Nassau County. Daniel Belano, Esq., Attorney for Defendant.
Kathleen M. Rice, District Attorney for Nassau County. Daniel Belano, Esq., Attorney for Defendant.
Sondra K. Pardes, J.
DECISION AFTER HEARING
The defendant is charged with violating Penal Law § 265.01, (Criminal Possession of a Weapon).
A hearing was held on May 19, 2010 to determine if there was reasonable suspicion for the initial stop and questioning of the defendant by the police; whether there was probable cause for his arrest and whether the defendant's statement and the property seized at time of arrest should be suppressed.
At a hearing where the defendant challenges the legality of a search and arrest the People have the initial burden of establishing the legality of the police conduct in the first instance, People v.. Dodt, 61N.Y.2d 408 (1984). Once the People have met their initial burden the burden shifts to the defendant to establish by a fair preponderance of the evidence that the police conduct was illegal, People v. Berrios, 28N.Y.2d 361,(1971.
At this hearing the People called Police Officers Gene Piccirillo and Kevin O'Brien of the First Precinct, Nassau County, to testify as to the events that transpired on January 3, 2010 at approximately 11:30 p.m.
The court finds that Officer Piccirillo testified credibly to the following:
Police Officer Piccirillo and his partner, P.O. O'Brien, were on routine patrol of the “hot spots” in the precinct on January 3, 2010, near the location of a bar on Jerusalem Avenue in Uniondale. He defined a “hot spot” as a location “known to us for narcotics, gang neighborhood, complaints of drug use, drinking, loud noise, things of that nature.”
On the night in question P.O. Piccirillo and his partner were in plain clothes, driving an unmarked car, when they noticed four males walking down the street towards them “all of which we believed were displaying some type of gang color.”
They all had some significant article of clothing which was a dark blue in nature, a royal blue in nature, and based on my experience more often times than not it's some kind of affiliation with a local gang.
The officers pulled up to the curb and watched the four individuals from a distance. The four men entered a parking lot, approached a car and stood at the rear of the car talking for a few minutes before they all entered the car. The defendant sat in the driver's seat and turned on motor and they remained in the parked car for five or six minutes.
The police officers then decided to approach the vehicle to question the four individuals. P.O. Piccirillo approached the driver's side of the vehicle with his flashlight on. When he looked into the car he saw what appeared to be the “butt end of a knife” between the two front seats, as well as a baseball bat and several open beer containers in the back seat.
The officers directed all four men to exit the vehicle. P.O. Piccirillo retrieved the knife from the front seat, tested it and determined that it was a “gravity knife.” He approached the defendant who was standing near his partner, Officer O'Brien. As he displayed the knife to his partner the defendant said “he lived in Brentwood and he has the knife just in case.” At that point they placed the defendant under arrest for possession of a weapon.
On cross examination P.O. Piccirillo stated that “there was no criminal activity going on” while the men were standing at the rear of the car. He also acknowledged that it was a cold night in January when the men were sitting in the parked car with the motor running. P.O. Piccirillo responded to the following questions:
Q. And your testimony is that the vehicle was running for about five minutes when you decided you were going to make a field stop; is that right?
A. Yes.
Q. And up to this point no criminal activity, nothing has transpired that rises to your suspicion about something going on; is that right?
A. Well, based on what I had stated earlier, the location, the apparent colors that they were wearing, the narcotic activity, the arrests we've made in that location, that raised my suspicions that possibly something was going on.
The court finds that P.O. Kevin O'Brien of the First Precinct, testified credibly to the following:
He and his partner, P.O. Piccirillo, were on patrol on January 3, 2010, when they became involved in an investigation of “suspicious activity.”
He described his initial observation of the defendant and their decision to approach him as follows:
AFive to six minutes prior to us approaching him we observed him walking down Hawthorne Avenue.
QDo you recall who he was with?
AHe was with three other gentlemen.
QAnything about the way he was walking on the street that made you think anything?
AThere's, you know, they were dressed similar to gang colors, so—they were dressed similar to gang colors.
QWould you describe what you mean by that?
AThey—the wardrobe they were wearing was similar to clothing that we have issues with the gang.
QA specific type of clothing or something else?
AJust the way they were dressed.
QHow were they dressed that would make you think they were gang members?
AThe colors they were wearing.
QWhat colors where they wearing?
ABlack. Blue.
QDo you recall how they were wearing these colors?
ANo. Just, you know, on their clothing.
P.O. O'Brien also stated that the four men were “suspicious” because they stood at the rear of the defendant's vehicle and then got into the car and sat in the car and didn't pull out. He stated that he approached the passenger's side of the vehicle and saw an “object sticking out of the seat. He did not immediately recognize the object stuck between the front seats to be a knife until his partner retrieved it. He asked the four males “whose knife is it?” and the defendant stated that it was his knife.
The People argue that the police were justified in approaching the four men to ask them for identification because they were in a “high crime,” “high arrest area” and they were in a car with the motor running for some time. They argue further that upon approaching the vehicle “with their flashlights” they were able to see open containers and what appeared to be a knife. Based on that the police officer had “reasonable suspicion” to detain the defendant and his passengers “because he had seen the knife in plain view.” After his partner tested the knife and determined it to be a gravity knife they had probable cause to arrest the defendant.
The People also argue that the statements made by the defendant were made in response to “investigative questions.” He was not in custody at the time the statements were made and there were no threats or promises made to defendant prior to his making the statements.
Defense counsel argued that the defendant met his burden of proving that the police officers' stop and subsequent search of the defendant's car and questioning of the defendant was illegal. He argued that the police officers' testimony confirmed that they had no “objective credible reason” to make the initial stop of the defendant.
After considering the credible testimony of the People's witnesses the court finds that the People failed to meet their initial burden of establishing the legality of the police conduct in this matter.
In People v. Debour (40, N.Y.2d 2, 10) the Court of Appeals “set out a four-tiered method for evaluating the propriety encounters initiated by police officers in their criminal law enforcement capacity if a police officer seeks simply to request information from an individual, the request must be supported by an objective, credible reason, not necessarily indicative of criminality,” (emphasis added), People v. Hollman, 79 N.Y.2d 181, 184 (19920 Citing Debour, supra, at P. 223.
In the instant case the police officers failed to articulate an objective credible reason for approaching the defendant and his associates. They observed four men walk down the street, get into car in a parking lot and sit in the car with the motor running, on a cold January night, for a few minutes. When asked to explain their reason for approaching the four individuals both officers gave vague, general, conclusory explanations, to wit: it was a “high crime” area, they were “displaying gang colors.” “The fact that an encounter occurred in a high crime vicinity, without more, has not passed Debour and Hollman scrutiny,” (People v. Rutledge, 21 AD3d 1125, 1126 citing, People v. McIntosh, 96 N.Y.2d 521, 526–527,[2001] ).
In addition, the court finds that the officers' testimony with respect to the “gang colors” worn by the defendant and his associates, to be less than credible. Neither one of these officers was able to describe what the defendants were wearing to warrant the conclusion that they were “displaying gang colors”. Officer Piccirillo described the color as “dark blueroyal blue.” Officer O'Brien stated that they were wearing “black-blue.” Additionally, neither officer testified that he had any training or expertise in recognizing gang colors. Moreover, the mere fact a number of individuals are dressed in “a manner typical of” a gang is insufficient in and of itself to warrant the level of police intrusion in this case, People v. Havelka, 45 N.Y.2d 636, 641, ( [1978). Moreover, even if the defendant belonged to a gang and the incident occurred in a high crime area these factors alone would still not be enough to justify the police officer's actions, People v. Posnjak, 72 A.D.2d 966, (4th Dept., 1979).
In addition, notwithstanding the fact that the court finds that the police were not justified in their initial approach of the defendant and his associates, the court finds that the police were also not justified in searching the defendant's car.
The People argued that the police officer's seizure of the knife was justified because they observed it “in plain view' when they approached the defendant's car. Officer Piccirillo testified that he saw what “appeared” to be “a butt end of a knife ... tucked in between where the two (front) seats come together.” Officer O'Brien saw an “object sticking out of the seat” but did not recognize it to be a knife until his partner retrieved it. The fact that the police retrieved what they later determined to be a gravity knife “does not cleanse the initial (stop) of its shortcomings,” ( People v. McIntosh, supra at p. 527). “Evidence acquired in consequence of police conduct initiated on an insufficient predicate must be dismissed,” People v. Packer, 49 AD3d 184, (1st Dept., 2008). Moreover, noticing an object that appears to be a knife in and of itself did not give the officers probable cause to believe the defendant had committed a crime because “a knife is not a weapon per se ”, People v. Jose, 60 A.D.2d 918, 9 (2nd Dept., 1978).
Accordingly, based on the above the defendant's motion to suppress the knife retrieved from the defendant's car and any statements made by the defendant to the police, as the fruit of an illegal search and seizure, is GRANTED.
The fact that the defendant and three others were walking in a high crime area late at night, all wearing either blue or black clothing and then sitting in a car for several minutes with the motor running on a cold January night did not justify the police stop and subsequent search of the defendant's car. The court found that the police had no “objectively credible reason” for approaching the defendant and the court suppressed the “gravity knife” seized by the police and the statements by the defendant.
This constitutes the Decision and Order of this court.