Opinion
2010KN086039.
Decided May 25, 2011.
Suppression motion granted.
Officer of Charles J. Hynes, Esq., District Attorney — Kings County, Brooklyn, New York, By: Viviane Dussek, Esq., Gary Barnett, Esq., for the People.
The Legal Aid Society, Brooklyn, New York, By: Jenny Cheung, Esq., for the Defendant.
Probable cause did not exist to arrest the defendant and any statements made by the defendant are suppressed as the fruit of the poisonous tree.
Charges
On October 29, 2010, defendant, Tina Ortiz, was arraigned and charged with one count each of PL 140.10 [E]Criminal Trespass In The Third Degree
PL 140.05Trespass
On April 12 and 13, 2010, the court held a suppression hearing and trial. The Huntley/Dunaway was held to determine whether there was probable cause to arrest the defendant and whether statements made by the defendant should be suppressed pursuant to People v Huntley, 15 NY2d 72, 555 N.Y.S.2d 838, 204 N.E.2d 179) and Dunaway v New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824).
Statement of Facts
The People called two witnesses: Sergeant Reid Masin, New York City Police Department, Shield No. 3357, 75th Precinct, Brooklyn, New York and Police Officer Jody Schellenberg, New York City Police Department, Shield No. 31716, 75th Precinct, Brooklyn, New York. No witnesses were called by the defendant.
Testimony of Sergeant Masin
Sergeant Masin has been employed with the New York City Police Department for approximately nine years. On October 28, 2010, his assignment was condition supervisor, which meant he was responsible for enforcing quality of life violations in and around the 75th Precinct. The Sergeant testified that his tour of duty started at 5:55 a.m. on October 28, 2010. He was working in uniform in an unmarked vehicle with his partner, Police Officer Diego Dotres. The Sergeant testified that he was parked on Miller Avenue facing southbound observing the courtyard of 2221 Pitkin Avenue. The Sergeant testified that 2221 Pitkin Avenue is also known as Fiorentino Houses, a building that is owned by the New York City Housing Authority (NYCHA). He further testified that police officers are custodians of NYCHA buildings, and as such, their duties include enforcing NYCHA trespassing rules and regulations. Sergeant Masin testified that there is a sign located in front of every entranceway of all NYCHA buildings describing that the building belongs to NYCHA and the name of the complex.
The Sergeant testified that there is a no trespassing sign in English and Spanish posted at the front entrance of 2221 Pitkin Avenue, and further testified that he was at the location to enforce the no trespassing in and around the housing project.
At approximately, 11:47 a.m., the Sergeant testified that he observed a female individual, whom he identified as the defendant, walking alone. He testified that he recognized the defendant as someone he has had previous interactions with. As he continued to observe her, the Sergeant testified he observe her enter the front entranceway and go through the vestibule of 2221 Pitkin Avenue to the first floor and briefly observed her on the stairs before the door shut. Approximately five minutes later, the Sergeant testified that she came out of the building, and began speaking to another female in front of the building for no more than a minute. The Sergeant also testified that there is a no trespassing sign posted inside the building. At that point, he testified that he instructed his partner to turn the vehicle around so that they could talk to the defendant. The Sergeant testified that he asked the defendant if she was visiting anyone in the building, and if so, what is the person's name. The Sergeant testified that the defendant who was not in custody at this time stated that she had just popped in the building to see if anyone was there who owed her money. The Sergeant further testified that defendant was unable to provide the name, apartment number or floor of the person she was visiting.
Upon establishing that the defendant was not visiting anyone, the officer testified he instructed Officer Dotres to place defendant in custody.
Testimony of Officer Schellenberg
Officer Schellenberg has been a employed with the New York City Police Department for approximately eleven years. He is currently assigned to conditions auto which means addressing quality of life issues, such as urinating in public, drinking in public, trespassing, etc., in the vicinity of the 75th Precinct. He testified that 2221 Pitkin Avenue is a NYCHA building, and as such, police officers are custodians, which gives them the authority to grant access to be inside of the buildings. He testified that there is a "no trespassing" sign posted just outside the entranceway to 2221 Pitkin Avenue and there is a sign posted at the front entranceway to the courtyard of Fiorentino Plaza, as well as on the door to the roof.
At approximately 11:47 a.m., on October 28, 2010, the officer testified that he was on the other side of Fiorentino Plaza when he was contacted by Sergeant Masin to come to the front of 2221 Pitkin Avenue. When he arrived at the location, he testified that he saw the Sergeant speaking to an individual whom he believed had been arrested. Officer Schellenberg testified that Sergeant Masin explained to him why the defendant had been arrested and then directed him to transport her to the 75th Precinct for processing. He further testified that he did not give defendant permission to enter 2221 Pitkin Avenue.
While interviewing the defendant at the 75th Precinct, Officer Schellenberg testified that the defendant stated she resided at 368 Miller Avenue and not at 2221 Pitkin Avenue.
Defense Counsel's Argument
Defense counsel argues that under a DeBour level one approach, the request for information must be supported by credible objective reason, rather than a whim or idle curiosity. Defense counsel contends that what the officer saw did not amount to a level one questioning. There was no reason for the officer to approach the defendant because there was no testimony of the defendant acting out of the ordinary or was recognized as someone known not to belong in the building. Questioning the defendant for five minutes was too long a time span for obtaining information only. Officer Schellenberg testified that he knew nothing of the arrest and based the arrest process on what Sergeant Masin said.
Defense counsel further argues that defendant's behavior was not unusual or suspicious or distinguished her anyway from any other person going into the building. To support her defense, defense counsel cited a number of cases to wit: People v Almonte, 2011 NY Slip Op 50356 [U], People v Banks, NYLJ, June 27, 1997 at 27, col 3, People v. Taylor, 12 Misc 3d 1154(A) [NY Sup. 2006], People v Hollman, 79 NY2d 181; People v Cornelius, 113 AD2d 666; People v Miles, 918 NYS2d 594 [ 2011 NY Slip Op. 02035]).
In opposition to suppression, the People argued the officer was at the location to deal with quality of life issues, and testified that he recognized the defendant and knew she did not live in the building and when he approached her he knew that she did not live in the building, he asked her if she was visiting anyone. The officer's objective credible reason for approaching the defendant was knowing that she did not live in the building. Therefore, the actions of the officer were consistent with DeBour level one in that he was enforcing trespassing violations, he knew that the defendant did not live in the building, and she was unable to provide him with the name of anyone she was visiting in the building.
There was no testimony that the Sergeant recognized the defendant as someone who did not live in the building. According to his testimony on direct, he Sergeant was asked, "When you spoke to the defendant what happened? And, he answered, Well, having recognized the Defendant as someone that we had previous interactions with, I asked the defendant if, if she was visiting anyone in the building, and if so, who that was. . . ." ( see transcript, dated April 12, 2011 at pg 8:25 and pg 9:1-3).
Conclusions and Rule of Law
At a suppression hearing, the People have the initial burden of presenting evidence of probable, or reasonable cause to show the legality of police conduct ( see People Baldwin, 25 NY2d 66 ; People v Malinsky, 15 NY2d 86; People v Wise, 46 NY2d 321; People Dodt, 61 NY2d 408; People v Moses , 32 AD3d 866 [2nd Dept. 2006] lv. den. 7 NY3d 297). Once the People have met this burden, it is the defendant that bears the burden of proving the illegality of police conduct ( People v Berrios, 27 NY2d 361; People v DiStefano, 38 NY2d 640; People v Lombardi, 18 AD2d 177 [2nd Dept. 1963]).
In sustaining their burden of establishing the legality of the officer's conduct, the People must demonstrate that the circumstances coupled with the defendant's behavior justified the arresting officer's intrusion as prescribed by the Court of Appeals in People v DeBour's four-tier approach to police-citizens encounters ( see People v DeBour, 40 NY2d 210, 223; People v Hollman, 79 NY2d 181, 184; People v Soto, 2010 NY Slip Op 5063 [U]).
Level one allows an officer to approach an individual and inquire about basic, nonthreatening matters such as name, address and destination. This first level is known as a "request for information". The police must have an articulable reason for the questioning, but the reason need not be indicative of criminality ( see People v Hollman, supra at 184).
The second level, the common-law right of inquiry, permits a momentary stop when there is a "founded suspicion that criminal activity is afoot." When an officer has a reasonable suspicion that an individual has been involved in criminal activity, that officer may forcibly stop and detain that person. Finally, an officer may effect a full blown arrest when there is probable cause to believe that an individual has, is or is about to commit a crime ( DeBour, 40 NY2d at 213, supra).Under DeBour, the officer must have some credible objective reason for approaching the defendant. Courts have held that solely emerging from a NYCHA building that has a posted "no trespassing" sign, in and of itself, is not a credible objective reason to approach a person to request information under Debour ( see People v Banks, NYLJ, June 27, 1997 at 27, col 3 and People v Almonte, 2011 NY Slip Op 50356 [U]).
In Banks, the officers testified that they were conducting a "vertical building check" of a housing project. This meant that they patrolled the building looking for individuals who according to their judgment did not belong in the building. In the lobby of the building, the officers stopped and ultimately arrested the defendant for criminal trespass even though he claimed to be visiting someone in the building. After being unable to verify who that person was, the defendant was placed under arrest. When he was searched, the officers recovered fifteen vials of crack cocaine and twenty-four dollars. In that case, the court held that nothing in defendant's behavior distinguished him from anyone else who might have been in the building. The court further held there was no testimony of suspicious activity in the building, that the defendant was recognized as a person known not to belong in the building, or that it was unusual for someone to be in the stairwell area. The Banks court went on to hold that in the absence of any objective basis for singling the defendant out from other legitimate residents or invitees there was no articulable basis for stopping the defendant and granted the motion to suppress.
In Almonte, the police observed the defendant exit the building which was located in a high crime area known for drugs and robberies. The defendant was seen grabbing his waistband and shifting his gaze back and forth from the officer to his waistband. As the officer approached him, the defendant took off running. As the officer was pursuing the defendant, he observed the defendant attempt to throw a clear plastic bag containing white powder over a fence. The court held that even the location of the building in a high crime area was not enough alone to justify the approach because there was no indication prior to the officer's appearance that the defendant was a trespasser, engaged in any other criminal activity or any other objective credible reason for approaching the defendant. In that case, the motion to suppress was granted.
Conversely, the courts have held that a person who is standing in the vestibule of a NYCHA building that has a history of drug activity may be approached by the police, questioned about residency and required to produce identification, even if that individual has not engaged in conduct indicative of criminality ( see People v Hendricks , 43 AD3d 361 [1st Dept. 2007]). Such questioning is considered a level one contact under DeBour. A person's mere presence in a public housing building known for drug activity is, therefore, sufficient to justify an officer's inquiry into whether the individual is there lawfully ( Hendricks at 363).
In another case, People v Ventura ( 30 Misc 3d 587 ), the officers conducted a "vertical building check" and observed the defendant in the vestibule, thought the defendant might be a trespasser and asked him for identification and who he was visiting. When the defendant could not identify who he was visiting, he was arrested for trespassing.
The Ventura court held that the request for information was based upon an objective, credible reason. The building had a history of drug activity and trespassing, and although defendant's activities were not necessarily indicative of criminality, the officer was warranted in making an inquiry to determine if defendant was legitimately in the building. Once the officer determined defendant was not a resident, he was justified in asking if defendant was visiting someone in the building and who that someone was. When defendant could not supply that information, even after taking the officer to two separate floors, the officer had probable cause to arrest him for trespass.
In 1992, the Legislature criminalized trespass in public housing, by adding subdivision (e) to the crime of Criminal Trespass in the Third Degree. The purpose of the bill was to improve security in housing projects. The introducers' memorandum states that the new provision was necessary to close a loophole in existing laws which were ineffective against would be trespassers on NYCHA property, because public housing was considered open to the public (see People v Ventura , 30 Misc 3d 587 , supra, citing Introducers' Mem. in Support, Bill Jacket, L.1992, ch. 434, at 8]).
In Ventura, the court further held that neither the plain language of the statute nor its legislative history suggest that the Legislature intended to eliminate or relax DeBour level one protections in housing projects. No matter the location, luxurious or modest, the police must have " some objective credible reason" ( DeBour at 223) (emphasis added) to request information about a person's residency. Defendants may not be selected for questioning based on their presence in the building alone. At a minimum, there must be evidence of prior criminality in the building ( Ventura at 347).
In the instant case, the officer had no legal basis to approach and request information from defendant. Although he testified that he had "previous interactions with" the defendant, he did not state the nature of that interaction. For example, he never stated whether the defendant was known to him to be a trespasser who did not belong in the building, whether the building or the area is drug prone. Nor did he articulate any unusual or suspicion behavior. There was no testimony of complaints from tenants about suspicious individuals being in the building. In other words, there was no stated reason for stopping the defendant other than for entering and exiting the building within five minutes. Based upon current case law, this is not enough to justify stopping and arresting the defendant for trespass.
Moreover, the police further did not articulate what objective facts specifically raised his suspicion about the defendant's presence in the building. Since the officer did not articulate a basis to approach and question the defendant, the initial stop was illegal, and there was no probable cause to arrest the defendant.
Suppression of Statement
Any statements made by the defendant is barred from use at trial as fruit of the poisonous tree of the illegal arrest ( see Wong Sun v United States, 371 U.S. 471). Therefore, defendant's Huntley/Dunaway motion is granted.
Conclusion
To the extent that the officer failed to articulate a credible, objective reason for stopping the defendant, the officer's initial inquiry, based solely on defendant's presence in the NYCHA building, and the resulting arrest were unlawful. It follows, therefore, that defendant's statements are the fruits of the poisonous tree and must be suppressed. Therefore, defendant's suppression motion is granted.
The foregoing constitutes the decision and order of the court.