Opinion
4402-2007.
Decided April 7, 2010.
Susan Sevin, Esq., The Legal Aid Society, Counsel for the Defendant.
Kristen Bitetto, Assistant District Attorney, Office of the Bronx District Attorney.
Defendant is charged with criminal possession of a weapon in the second degree (PL 265.03), criminal possession of a weapon in the fourth degree (PL 265.01) and possession of ammunition (AC 10-131 [I] [3]). Defendant moved to suppress a gun allegedly recovered from him, and a statement allegedly made by him to the arresting officer, on the grounds that they were obtained without requisite probable cause and were therefore the fruits of an unlawful arrest. Defendant further moved to suppress his statement on the grounds that it was unlawfully obtained in violation of Miranda. By decision dated April 8, 2008, Justice Troy Webber ordered that a Huntley/Dunaway hearing be conducted relative to his alleged post-arrest statement. Justice Webber, however, summarily denied defendant's motion to suppress the gun finding that he failed to assert the requisite standing to do so. By decision dated June 9, 2009, Justice Robert Torres ordered that a Mapp hearing be conducted relative to the arresting officer's recovery of the gun pursuant to defendant's amended motion to suppress. On March 16, 2010, this case was administratively transferred from Administrative Judge Efrain Alvarado, Part 80, to this court for hearings and trial. This court commenced a combined Mapp/Huntley/Dunaway hearing on March 17, 2010. Upon hearing oral argument from both the defendant and the People, and after reviewing prior court proceedings and documents on file with the court, this court reserved decision. On March 18, 2010, this court denied defendant's motion in its entirety from the bench. This expands that decision.
Findings of Fact
At the hearing, the People called one witness: New York City Police Department Officer Feliciano Ortiz. The defense also called one witnesses: Legal Aid Investigator Michael Cruz. This court finds Officer Ortiz's testimony credible to the extent indicated herein and no issues necessitating suppression were raised. Officer Ortiz testified that on October 15, 2007, he, and his partner Officer Santiago, were dressed in uniform and on patrol in a marked vehicle (H: 6-7). At approximately 10:05 p.m., Officers Ortiz and Santiago were driving on Jackson Avenue toward East 138th Street when they observed the defendant near the corner of 138th Street wearing an inside out gray hooded sweatshirt and blue pajama pants. The defendant then lifted a garbage bag from the ground and retrieved a black firearm from underneath it. He then looked in the direction of the officers and began walking with a bicycle on 138th Street toward Jackson Avenue (H: 7-10).
Officers Ortiz and Santiago followed the defendant on 138th Street to the corner of Jackson Avenue where they observed him place the bicycle on the ground and look in their direction (H: 11). After losing sight of him, they proceeded to the next corner where they observed him emerge from an open store grate holding the gun (H: 12). Officers Ortiz and Santiago then observed the defendant walk in the rear entrance of a restaurant. Officer Ortiz exited his vehicle and proceeded into the same rear entrance (H: 13). Although Officer Ortizdid not see the defendant, he observed a black gun on a chair next to the entrance (H: 14). Through the front window, Officer Ortiz noticed the defendant outside the restaurant. Officer Santiago then approached him, informed him that he was under arrest and placed him in handcuffs. The defendant asked Officer Santiago why he was under arrest, to which Officer Santiago replied, "for the firearm." In response, the defendant then stated in sum and substance, "I was inside playing pool. I just finished racking the balls," to which Officer Ortiz replied, "You weren't inside, you were out here by the garbage and then you walked around the side of the restaurant." The defendant then said, "I was out here by the garbage, but I was playing pool" (H: 15).
The defendant's witness, Investigator Michael Cruz, testified that he measured the distance across 138th Street to be approximately fifty feet from sidewalk to sidewalk and took a photograph of the area at East 138th Street and Jackson Avenue. Admittedly, he stated the photograph was taken on June 4, 2009, during daylight hours (H: 45). He did not, however, offer any testimony that the photograph accurately depicted the area as it appeared on October 15, 2007.
Conclusions of Law i. Probable Cause
Initially, the People have the burden of commencing a suppression hearing by presenting evidence of probable, or reasonable, cause to show the legality of the police conduct ( People v Baldwin, 25 NY2d 66; People v Malinsky, 15 NY2d 86). Once the People have met this burden, it is the defendant that bears the burden of proving any illegality of the police conduct ( People v Berrios, 28 NY2d 361; People v Baldwin, 25 NY2d 66).
In sustaining their burden of establishing reasonable cause, the People must demonstrate that the attendant circumstances coupled with defendant's behavior justified the arresting officers' intrusion as prescribed by Debour's four-tier approach ( People v Debour, 40 NY2d 210, 223). According to this standard, 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.
Here, Officer Ortiz's observation of the defendant lifting a garbage bag from the ground and retrieving a black firearm from underneath it provided probable cause that the defendant was engaged in the commission of a crime. The People have, therefore, demonstrated the legality of the arresting officers' conduct. Conversely, the defendant failed to prove the existence of any illegality on their part. Defendant's assertion that Officer Ortiz's testimony was not credible because it was nighttime, there was insufficient lighting and he was approximately fifty feet away is nothing other than mere conjecture. All Investigator Cruz testified to was that he measured the width of 138th Street and took a photograph of the area as it appeared during the day. Thus, defense counsel's baseless assertion that Officer Ortiz's testimony was tailored is wholly unsupported and entirely unpersuasive.
ii. Standing
Even if this court were to conclude that the arresting officers lacked the requisite probable cause, which it does not, defendant would not be entitled to suppression. While Fourth Amendment jurisprudence has always provided constitutional protection from unlawful searches and seizures, the Supreme Court determined that an individual must have a reasonable expectation of privacy in the area searched or property seized (see 1 Barry Kamins, New York Search and Seizure § 6.01 [Matthew Bender, Rev Ed]). "What a person knowingly exposes to the public . . . is not a subject of Fourth Amend protection ( Katz v United States, 389 US 347).
Axiomatically then, the defendant bears the burden of establishing a reasonable expectation of privacy before being entitled to challenge the propriety of a law enforcement officer's search and seizure (see CPL 710.20; People v Rodriguez, 69 NY2d 159; People v Ponder, 54 NY2d 160; see also 1 Barry Kamins, New York Search and Seizure § 1.03[1] [Matthew Bender, Rev Ed]). Here, the defendant does not contest that the arresting officers recovered the gun on a chair inside the entrance of a public establishment, which the People claim was placed there by the defendant. There being no indication that the defendant had any expectation of privacy in that establishment, the People correctly argue the defendant lacks standing to challenge such seizure.
It is also well established that Fourth Amendment protection does not extend to an area or property that a defendant disavows ( Abel v United States, 362 US 217). Since it is implausible for a defendant to retain a reasonable expectation of privacy in such an area or property, the defendant must first establish that he maintained such an expectation before the People are obligated to prove he abandoned it, which, as noted, he failed to do ( People v Ramirez-Portoreal, 88 NY2d 99; see also 1 Barry Kamins, New York Search and Seizure § 6.02[1] [Matthew Bender, Rev Ed]). Where a defendant disassociates himself from property in a public area, particularly when it appears from the totality of the circumstances that he had no connection to that area, he forfeits any expectation of privacy he may otherwise have enjoyed ( People v Murray, 256 AD2d 116 [1st Dept 1998]).
Notwithstanding defendant's failure to establish standing, the People, though not required to, proved he abandoned the gun by attempting to rid himself of it upon the lawful approach of Officer Ortiz ( People v Ferreras, 231 AD2d 471 [1st Dept 1996]). Officer Ortiz testified that he observed the defendant take a gun from under a garbage bag, carry it for a street block and enter the premises with it. On several occasions, he noticed the defendant looking in his direction. Within minutes of the defendant entering, Officer Ortiz followed the him inside and recovered a gun from a chair adjacent to the entrance. He then observed the defendant outside in front of the establishment without the gun. Based on this testimony then, the People indeed demonstrated the defendant clearly intended to relinquish custody and control of the gun by leaving it in a place that he had no ostensible connection with and conspicuously exposed to the public ( People v Torres, 115 AD2d 93 [1st Dept 1986]; see also Murray at 116). Moreover, nothing he subsequently did evinced his intention to retain it ( People v Marrero, 173 AD2d 244 [1st Dept], appeal dismissed, 78 NY2d 969). Consequently, defendant's motion to suppress the gun must be denied for these reasons as well.
ii. Pre-Miranda Statements
a. Custody
"In deciding whether a defendant was in custody prior to receiving his warnings, the subjective beliefs of the defendant are not to be the determinative factor. The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position" ( People v Yukl, 25 NY2d 585, 589; People v Rodney P., 21 NY2d 1; People v DeJesus , 32 AD3d 753 [1st Dept 2006]; People v Robbins, 236 AD2d 823 [4th Dept], lv denied 90 NY2d 863; People v Lynch, 178 AD2d 779, 781 [3rd Dept 1991), lv denied 79 NY2d 949).
In making such an assessment, courts must consider the "totality of the circumstances" ( People v Centano, 76 NY2d 837; see also Minnesota v Murphy, 465 US 420 (1984). Among such circumstances is whether the defendant voluntarily appeared at, or accompanied officers to, the police precinct and whether questioning is conducted in a non-coercive atmosphere ( People v Acquaah, 167 AD2d 313 [1st Dept 1990], app denied 78 NY2d 961; People v Davis, 161 AD2d 395 [1st Dept], app denied 76 NY2d 955). Based on this court's findings of fact stated above, it is axiomatic that the defendant was indeed in custody.
b. Interrogation
A suspect is subjected to interrogation when he is confronted with "express questioning or its functional equivalent" ( Rhode Island v Innis, 446 US 291). The "functional equivalent" of express questioning is "words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect" ( Innis at 301). The Court of Appeals has similarly held that "[w]hat constitutes interrogation' of a suspect . . . is determined not by the subjective intent of the police, but by whether an objective observer with the same knowledge concerning the suspect as the police had would conclude that the remark or conduct of the police was reasonably likely to elicit a response" ( People v Ferro, 63 NY2d 316, cert denied 427 US 1007). Statements made at a preliminary stage of an investigation in response to a law enforcement agent's general inquiry are not usually considered the product of an interrogation ( People v Johnson, 59 NY2d 1014; People v Chestnut, 51 NY2d 14; People v Huffman, 41 NY2d 29). Also exempted from interrogation are spontaneous statements that were essentially forced upon law enforcement agents and not the product of any inducement, provocation, encouragement or acquiescence on their part ( People v Maerling, 46 NY2d 289).
The testimony presented during this hearing clearly establishes that defendant's statement to Officer Ortiz was not the product of an interrogation intended to elicit an incriminating response. It was not, therefore, subject to the Miranda rule. As noted above, when the defendant asked why he had been arrested, the officer's response was simply, "for the firearm." Such a direct and limited statement by the arresting officer articulated in response to a specific question by the defendant cannot reasonably be construed as intended to elicit an incriminating response. Nor does this court find Officer Ortiz's other comment, "[y]ou weren't inside, you were out here by the garbage and then you walked around the side of the restaurant," to have been intended or designed to elicit an incriminating response. Defense counsel's claim that the statement must be suppressed because once he was in custody, the arresting officers were prohibited from engaging in any conversation or communication with him absent Miranda is entirely inconsistent with prevailing authority and patently unpersuasive.
Accordingly, this court finds that viewing the evidence in the light most favorable to the People ( see People v Williams, 84 NY2d 925; see also People v Contes, 60 NY2d 620), they have satisfied their burden of demonstrating by a preponderance of the evidence that defendant's arrest, and subsequent statement, were lawful. Defendant's motion to suppress is therefore denied in its entirety.
This constitutes the decision and order of the court.