The People, Respondent,v.Joel Joseph, Appellant.BriefN.Y.March 31, 2016 To be argued by ARTHUR H. HOPKIRK (15 minutes requested) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOEL JOSEPH, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT APL-2015-00001 SEYMOUR W. JAMES, JR. THE LEGAL AID SOCIETY 199 Water Street - 5th Floor New York, N.Y. 10038 (212) 577-3669 FAX: (212) 509-8431 By: ARTHUR H. HOPKIRK Of Counsel May 20, 2015 i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ............................................................................... 1 QUESTION PRESENTED ........................................................................................ 3 FACTUAL INTRODUCTION .................................................................................. 3 SUMMARY OF ARGUMENT ................................................................................. 5 STATEMENT OF FACTS ...................................................................................... 11 The Darden Hearing Decision ....................................................................... 11 Limitation on the use of testimony at the Darden hearing in the determination of probable cause and reasonable suspicion ........................... 12 The People’s Case at the Dunaway/Mapp Hearing ....................................... 12 The Investigation of Siffreido Gonzalez .............................................. 12 Siffreido Gonzalez Leaves His Apartment on February 1, 2010 ........ 16 The Events Preceding Appellant’s Arrest ............................................ 19 The Defense’s Case at the Dunaway/Mapp Hearing ..................................... 21 Arguments of Counsel in Support of the Suppression Motion ...................... 23 The Hearing Court’s Decision on the Suppression Motion ........................... 26 The Appellate Division’s Decision ................................................................ 30 ii ARGUMENT A DETECTIVE ARRESTED APPELLANT WITHOUT PROBABLE CAUSE AND, THEREFORE, THE PLASTIC DUANE READE BAG CONTAINING COCAINE THAT WAS SEIZED FROM APPELLANT’S POCKET AFTER HIS ARREST SHOULD HAVE BEEN SUPPRESSED. U.S. CONST., AMEND. IV; N.Y. CONST., ART. I, § 12. .................................................................................................. 31 A. The Task Force had neither probable cause to arrest nor reasonable suspicion that a crime had been committed when appellant removed a plastic Duane Reade bag from Gonzalez’s vehicle. ............................................................................................... 34 B. The level of suspicion was not elevated to probable cause to arrest when appellant ran after being followed at night by a plainclothes detective who grabbed his hair. ...................................... 46 CONCLUSION ........................................................................................................ 53 iii TABLE OF AUTHORITIES CONSTITUTIONAL PROVISIONS N.Y. Constitution, Article I, § 12 ............................................................. 3, 31, 34, 47 U.S. Constitution, Amendment IV ........................................................... 3, 31, 34, 47 STATUTES Criminal Procedure Law § 450.90(1) ........................................................................ 2 Criminal Procedure Law § 470.15(1) ...................................................... 9, 35-36, 46 Criminal Procedure Law § 690.30(1) ...................................................................... 41 Criminal Procedure Law § 710.60(3)(b) .................................................................. 36 Penal Law § 220.16(1) ............................................................................................... 1 CASES People v. Baker, 20 N.Y.3d 354 (2013) ................................................. 10, 47, 49, 52 People v. Bigelow, 66 N.Y.2d 417 (1985) ............................................................... 40 People v. Boodle, 47 N.Y.2d 398 (1979) ................................................................. 49 People v. Bora, 83 N.Y.2d 531 (1994) ........................................................ 10, 47-48 People v. Cantor, 36 N.Y.2d 106 (1975) ................................................................. 49 People v. Concepcion, 17 N.Y.3d 192 (2011) ............................................... 9, 36, 46 People v. Darden, 34 N.Y.2d 177 (1974) ............................................................ 3, 30 People v. De Bour, 40 N.Y.2d 210 (1976) .............................................. 5, 34-35, 49 People v. DiMatteo, 62 A.D.3d 418 (1st Dept. 2009) .............................................. 31 iv People v. Edwards, 69 N.Y.2d 814 (1987) .............................................................. 41 People v. Hanlon, 36 N.Y.2d 549 (1975) ................................................................ 41 People v. Harrison, 57 N.Y.2d 470 (1982) ............................................................. 48 People v. Havelka, 45 N.Y.2d 636 (1978) ............................................................... 36 People v. Hollman, 79 N.Y.2d 181 (1992) .................................................. 34-35, 48 People v. Jenkins, 44 A.D.3d 400 (1st Dept. 2007) ...................................... 31, 51-52 People v. Joseph, 121 A.D.3d 445 (1st Dept. 2014) ............................................ 1, 31 People v. LaFontaine, 92 N.Y.2d 470 (1998) ............................................... 9, 36, 46 People v. Leung, 68 N.Y.2d 734 (1986) .................................................................. 48 People v. Loewel, 50 A.D.2d 483 (4th Dept. 1976), aff’d on other grounds, 41 N.Y.2d 609 (1977) .......................................................................... 7, 40-41 People v. Martinez, 80 N.Y.2d 444 (1992) .................................................. 10, 48-51 People v. Moore, 6 N.Y.3d 496 (2006) ................................................................... 51 People v. Robinson, 68 N.Y.2d 541 (1986) ............................................................. 36 People v. Ruiz, 190 A.D.2d 572 (1st Dept. 1993) .................................................... 51 People v. Troche, 185 A.D.2d 368 (2d Dept. 1992) ................................................ 51 People v. Kevin W., 22 N.Y.3d 287 (2013) ............................................................. 36 People v. White, 73 N.Y.2d 468 (1989) ................................................................... 36 People v. Yusef, 19 N.Y.3d 314 (2012) ................................................... 9, 35-36, 46 Srgo v. United States, 287 U.S. 206 (1932) ............................................................. 41 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : JOEL JOSEPH, : Defendant-Appellant. : ---------------------------------------------------------------------X PRELIMINARY STATEMENT By permission of The Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, granted December 31, 2014 (A 1),1 appellant, Joel Joseph, appeals from an order of the Appellate Division, First Department, entered October 7, 2014, People v. Joseph, 121 A.D.3d 445 (1st Dept. 2014) (A 2-4), that affirmed a judgment of the Supreme Court, New York County, rendered February 8, 2012. The judgment convicted appellant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree [Penal Law §220.16(1)], as charged in New York County Indictment 575N/2010, and sentenced him to a determinate term of imprisonment of six years and three years of post-release supervision (Bruce Allen, J., at Darden hearing; Robert M. Stolz, J., at Mapp/Dunaway 1 Numbers in parentheses following the letter “A” refer to pages in the Appendix. 2 hearing; Michael R. Sonberg, J., at decision on motion to grant Darden hearing and protective order, and at plea and sentencing). On February 12, 2015, this Court issued an order assigning Seymour James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038, as counsel for Mr. Joseph on appeal. Mr. Joseph was discharged from post-release supervision on July 24, 2014 and, therefore, has fully served the sentence imposed in this case. This court has jurisdiction to entertain this appeal pursuant to Criminal Procedure Law §450.90(1). The issues of whether law enforcement officers had either probable cause to arrest Mr. Joseph or reasonable suspicion that a crime had been committed to justify a forcible stop of appellant; and whether the package of drugs seized from his jacket pocket should have been suppressed because there was not probable cause to arrest and, consequently, the seizure of the drugs was not the product of a valid search incident to arrest are fully preserved for this Court’s review. Those issues are preserved by a combination of defense counsel’s written submissions following the combined Dunaway/Mapp hearing (A 587-600, 620-29); counsel’s oral arguments during and after the hearing (A 95-96, 538-61); and Justice Stolz’s seven-page written decision dated November 10, 2011 (A 630- 37). 3 QUESTION PRESENTED Whether a detective arrested appellant without probable cause and, therefore, the plastic Duane Reade bag containing cocaine that was seized from appellant’s pocket after his arrest should have been suppressed. U.S. Const., Amend. IV; N.Y. Const., Art. I, §12. FACTUAL INTRODUCTION A joint task force that included, inter alia, agents of the federal Drug Enforcemnt Administration (DEA) and detectives from the New York City Police Department conducted an investigation starting in the latter months of 2009. It led to surveillance of an apartment on Gold Street in lower Manhattan and of Siffreido Gonzalez,2 a man associated with the apartment. A confidential informant told a detective that Gonzalez was involved in drug activity at the apartment. Based on the unsealed portion of the record,3 it is unknown when the informant, who was found to be reliable at a Darden4 hearing, last provided information about the apartment or Gonzalez. Moreover, there is nothing in the 2 The investigation’s target was referred to by multiple names at the suppression hearing including Siffreido Gonzalez, Siffreido Gonzalez Alvarez, Siffreido Alvarez and Siffreido (A 38, 107-08, 131, 221). For the sake of consistency and to avoid confusion with a Detective Alvarez who was one of the investigators, the investigation’s target will be referred to as Siffreido Gonzalez or Gonzalez. 3 Based upon an agreement reached at the suppression hearing, the sealed portion of the record that includes the transcript of the Darden hearing is not relevant to the determination of the suppression issue raised on this appeal. See pp. 12 and 35-36, and footnote 6, post. 4 People v. Darden, 34 N.Y.2d 177 (1974). 4 unsealed part of the record indicating that the informant connected appellant, Joel Joseph, to the apartment or otherwise linked him to drugs. At about 7:15 p.m. on February 1, 2010, members of the task force who were monitoring video surveillance saw Gonzalez leave the apartment carrying a white plastic bag. Gonzalez went to a nearby garage and, shortly thereafter, a BMW that Gonzalez had previously been seen driving left the garage. Gonzalez drove to a club on 29th Street where he stayed for approximately an hour. Gonzalez then drove to Adam Clayton Powell Boulevard south of 127th Street. Soon thereafter, appellant, Joel Joseph, approached the BMW, leaned into the lowered passenger-side window, and appeared to have a brief conversation. Appellant went to the back of the vehicle, the hatchback opened, and appellant removed a white plastic bag and put it in his jacket pocket. Appellant walked west on 127th Street toward the building where, appellant testified, his girlfriend lived. Detective Alvarez, who was in plainclothes, followed on foot. As appellant approached his girlfirend’s building, Alvarez testified that he grabbed appellant’s hair. Appellant began to run. Alvarez chased appellant, supposedly yelled more than once, “Police, stop,” followed appellant into the building’s stairwell off the lobby, and grabbed appellant by his dreadlocks and jacket. Appellant, who testified that he initially feared that he was going to be robbed, was eventually 5 handcuffed by Alvarez and other officers. A plastic “Duane Reade” drug store bag containing a ziplock bag of cocaine was recovered from appellant’s jacket pocket. There is no evidence in the record that the task force had recovered any drugs previously during their months’ long investigation of Gonzalez. The hearing court denied a motion to suppress physical evidence. The court held that the task force’s members had probable cause to arrest appellant when he took the bag out of the BMW based upon their belief that they had witnessed a drug transaction. As an alternative holding, the court ruled that if the task force’s members only had “reasonable suspicion” that a crime had been committed when appellant took the bag from the vehicle, their reasonable suspicion ripened into probable cause when appellant ran and struggled with the officers. Appellant, who had been indicted for criminal possession of a controlled substance in the first and third degrees, pleaded guilty to third-degree possession. On appeal, the Appellate Division, First Department, in affirming the judgment, endorsed the rationale of the hearing court’s decision on the suppression motion. SUMMARY OF ARGUMENT The courts below erred in concluding that there was probable cause to arrest appellant or, alternatively, reasonable suspicion that a crime had been committed when appellant removed a Duane Reade bag from the hatchback of Gonzalez’s car. Under the framework established by this Court in People v. De Bour, 40 N.Y.2d 6 210 (1976), there was at most a “founded suspicion” of criminality that would support a “common-law right of inquiry.” The People failed to establish that the information available to the Task Force when appellant put the bag in his pocket was sufficient to justify either an arrest or a forcible stop and detention. There is no evidence in the record that members of the Task Force ever saw or heard of appellant during the four to five months they investigated Gonzalez. Given that, there is also no evidence that appellant was ever at the Gold Street apartment. There is also nothing in the record about any intercepted communications involving appellant during the Task Force’s investigation. Moreover, on February 1, 2010, Task Force members did not see appellant give Gonzalez money nor did they overhear the conversation between Gonzalez and appellant before appellant took possession of the Duane Reade bag – the sort of bag law-abiding New Yorkers carry every day. On this record, no more than a “founded suspicion” existed that appellant had received drugs in the bag even if one assumed, arguendo, that Gonzalez was still involved in drug-related activities as of February 1st. However, that assumption is not sustainable on this record. In litigating the defense’s motion to suppress the cocaine, the prosecution agreed that it would rely solely on Justice Allen’s findings following a Darden hearing – rather than the minutes of the confidential informant’s testimony at that hearing – and whatever 7 evidence was introduced at the Dunaway/Mapp hearing. Based on those sources of information, the People failed to meet their burden of establishing that the confidential informant’s tips about Gonzalez’s alleged drug-related activitiy out of the Gold Street apartment were not stale. See People v. Loewel, 50 A.D.2d 483, 488 (4th Dept. 1976), aff’d on other grounds, 41 N.Y.2d 609 (1977) (it is People’s burden to show that informer’s information was fresh). Justice Allen’s findings established that the informant existed and the nature of the information he or she provided. There is no evidence in the relevant record, however, that the informant provided any information about appellant. Moreover, Justice Allen made no findings about how long before appellant’s February 1, 2010 arrest the informant last provided information to the Task Force about Gonzalez. Since the informant first spoke to Detective Alvarez four to five months before appellant’s arrest, the informant’s tips about Gonzalez could have been weeks’ or months’ old. In light of the prosecution’s burden to establish the freshness of the tips, it cannot be assumed based on the record of Justice Allen’s findings after the Darden hearing that the informant’s tips about Gonzalez were not stale. The record does not support the Appellate Division’s conclusion that the Task Force confirmed that Gonzalez was continuing to traffic drugs from the Gold Street apartment up until appellant’s arrest. There was no evidence that the Task Force’s members had recovered any drugs during their months of investigation, 8 seen any drugs, or intercepted any communications about drugs. That Gonzalez carried a variety of bags in and out of the Gold Street apartment proved that Gonzalez lived there, but failed to confirm that he was still trafficking drugs on the date of appellant’s arrest. In fact, one of the People’s witnesses conceded that the types of bags Gonzalez carried were similar to those ordinary people carry daily. In short, the Task Force’s observations of Gonzalez’s activities were insufficient to establish that the informant’s tips about his narcotics-related activities were not stale. For all of these reasons, the record does not support the conclusion that there was either probable cause to arrest appellant or “reasonable suspicion” to believe he had committed a crime when he took the Duane Reade bag from Gonzalez’s car. * * * The hearing court’s and Appellate Division’s primary holdings were that there was probable cause to arrest appellant when he picked up the Duane Reade bag. However, those courts held in the alternative that even if probable cause was initially lacking, there was “reasonable suspicion” that appellant had commited a crime that ripened into probable cause to arrest when appellant ran from Alvarez and subsequently struggled with the officers. 9 As a preliminary procedural matter under the Criminal Procedure Law, if this Court agrees with appellant that there was at most “a founded suspicion that criminal activity was afoot” when appellant picked up the bag, it cannot uphold the conviction on a theory that appellant’s flight and the subsequent struggle elevated that “founded suspicion” to probable cause. That issue is beyond this Court’s power to review because the hearing court never addressed whether those facts would have elevated a founded suspicion – as opposed to reasonable suspicion – to probable cause. C.P.L. §470.15(1); People v. Yusef, 19 N.Y.3d 314, 322 (2012); People v. Concepcion, 17 N.Y.3d 192, 195 (2011); People v. LaFontaine, 92 N.Y.2d 470, 473-74 (1998). In any event, arguments that either a “founded suspicion” or a “reasonable suspicion” were elevated to probable cause to arrest by appellant’s flight and subsequent actions lack support in the record here. Detective Alvarez admitted: “I grabbed his hair originally as we were walking to [appellant’s girlfriend’s] building” (A 353). It was only after the plainclothes officer grabbed appellant’s hair from behind at night in a high-crime area that appellant ran. Thus, appellant’s “flight” was not spontaneous, but was precipitated by Alvarez’s use of force. Alvarez’s grabbing of appellant’s hair was a seizure under the Fourth Amendment because it involved the use of “physical force” and was also a seizure under the New York constitution because it involved a significant interference with 10 appellant’s freedom of movement. See People v. Bora, 83 N.Y.2d 531, 534-35 (1994). That seizure could only be justified if the Task Force already had “reasonable suspicion” to believe appellant had committed a crime. See People v. Martinez, 80 N.Y.2d 444, 448 (1992). Since, however, appellant maintains the Task Force had at most a founded suspicion of criminality, the seizure was illegal. Due to this preceding illegal seizure, the People could not rely upon appelant’s flight after Alvarez grabbed his hair and appellant’s struggling after Alvarez tackled him to establish even “reasonable suspicion,” let alone the “probable cause” needed to justify a search incident to arrest. See People v. Martinez, 80 N.Y.2d at 448; People v. Baker, 20 N.Y.3d 354, 363-64 (2013). Even if there had been reasonable suspicion to believe appellant had committed a crime when appellant took the Duane Reade bag from Gonzalez’s vehicle, the hearing court’s alternative holding that that reasonable suspicion ripened into probable cause to arrest was erroneous. Given Alvarez’s testimony that while in plainclothes he first grabbed appellant’s hair when the men were walking toward appellant’s girlfriend’s building, there is no basis in the record to conclude that appellant’s subsequent flight was evidence of consciousness of guilt that elevated reasonable suspicion to probable cause. Since the record does not support the conclusion that Alvarez had probable cause to arrest appellant when he tackled him, the search of appellant’s pocket that 11 led to the recovery of the Duane Reade bag containing cocaine cannot be justified as a search incident to arrest. Therefore, the order of the Appellate Division should be reversed, the motion to suppress physical evidence granted, the plea vacated, and the indictment dismissed. STATEMENT OF FACTS The Darden Hearing Decision On May 6, 2010, Justice Michael Sonberg granted that portion of appellant’s omnibus motion that requested a Dunaway/Mapp suppression hearing (A 5). In a subsequent affirmation in support of a motion for a protective order, Assistant District Attorney Brigid Harrington requested that the court order a Darden hearing with respect to a confidential informant (A 7-9). On April 19, 2011, Justice Sonberg granted the application for a Darden hearing (A 15-16). In a decision dated June 29, 2011, Justice Bruce Allen wrote: A Darden hearing was held before me on June 29, 2011. The confidential informant, who was paid by the police, testified as to his/her basis of knowledge of facts that gave cause to believe that drug activity was being carried out [at a specific building on Gold Street]5 and that Siffreido Gonzalez was involved. The informant further testified that he/she reported this information to Detective Alvarez. I found the testimony to be credible. Accordingly, I find that the People have met their burden to establish the existence of the informant and the nature of the information provided. 5 Justice Allen’s decision included the street address of the building on Gold Street. 12 (A 20). Limitation on the use of testimony at the Darden hearing in the determination of probable cause and reasonable suspicion During the Dunaway/Mapp hearing, defense counsel repeatedly argued that he was entitled to a more detailed summary of the testimony at the Darden hearing than was contained in Justice Allen’s decision of June 29, 2011 (A 25-28, 33-35, 81). The judge conducting the suppression hearing concluded that Justice Allen’s findings were adequate pursuant to the Darden decision (A 27-28, 35, 81). However, in what appears to have been a partial response to counsel’s argument, the suppression hearing court elicited from the People an agreement that, in meeting their burden to establish probable cause, they would be limited to the information contained in Justice Allen’s findings of June 29, 2011 and whatever additional information was adduced at the Dunaway/Mapp hearing (A 70-71, 93-94, 97; see also A 288).6 The People’s Case at the Dunaway/Mapp Hearing The Investigation of Siffreido Gonzalez Special Agent Frank Adamo of the federal DEA and Detective Sergio Alvarez of the New York City Police Department were assigned to a New York 6 Based upon that agreement, the minutes of the Darden hearing that were sealed below are not relevant to the resolution of the suppression issue raised on this appeal. 13 Drug Enforcement Task Force team during the period relevant to this case. The Task Force investigates narcotics offenses and is composed of members of the DEA, the New York City Police Department, and the New York State Police (Adamo: A 36-37; Alvarez: A 247).7 Starting in approximately September 2009, Detective Alvarez received information from a registered confidential informant that led to Siffreido Gonzalez becoming a target of an investigation. There was periodic surveillance of Gonzalez over the ensuing months (Adamo: A 38-39, 60, 83-84, 99-100; Alvarez: A 249-50, 286, 306, 326). Alvarez saw Gonzalez on the street including in Queens and upper Manhattan, in a car, and with the confidential informant, who confirmed Gonzalez’s identity for Alvarez (Alvarez: A 251-52, 344-346; see also Adamo: A 148-49, 235-36). From the informant, the Task Force learned that Gonzalez was living in a particular apartment on an upper story of a building on Gold Street in lower Manhattan. He allegedly was selling large amounts of cocaine from that location and had a lot of money (Adamo: A 39-40, 162, 239; Alvarez: A 250-51, 305-06, 326-27, 364). 7 At the time of the hearing, Adamo had been a member of the Task Force during his entire 13- year career and Alvarez had been assigned to it for six years. Prior to joining the Task Force, Alvarez had been assigned to the Police Department’s Manhattan North Narcotics unit for 14 years. Both men testified concerning their narcotics-related training and experience (Adamo: A 36-38; Alvarez: A 247-49). 14 In December 2009,8 a camera was installed in the Gold Street building to allow monitoring of the hallway leading to the apartment. The camera allowed agents to access streaming video images from a DEA computer server (Adamo: A 40, 53, 57-59, 114, 126; Alvarez: A 250-51, 294, 297, 305). During January 2010, Adamo reviewed the video on a computer every day or two and conducted physical surveillance near the Gold Street building one to three times per week (Adamo: A 56, 58-59, 99-100, 124-26, 233; see also Alvarez: A 251). According to Adamo, Gonzalez had a “very erratic schedule” that was inconsistent with regular employment. Gonzalez arrived and left the apartment at odd times. He would also come home for short periods and leave (A 42). Adamo saw Gonzalez go in and out of the apartment with plastic “bodega bags” of various colors. He also carried various other types of bags including paper bags with harder sides and cord handles of the sort one might get from a clothing or shoe store (Adamo: A 42, 232-33, 242-43; see also Alvarez: A 251). Adamo saw Gonzalez with what appeared to be bags for take-out food and laundry, and garment bags (A 42, 242). Although Adamo conceded that the kinds of bags Gonzalez carried in and out of the apartment were ones that normal people carry 8 According to Alvarez’s notes, the camera was installed on December 21, 2009 (A 286). James Panzitta, a technology specialist who was employed by the DEA and worked with computers, testified as a defense witness. He said that the camera was installed on December 9, 2009 (A 433-35, 441). Adamo recalled, apparently erroneously, that the camera had been installed in January 2010 (A 53, 59). 15 every day (A 243), Adamo nonetheless insisted that he saw “additional packages that didn’t seem to be general flow” (A 42). According to Adamo, Gonzalez’s behavior was consistent with that of persons engaged in narcotics trafficking that Adamo had previously seen (A 42-43 ; see also A 243-44). According to Alvarez’s notes, Sergeant DiGiorgio saw Gonzalez enter another person’s car with a bag of an unspecified type on the afternoon of January 28, 2010 and leave the car without a bag. However, no drugs were recovered, and no arrests were made in connection with that event (A 307-14). Alvarez testified that he had followed Gonzalez to New Jersey on January 20, 2010 when Gonzalez bought a black BMW (A 378-80).9 Although Alvarez insisted that he had seen Gonzalez in the BMW several times after that date (A 382; see also A 346), he admitted that his earlier testimony had not been true when he had stated that every time he had seen Gonzalez in a vehicle he had been in the BMW (A 379; compare A 342-43). Similarly, Adamo’s testimony that he first saw Gonzalez driving the black BMW in approximately September 2009 (A 171) and his testimony that he had seen Gonzalez driving the BMW approximately six or seven times before the camera was installed [in December 2009] (A 235-36) 9 At some point in the investigation, it was determined that the car was registered to someone other than Gonzalez and that the apartment on Gold Street was not leased under Gonzalez’s name. Adamo testified that based on his training and experience it was extremely rare for narcotics traffickers to have cars or apartments registered or leased in their own names (Adamo: A 105, 121-24, 139, 161-62, 166, 171-74, 236; Alvarez: A 342, 370). 16 cannot be reconciled with evidence that the BMW was not bought until January 20, 2010. In fact, near the end of his testimony, Alvarez admitted that he never saw Gonzalez conduct “business” out of the BMW before February 1, 2010 (A 381). Siffreido Gonzalez Leaves His Apartment on February 1, 2010 At about 5:40 p.m. on February 1, 2010, Adamo and Alvarez began surveillance near the building on Gold Street. Agent Keven Conway was in Adamo’s car that was parked on Platt Street about 75 feet in front of the entrance to an underground parking garage. Adamo could not see the entrance to the building on Gold Street as it was half a block south and three-quarters of a block west of where he was parked. Alvarez was in a car with Sergeant Keith DiGiorgio. The entrance to the building on Gold Street was to their right and the garage was in front of them (Adamo: A 43, 133-34, 146, 177; Alvarez: A 252-55, 314-16, 325). Soon thereafter, Adamo saw a black BMW approach and enter the Platt Street garage (Adamo: A 139, 145-47). Although Adamo had not been able to see who was driving the car when it entered the garage, he soon saw Gonzalez leave the garage and walk toward the building on Gold Street (A 146-48, 152, 155, 159). At about 6:00 p.m., Adamo and Alvarez, who were monitoring streaming video from the camera in the building’s upper-story hallway on their laptop computers, saw Gonzalez enter the apartment that was under surveillance (Adamo: A 156-57, 159-61; Alvarez: A 317, 319-21, 368-69). 17 At about 7:12 p.m., Gonzalez left that apartment with a white plastic bag of the sort that one might receive at a bodega. He carried the bag by its handles and it had some weight in it (Adamo: A 44, 161, 167-69, 178, 208-10, 232; Alvarez: 252, 254, 368-70). Shortly thereafter, Gonzalez walked down Platt Street carrying the same bag and entered the garage (Adamo: A 44-45, 169-70, 175-76; Alvarez: A 254-55, 323-24, 341, 367). Two or three minutes later, the BMW left the garage. As it passed, Adamo could see that Gonzalez, the driver, was the sole occupant (Adamo: A 45, 153, 175-77, 179; Alvarez: A 254-55, 367-68). Other members of the Task Force were near Gold Street in several vehicles. The Task Force members took turns keeping the BMW in view as Gonzalez drove to what later investigation revealed was a dance club on 29th Street between 10th and 11th Avenues (Adamo: A 45-46, 136-39, 179-84, 240-41; Alvarez: A 255-56, 329). Gonzalez got out of the BMW and went into the club where he stayed for an hour or more before returning to his car. No Task Force members observed Gonzalez while he was inside the club. Neither Adamo nor Alvarez saw Gonzalez carrying the plastic bag when entered or left the club (Adamo: A 45-46, 184-87; Alvarez: A 256-57, 329-30, 335-37). Task Force members followed Gonzalez in the BMW to Harlem where, at or after 9:00 p.m., Gonzalez double-parked on the west side of Adam Clayton Powell Boulevard facing southbound. According to Alvarez, the BMW was about 50 feet 18 south of the corner of 127th Street. Alvarez was standing in the street near the corner using a cell phone and acting as if he was trying to get a cab (Adamo: A 46- 47, 187-89, 192, 195, 204, 241-42; Alvarez: A 257-58, 330-32, 349-51, 366).10 Meanwhile, Adamo and Conway were double-parked on the same side of Adam Clayton Powell Boulevard as the BMW, but between 127th and 128th Streets (Adamo: A 47, 191-92, 197, 199, 202-03). After a couple of minutes, a man, who was identified in court as appellant, approached the BMW (Adamo: A 47-49, 211; Alvarez: A 258-59, 351). Alvarez saw the passenger-side window open and appellant lean in for a few seconds as if to have a conversation (Alvarez: A 259, 351-52). Appellant then walked to the back of the vehicle and the hatchback opened (Adamo: A 47, 212; Alvarez: A 259-60, 352). Appellant removed a white plastic bag from the back of the car, put it in his jacket pocket, and closed the hatchback. Adamo claimed that he could tell that it was the same bag that Gonzalez had carried from the building on Gold Street earlier in the evening (Adamo: A 47-50, 212-13; Alvarez: A 259-60, 365). After appellant walked away, the BMW left the scene and Adamo followed it (A 48-49, 220-21). 10 Alvarez mistakenly refers to Malcolm X Boulevard instead of Adam Clayton Powell Boulevard in several places in his testimony. However, he also refers to Seventh Avenue, which is another name for Adam Clayton Powell Boulevard (A 331-32). 19 The Events Preceding Appellant’s Arrest After appellant took the bag from the BMW, he walked west on 127th Street and Detective Alvarez followed him at a distance initially of about 75 feet (A 259- 61, 358).11 Appellant entered the first walkway leading to a building in the St. Nicholas Houses, was followed by Alvarez, and made a U-turn and continued walking west on 127th Street. Alvarez followed appellant into the first walkway and continued to follow him as appellant turned around (A 260-61, 358). When appellant was heading toward the building at the end of that walkway, Alvarez was “right behind” him (A 358). Alvarez had been speaking with Sergeant DiGiorgio on his cell phone while following appellant (A 261-62, 361-63). Appellant walked onto another path leading from 127th Street to a second building in the St. Nicholas Houses (A 261, 358, 366). By now, DiGiorgio was walking behind Alvarez. Communicating by cell phone and gestures, Alvarez asked whether he should grab appellant. DiGiorgio nodded affirmatively (A 261-62, 362-63). Alvarez had been about 20- 25 feet behind appellant when they started going toward the second building and the decision was made to stop appellant (A 357, 358-59). When DiGiorgio gave 11 Detective Alvarez erroneously testified that appellant was walking toward Lenox Avenue when he went west from Adam Clayton Powell Boulevard (A 259-61). This Court can take judicial notice that the avenue west of Adam Clayton Powell Boulevard is Frederick Douglass Boulevard. In addition, Alvarez erroneously testified that the St. Nicholas Houses were on the south side of 127th Street (A 260), but later correctly stated that they were north of 127th Street (A 334-35). 20 the signal that appellant should be stopped, at that “point [Alvarez] walked behind” appellant (A 262). Alvarez acknowledged that it was nighttime and that the location was a high-crime area. Moreover, Alvarez wore plainclothes and did not have his police shield out. Alvarez was trying to make it appear that he was like anyone else on the street (A 358-59). Appellant was wearing braids (A 259, 262). When counsel asked Alvarez on cross-examination about the detective’s grabbing appellant’s hair during the course of the arrest, Alvarez admitted he had also done so earlier: “I grabbed his hair originally as we were walking to the building” (A 353). Apparently, it was at that point that appellant looked back at Alvarez (A 262) and ran towared the building where he was subsequently arrested (A 262, 353-54, 364, 366). Alvarez then ran after appellant and shouted more than once, “Police, stop” (A 262, 353, 355, 364). Appellant continued to run, entered the building, and went through the lobby past the elevators and into a stairwell with Alvarez in pursuit (A 262, 353, 364). Alvarez caught up with appellant at the stairwell, grabbed his hair again and, this time, also his jacket. Alvarez wrapped his arms around appellant, wrapped his legs around appellant’s legs, and pulled appellant to the floor (A 262-63, 353-55). DiGiorgio joined Alvarez (A 262, 354). During the ensuing struggle, appellant 21 kicked Alvarez in the face (A 354). Alvarez told appellant, “Police, stop moving” (A 263, 354-55). The officers asked appellant if he had robbed someone and falsely stated that they were looking for someone who had just committed a robbery (A 263, 359). With the assistance of Detective Quinones after his arrival, appellant was handcuffed (A 263-64). Alvarez then searched appellant and recovered a plastic bag from appellant’s jacket pocket (A 264). The white plastic bag was from a Duane Reade pharmacy and had the colored markings and logo of such a bag. Inside the Duane Reade bag was a napkin and a ziplock bag containing cocaine (A 264-65, 360; see description of bag for the record at A 579-80 and photographs of bag – A 616-19).12 The Defense’s Case at the Dunaway/Mapp Hearing Appellant, Joel Joseph, testified that he left his girlfriend’s home at a particular address in the 200 block of West 127th Street on the evening of February 1, 2010, walked to the corner of Adam Clayton Powell Boulevard (Seventh Avenue), turned south and walked toward 126th Street, and then retraced his steps and returned to the lobby of his girlfriend’s building (A 506-07, 513-14, 519-20). Appellant came within three or four feet of a BMW that was parked on Adam 12 The plastic bag and its contents were admitted as Exhibit 2 (A 264-65). The court instructed the prosecutor to photograph the exhibit. The People filed copies of the photograph as Exhibit A to their post-hearing submission of October 5, 2011 (A 580, 585, 615-19). Two cell phones were recovered from appellant after his arrest and a third phone was recovered from the stairwell where appellant dropped it when he was tackled (A 262, 265-66). 22 Clayton Powell Boulevard south of 127th Street (A 503-04, 514-15, 518-19). When traveling in both directions during his walk, appellant passed a light-skinned Hispanic man on the northwest corner of 127th Street and Adam Clayton Powell Boulevard (A 503-06, 520-22, 530). The man was wearing a dark-colored sweatshirt with the hood up, blue jeans, boots, and possibly a coat (A 504, 510, 530-31). Appellant later learned that this man was Detective Alvarez (A 505). As appellant was returning to his girlfriend’s home on 127th Street, he became aware that the person he had seen on the corner was walking closely behind him (A 505-08, 521-22). Appellant turned around and saw Alvarez go into the lobby of the first building on the block and come back out (A 506-07, 522). Appellant, however, continued walking straight until he turned off to go to the second building in the housing project where his girlfriend lived (A 507-08, 523). Appellant testified that it was a high-crime area and that he had never seen someone who looked like Alvarez before in the area even though he had been visiting his girlfriend regularly over the preceding seven months (A 508, 529-31). As he approached his girlfriend’s building, appellant heard rapidly approaching footsteps behind him (A 508). Appellant did not have a key to the building’s door (A 508, 524). Someone ahead of appellant had opened the lobby door and, when appellant was about 10 feet away, he ran forward to catch the door before it closed (A 508-09, 523-25). 23 Appellant feared that he was going to be mugged (A 509-10, 529). As appellant ran across the building’s lobby, Alvarez chased him. Alvarez pulled appellant down by his dreadlocks and tackled him when they reached the stairwell. DiGiorgio eventually joined Alvarez (A 508-11, 525-27). After appellant was handcuffed, he concluded that Alvarez was a police officer and asked why he was being detained. Alvarez replied that appellant matched the description of a robber in the area (A 511, 527-28). Appellant testified that Alvarez had never identified himself as a police officer while he was following appellant (A 510, 512, 526-27). Appellant said that Alvarez searched his pockets after appellant was handcuffed (A 511, 527-28). Appellant testified he never consented to being tackled or searched (A 511-12).13 Arguments of Counsel in Support of the Suppression Motion At the conclusion of the hearing, defense counsel presented both an oral argument (A 538-61) and written arguments in favor of suppression (“Affirmation in Support of Defendant’s Motion to Suppress” by Richard L. Giampa, dated 9/16/2011; “Reply Affirmation in Support of Defendant’s Motion to Suppress, dated 10/13/2011) (A 587-600, 620-29). 13 Special Agent Kevin Conway of the Drug Enforcement Administration also testified for the defense (A 385-410, 487-93). Conway was riding in the same car as Adamo on February 1, 2010. Conway’s testimony was generally similar to Adamo’s. 24 Counsel suggested that the surveillance camera was set up in the hope of allowing the authorities to see transactions occurring at the apartment door. Counsel argued that there was no indication that the informant had provided information that narcotics activity was occurring outside of the apartment, as opposed to inside the apartment (A 543-45, 590 at ¶ 8). Counsel noted that, based on Justice Allen’s findings concerning testimony at the Darden hearing, “[n]oticeably absent from the CI’s [confidential informant’s] information is any indication that: . . . B) Siffreido [Gonzalez] delivered drugs outside of [the Gold Street building], or that C) Siffreido used a BMW to transport drugs, or that D) Siffreido transported drugs in plastic bags in large quantities. . . . Additionally, it is important to note that the CI apparently did not offer any information that Siffreido was currently in possession of cocaine or that he recently observed Siffreido in possession of drugs or that he was going to be making a deal soon” (A 589-90 at ¶ 7; see also A 546, 555, 558).14 Counsel highlighted testimony that Gonzalez was seen coming out of the apartment with a variety of bags and there was nothing suspicious or out of the ordinary about the bags he was carrying (A 556). Counsel pointed out that “Agent Adamo testified that he saw Siffreido [Gonzalez] bringing groceries, laundry and 14 Counsel noted that the BMW had been purchased shortly before February 1, 2010 and that there was no evidence that the confidential informant had said that drugs were being sold out of the BMW (A 558, 590 at ¶ 8). 25 other bags into his apartment. This is more consistent with the fact that Siffreido lived there” (A 588-89 at ¶ 6; see also A 593-94 at ¶ 18). With respect to the bag that Gonzalez left the apartment with on February 1, 2010, counsel wrote: “Siffreido’s possession of a plastic shopping bag is susceptible to a variety of innocent interpretations and is not indicative of criminal activity, even coupled with the CI’s testimony” (A 594 at ¶ 18). Earlier, counsel argued that it could be inferred that “Siffreido was leaving his residence carrying groceries, a snack or any other innocent materials” (A 589 at ¶ 7). Counsel also noted that there was no indication that the confidential informant provided any connection between appellant and drug transactions (A 596 at ¶ 23). With respect to the bag that appellant allegedly was seen removing from the BMW, counsel reiterated that it was a generic bag and that there was no reason to believe it contained drugs (A 557). Counsel stated that dropping off a “bodega bag” in an area not known for drug activity was not a basis upon which to suspect there had been a drug transaction (A 560; see A 595-96 at ¶ 22). Counsel reminded the court that a mere hunch that there is contraband in a bag is insufficient to establish probable cause to arrest and search appellant (A 593-95 and 597 at ¶¶ 18-19, 21 and 26). Counsel pointed out that there was no evidence that money was seen to change hands (A 557, 560; A 590-91 and 596 at ¶¶ 10 and 23). The police did not 26 observe multiple transactions (A 596-97 at ¶ 25). Moreover, counsel noted that while the area near Adam Clayton Powell Boulevard was described in testimony as being a crime-prone neighborhood, it was not described as a neighborhood where drug trafficking was known to be pervasive (A 559-60; A 595-96 at ¶¶ 22-23). Furthermore, counsel argued that, assuming appellant ran as he approached his girlfriend’s building, his running was not indicative of consciousness of guilt and did not add to the level of suspicion under the circumstances. Counsel suggested that a reasonable person in appellant’s shoes would have been justified in running out of fear of being mugged if he was being followed in a crime-prone neighborhood after 9:00 p.m. by a person who was dressed as Detective Alvarez was (A 560-61). The Hearing Court’s Decision on the Suppression Motion In a seven-page decision dated November 10, 2011, Justice Robert Stolz denied the motion to suppress the cocaine seized from appellant (A 631-37). The court stated that it had read the Darden hearing minutes. It adopted Justice Allen’s findings from that hearing in their entirety (A 631).15 15 The suppression hearing court wrote that a sealed copy of the Darden hearing transcript was being made part of the suppression hearing record (A 631). However, in light of the People’s agreement that they would be limited in meeting their burden of establishing the legality of the search of appellant and the seizure of the bag of cocaine to relying on Justice Allen’s summary findings from the Darden hearing and the evidence they developed at the Dunaway/Mapp hearing (A 70-71, 93-94, 97; see also A 288), the transcript of the Darden hearing may not be relied upon on appeal to uphold the decision on the suppression motion. 27 Justice Stolz found the testimony of Detective Alvarez and Special Agrents Adamo and Conway to be credible (A 632). To the extent it was inconsistent with the testimony of those three witnesses, the court did not credit appellant’s testimony (A 632). The court made its findings of fact “[b]ased upon the credible evidence adduced at the hearing and the prior determinations of Justice Allen” (A 632). Regarding the surveillance of Gonzalez, the court wrote that agents discovered that Gonzalez drove a black BMW X6. In addition, the court found that agents “observed Gonzalez engaged in activities that, in their experience, were typical of narcotics traffickers: he maintained an erratic schedule, coming and going at odd hours; he routinely entered and exited the apartment after a short time with packages; and his hours of activity were not consistent with any form of regular employment” (A 633). The court found that, on the evening of Feburary 1, 2010, Gonzalez left the apartment at the Gold Street address carrying a white plastic bag that appeared to have “’some weight.’” After leaving the nearby garage in the BMW, Gonzalez entered the club on 29th Street without the bag and then left and drove to the area of 127th Street and Adam Clayton Powell Boulevard (A 633). The court found that appellant approached Gonzalez’s car a few minutes after it arrived, Gonzalez lowered the passenger-side window, and appellant leaned into the car and had a 28 short conversation with Gonzalez (A 633-34). The court found that, after the hatchback opened, appellant went to the rear of the car, took out a white plastic bag, and put it in his jacket pocket (A 634). As appellant walked westbound on 127th Street, Alvarez walked behind him as appellant approached the entrance to one building in the St. Nicholas Houses, turned around, and then went toward a second building’s entrance. According to the court, after Alvarez approached appellant, appellant looked back at Alvarez and began to run (A 634). After Alvarez loudly said, “Police, stop,” more than once, the court found that appellant continued to run into the building’s lobby and eventually into a stairwell. Alvarez grabbed appellant by his jacket and braids, and was kicked in the face during the subsequent struggle. Detective Quinones handcuffed appellant after the latter had been subdued by Alvarez and DiGiorgio (A 634). Then, Alvarez recovered a white plastic bag with the logo of “Duane Reade” from appellant’s jacket pocket. The bag contained cocaine (A 634). The court found that the bag was the one that had been removed from the BMW and that Gonzalez had taken from the Gold Street address earlier that evening (A 634). In its conclusions of law, the court wrote that Justice Allen had found that “the police had reasonable cause to believe that Siffreido Gonzalez was involved in 29 the sale of narcotics”16 (A 635). The court also referred to the police’s observation of Gonzalez’s behavior that, “in their experience, was consistent with that of a narcotics trafficker,” and their observations on February 1, 2010 leading up to appellant placing the bag from the car in his pocket (A 635). The court concluded that “[b]ased on their training and experience, as well as their knowledge that Gonzales was involved in narcotics activity, these observations entitled the police to conclude that they had witnessed a drug transaction, and provided probable cause for the defendant’s arrest” (A 635). Therefore, the court held that the recovery of the bag from appellant’s pocket was lawful as a search incident to arrest (A 636). As an alternative holding, the court wrote: Even assuming arguendo that the police did not have probable cause to arrest the defendant after witnessing the transaction, they certainly had reasonable suspicion that a crime had occurred, thus warranting the pursuit and forcible stop of the defendant. [Citations omitted.] That reasonable suspicion ripened into probable cause after the defendant’s flight and subsequent struggle with the officers. (A 636). 16 This reference to Gonzalez’s involvement in narcotics sales is a gloss on Justice Allen’s actual finding of June 29, 2011 based on the Darden hearing that there was “drug activity . . . being carried out” of the Gold Street address and that Gonzalez was involved (A 20). 30 The Appellate Division’s Decision In affirming the judgment of conviction and the denial of appellant’s suppression motion, the Appellate Division wrote, in relevant part:17 Defendant’s suppression motion was properly denied. Drug enforcement task force officers received information from a confidential informant, who testified at a hearing pursuant to People v Darden (34 NY2d 177 [1974]). The informant provided reliable information that the target of the investigation (a person other than defendant) was trafficking in narcotics from his apartment, and this was confirmed by behavior observed by the officers during several months of surveillance. These police observations established, circumstantially, that the drug activity was ongoing, and that it continued up to the time of defendant’s arrest. Accordingly, there was sufficient evidence that the informant’s information had not become stale, and we reject defendant’s arguments to the contrary. On the night of the arrest, the officers saw the target take a white plastic bag of “some weight” from his apartment and drive a lengthy distance to a high crime area, where defendant approached the car, engaged in a very brief conversation with the target, and then removed the white bag from the rear of the car. Based on their experience and training as well as their knowledge that the target was involved in narcotics trafficking, the officers reasonably concluded that defendant had received illegal drugs from the target. Although, if viewed in isolation, the generic bag could have been innocuous, it clearly indicated the presence of a drug transaction when viewed in context. Accordingly, the police had probable cause to 17 Since Mr. Joseph is not renewing his argument that this case should be remitted for a new suppression hearing due to restictions placed on the defense’s cross-examination of witnesses at the hearing, the portion of the Appellate Division’s opinion that addressed that argument is not summarized here. 31 arrest defendant (see People v DiMatteo, 62 AD3d 418 [1st Dept 2009]). The record also supports the suppression hearing court’s alternative holding that even if the officers did not have probable cause to arrest defendant, they had reasonable suspicion that a crime had occurred based on the totality of their information and observations, and therefore were entitled to make a forcible stop. Defendant’s flight from the officers, after they had identified themselves, and his struggle when they tried to stop him, elevated the officers’ suspicions and provided probable cause regardless of whether it already existed (see e.g. People v Jenkins, 44 AD3d 400, 402 [2007], lv denied 9 NY3d 1007 [2007]). (A 2-4; People v. Joseph, 121 A.D.3d 445, 445-46 [1st Dept. 2014]). ARGUMENT A DETECTIVE ARRESTED APPELLANT WITHOUT PROBABLE CAUSE AND, THEREFORE, THE PLASTIC DUANE READE BAG CONTAINING COCAINE THAT WAS SEIZED FROM APPELLANT’S POCKET AFTER HIS ARREST SHOULD HAVE BEEN SUPPRESSED. U.S. CONST., AMEND. IV; N.Y. CONST, ART. I, §12. Although they investigated Gonzalez for months, there is no evidence in the record that members of the Task Force had ever seen appellant, or even heard of him, before the night of his arrest. Investigators knew nothing of appellant’s background. The first time investigators saw appellant was when he took a plastic Duane Reade bag containing an unknown object from the hatchback of Gonzalez’s vehicle on February 1, 2010. Investigators saw no money exchanged and did not 32 overhear the apparent conversation between appellant and Gonzalez before appellant picked up the “bodega bag” and put it in his jacket pocket. In light of the innocuous nature of the bag and the investigators’ ignorance about appellant and his background, the People do not justify Alvarez’s forcible stop of appellant based on the Task Force members’ observations of his actions on Adam Clayton Powell Boulevard that night. Instead, they ultimately rely upon Gonzalez’s alleged drug-related activities involving the apartment on Gold Street. However, even if one assumed, arguendo, that Gonzalez was still involved in such activities as of Feburary 1, 2010, the Task Force had at most a “founded suspicion” under De Bour that the Duane Reade bag contained drugs. Contrary to the holdings of the courts below, investigators had neither probable cause to arrest appellant nor reasonable suspicion that he was committing a crime. Yet, contrary to the assumption made in the preceding paragraph, the record is insufficient to support the conclusion that Gonzalez was still involved in drug- related activity out of the Gold Street apartment as of February 1, 2010. The People failed to meet their burden of establishing that the informant’s tips about Gonzalez were not stale by the time of appellant’s arrest four to five months after the informant first contacted a member of the Task Force. As far as the record shows, the Task Force members’ independent observations of Gonzalez prior to appellant’s arrest did not involve any recovery of drugs or the witnessing of sales 33 by Gonzalez that could have led to a prosecution. Nor is there evidence of the interception of communications involving Gonzalez. As already noted, there was nothing inherently suspect about the bodega bag Gonzalez took from his apartment on the night of appellant’s arrest. Given the failure of the People to establish that the informant’s tips were not stale, it is even clearer that the record does not support the conclusion that there was probable to arrest appellant when he took the bag from Gonzalez’s car. Moreover, the suppression court’s alternative holding that reasonable suspicion ripened into probable cause when appellant fled from and stuggled with Detective Alvarez is not supported by the record. The hearing court ignored Alvarez’s testimony that he grabbed appellant’s braids before appellant ran. In doing so, Alvarez seized appellant by interfering with his freedom of movement. Insofar as appellant maintains that the Task Force only had a “founded suspicion” of criminality when appellant took the bag from the car, such a seizure was illegal and tainted the subsequent search of appellant’s pocket that led to recovering cocaine. Yet, even if Alvarez initially had “reasonable suspicion,” appellant’s decision to run from someone in plainclothes who grabbed his hair at night in a high-crime area could not elevate Alvarez’is suspicions to probable cause. Since, contrary to the conclusion of the courts below, members of the Task Force did not have probable cause to arrest appellant when Alvarez tackled him, 34 the search of appellant’s pocket and seizure of the Duane Reade bag containing cocaine cannot be upheld as a valid search incident to arrest. Therefore, the order of the Appellate Division should be reversed, the motion to suppress physical evidence granted, the plea vacated, and the indictment dismissed. U.S. Constitution, Amendment IV; N.Y. Constitution, Article I, Section 12. A. The Task Force had neither probable cause to arrest nor reasonable suspicion that a crime had been committed when appellant removed a plastic Duane Reade bag from Gonzalez’s vehicle. In People v. De Bour, 40 N.Y.2d 210 (1976), this Court established a four- level framework for evaluating the legality of police-citizen encounters on the street that lead to searches and seizures. In reaffirming the viability of the De Bour framework, this Court explained that the least instrusive step at which an officer requests information from a citizen “must be supported by an objective, credible reason, not necessarily indicative of criminality.” People v. Hollman, 79 N.Y.2d 181, 184 (1992). A second, more intrusive sort of encounter, a “common-law right of inquiry,” requires that a police officer have “’a founded suspicion that criminal activity is afoot.’” Id. at 184-85. At the third level of intrusion, “where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person.” People v. Hollman, 79 N.Y.2d at 185. Finally, before an arrest, the highest level of 35 intrusion, is authorized, the officer must have “probable cause to believe that a person has committed a crime.” Id. at 185. Applying this framework, a suppression hearing court “must consider first whether or not the police action was justified in its inception and secondly whether or not that action was reasonably related in scope to the circumstances which rendered its initiation permissible.” People v. De Bour, 40 N.Y.2d at 215. As a preliminary matter, during the suppression hearing, the court said the People had agreed that, in meeting their burden to establish probable cause, they would be limited to the information contained in Justice Allen’s written determination after the Darden hearing and whatever additional information was adduced at the Dunaway/Mapp hearing (A 70-71, 93-94, 97; see also A 288). Similarly, in its post-hearing decision, the court stated that its findings of fact were “[b]ased upon the credible evidence adduced at the hearing and the prior determinations of Justice Allen” (A 632). Since the court’s decision to limit the sources of information it was relying on was not adverse to appellant insofar as there might have been additional information in the Darden hearing transcript supporting a finding of probable cause, this Court may not rely on the sealed transcript of the Darden hearing to support a finding of probable cause even though that transcript was made part of the record. C.P.L. §470.15(1); see People 36 v. Yusef, 19 N.Y.3d 314, 322 (2012); People v. Concepcion, 17 N.Y.3d 192, 195 (2011); People v. LaFontaine, 92 N.Y.2d 470, 473-74 (1998). Quite apart from the limitations pursuant to C.P.L. § 470.15(1) on the use of the Darden hearing minutes in the appeal here, the People are bound by their stipulation at the suppression hearing not to rely on those minutes. Having agreed to rely on Justice Allen’s summary below rather than on the Darden hearing minutes themselves, the People may not supplement that summary except with evidence adduced at the Dunaway/Mapp hearing. See People v. Kevin W., 22 N.Y.3d 287, 296-97 (2013) (pretrial suppression hearing should not be reopened to allow prosecution to introduce additional evidence in support of their position that could have been introduced at initial hearing; relying on People v. Havelka, 45 N.Y.2d 636 [1978]); People v. Robinson, 68 N.Y.2d 541, 551 and 552 n.3 (1986) (People bound by concession about evidence made at suppression hearing; citing Havelka); cf. People v. White, 73 N.Y.2d 468, 475-76 (1989) (pursuant to C.P.L. §710.60(3)(b), People are bound by stipulation not to introduce evidence at trial). * * * Here, the suppression hearing court held that when appellant removed the bodega bag from the BMW, the police had probable cause to arrest him or, alternatively, reasonable suspicion that a crime had been committed, thereby justifying a forcible stop. The Appellate Division endorsed those holdings. 37 However, the courts below erred. The record does not support the conclusion that the Task Force had either probable cause to arrest or reasonable suspicion that a crime had been committed by appellant when he took the Duane Reade bag from Gonzalez’s vehicle. Instead, the Task Force had no more than a “founded suspicion” of criminality that provided a basis for a common-law right of inquiry, but no authorization for a forcible stop or detention of appellant. Neither Justice Allen’s findings after the Darden hearing nor the evidence at the Dunaway/Mapp hearing show that members of the Task Force ever saw or even heard of appellant during the months of long-term investigation of Gonzalez leading up to Feburary 1, 2010. Needless to say, since those sources contain no evidence that the Task Force’s members had heard of appellant, there is nothing in the record establishing that the Task Force knew anything about appellant’s background. There is no evidence in the record of any connection between appellant and the apartment on Gold Street. Likewise, there is nothing in the record about any intercepted communications involving appellant. Furthermore, there is no evidence that the Task Force knew that appellant had ever possessed drugs prior to Feburary 1, 2010. As for appellant’s activities on the date of his arrest, there is once again no evidence in the record that the Task Force intercepted any communication between Gonzalez and appellant. Members of the Task Force did not overhear the apparent 38 conversation between Gonzalez and appellant through the window of Gonzalez’s vehicle. They did not see appellant give Gonzalez any money. What Adamo and Alvarez saw was appellant, a man whose background was apparently unknown to them, take a “bodega bag” with something in it from the vehicle’s hatchback and put it in his jacket pocket. This is the sort of plastic bag that hundreds of thousands of law-abiding New Yorkers use daily to carry soap, toothpaste, food and other sundries. Since there is no evidence that the Task Force’s members had seen or heard of appellant prior to February 1, 2010, there was no justification for forcibly stopping appellant based on his innocuous conduct in taking the plastic Duane Reade bag from Gonzalez’s car. In fact, the People do not attempt to rely on appellant’s actions in themselves to justify the forcible stop of appellant. Instead, the People seek to use Gonzalez’s involvement in drug activity out of the Gold Street apartment – a place to which appellant had no link as far as the record shows – in support of the forcible stop of appellant in Harlem. Appellant contends that even if, arguendo, the record established that Gonzalez was still involved in drug activity as of Feburary 1, 2010, appellant’s taking of the Duane Reade bag from Gonzalez’s car provided at most a founded suspicion of criminality that would support no more than a common-law right of inquiry under De Bour. After all, drug dealers, like those in other occupations, 39 presumably do not work all the time. They have friends and relatives with whom they have personal, rather than professional relationships. Therefore, it cannot be the law that receiving a generic bodega bag – even from a known drug dealer – is enough in itself to provide “reasonable suspicion” that would support a forcible seizure of someone, regardless of age or gender, including in some cases a gunpoint seizure. * * * Here, however, there is even less basis to conclude that there was reasonable suspicion that appellant had committed a crime, or probable cause to arrest appellant when he picked up the bag because the record does not support the conclusion that Gonzalez was still involved in drug activity as of February 1, 2010. In approximately September 2009, a confidential informant provided information to Detective Alvarez that led to Gonzalez becoming a target of an investigation by a joint state-federal New York Drug Enforcement Task Force team. The record does not establish when the informant last provided information about Gonzalez to the Task Force. Given the lapse of four to five months between the informant’s initial tip about Gonzalez’s drug-releated activities and appellant’s arrest on February 1, 2010, the record fails to establish that the informant’s tips about Gonzalez’s activities at the Gold Street apartment were not “stale” by the date of appellant’s arrest. 40 In the context of judicial review of affidavits submitted in support of a search warrant application, the People bear “[t]he burden of showing that the informer’s facts were fresh.” People v. Loewel, 50 A.D.2d 483, 488 (4th Dept. 1976), aff’d on other grounds, 41 N.Y.2d 609 (1977) (noting that information could have been as much as 4 ½ months old in concluding that burden had not been met – 50 A.D.2d at 487-88). Certainly, the burden of establishing that the information that law enforcement officials rely on is not stale should be no less when those officials do not bother to have that information reviewed by a neutral magistrate before taking action against anyone – let alone against someone who is not the target of the investigation and, as far as the record shows, had only fleeting contact with the target, i.e., a brief interaction on the date of the arrest. In fact, as this Court has recognized in other contexts, “[c]ourts generally exercise a higher level of scrutiny when reviewing probable cause determinations made by police acting without a warrant than when reviewing determinations made by a detached and neutral magistrate. Indeed, it is frequently said that a lower quantum of evidence of probable cause is sufficient to sustain a search or arrest authorized by a warrant.” See People v. Bigelow, 66 N.Y.2d 417, 424 n. (1985). Notably, Justice Allen found after the Darden hearing that the People had “met their burden to establish the existence of the informant and the nature of the information provided” about Gonzalez’s drug activity being carried out of the 41 apartment on Gold Street (A 20). However, Justice Allen made no finding about how long before appellant’s arrest on February 1, 2010 the informant last provided information to the Task Force. Since the informant first spoke to Alvarez four to five months earlier, the tips about Gonzalez and the apartment could have been many weeks’ or even months’ old. See People v. Loewel, 50 A.D.2d at 487-88. Given the People’s burden of showing that information from an informant is fresh, it cannot be assumed from a silent record that the informant’s tips about Gonzalez were not stale. Compare People v. Hanlon, 36 N.Y.2d 549, 557-58 (1975) (rejecting argument that informant’s tip was stale where affiant did not give dates that informant had obtained information; based upon when affiant first met informant, information must have been provided within two weeks of submission of the affidavit and “the tone of the statement gives the impression that the illegal activity was continuing at the time the information was imparted”); People v. Edwards, 69 N.Y.2d 814, 815 (1987) (in reversing and granting suppression, this Court noted that alert of drug-sniffing dog at door of defendant’s apartment, “even if otherwise lawful and sufficient to establish probable cause, was not ‘so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time’ (Srgo v United States, 287 US 206, 210).”); cf. C.P.L. §690.30(1) (“A search warrant must be executed not more than ten days after the date of issuance. . . .”). 42 The Appellate Division attempted to avoid this gap in the record concerning when the informant last provided information to the Task Force by stating that the police’s surveillance of Gonzalez’s behavior over several months confirmed that Gonzalez was trafficking drugs from the Gold Street apartment (A 2-3). The First Department concluded that the information provided by the confidential informant was not stale because “[t]hese police observations established, circumstantially, that the drug activity was ongoing, and that it continued up to the time of defendant’s arrest” (A 3). However, the observations by members of the Task Force during their surveillance were insufficient to establish that Gonzalez was still involved in drug activity out of the Gold Street apartment as of Februray 1, 2010. Absent from the record is any evidence that Task Force members had stopped anyone who had received drugs from Gonzalez prior to February 1st. No evidence was adduced at the suppression hearing that the Task Force’s members had recovered any drugs during their months of investigation, had seen any drugs, or had intercepted any communications about drugs. Moreover, Alvarez conceded that he had never seen Gonzalez conduct “business” out of his BMW before February 1, 2010 (A 381). Members of the Task Force may have been frustrated that months of work had apparently not yielded arrests or seizures of contraband. Yet, such frustration 43 cannot justify reliance on hunches and the violation of constitutional rights through illegal seizures. Assuming, arguendo, that the outward manifestations of Gonzalez’s lifestyle were consistent with those of narcotics traffickers, they were also consistent with other residents of lower Manhattan. Odd hours and lack of signs of regular employment might also be exhibited by, among others, students and underemployed actors. In fact, in early 2010, a little more than a year after the financial collapse of 2008, some former Wall Street employees might have fallen out of a regular schedule. In short, contrary to the hearing court’s conclusion (A 633, 635), such observations of Gonzalez’s habits by members of the Task Force were too ambiguous to show that the informant’s tips were not stale and that Gonzalez was still involved in the drug business out of the Gold Street apartment as of February 1, 2010. In addition, testimony about Gonzalez’s carrying of bags and packages in and out of his apartment on Gold Street showed that Gonzalez lived there, but did nothing to confirm that he was still trafficking in narcotics on the date of appellant’s arrest. Among the supposedly damning fruits of the Task Force’s surveillance were the observations of Gonzalez carrying “everything from garment bags where he was bringing clothing in and out, to items that resembled food take- out bags” (A 242), and laundry (A 42). In addition, Adamo testified that “if you 44 bought shoes and you get that hard paper bag that has the cord handles. We had seen those go in and out several times” (A 242; see also A 233). Adamo agreed that he had seen Gonzalez bring a variety of bags in and out of the apartment (A 242). Although Adamo testified that he saw “additional packages that didn’t seem to be general flow” (A 42),18 he conceded that there was nothing suspicious about the kind of bag Gonzalez was seen carrying and that the bags Gonzalez was seen carrying were the sorts of bags that, in the words of counsel’s question, “normal people carry everyday” (A 243). Adamo had also seen Gonzalez leave his apartment with “bodega bags” similar to the white Duane Reade bag that appellant was arrested with except for their colors (A 232, 242). However, since there is no evidence in the record that the Task Force ever recovered any drugs in connection with its investigation prior to appellant’s arrest, that Gonzalez may have carried bodega bags of various colors on earlier dates could not have confirmed that Gonzalez was still involved in drug trafficking out of the Gold Street apartment. The Appellate Division recognized that “if viewed in isolation,” the Duane Reade bodega bag was a “generic” bag that “could have been innocuous” (A 3). However, the First Department erroneously concluded that that bag “clearly 18 Adamo made a conclusory comment at one point that some bags were seen that were “suspicious” for reasons “other than their general appearance” (A 243) and referred to leaving at an odd hour with a bag as being suspicious (A 244). 45 indicated the presence of a drug transaction when viewed in context” and, therefore, was sufficient to establish probable cause to arrest appellant when he retrieved that bag from the hatchback of Gonzalez’s vehicle (A 3). The “context” the Appellate Division referred to included its erroneous conclusion that the surveillance by the Task Force had confirmed that Gonzalez’s drug activities were continuing and that the information provided by the informant was not stale. Therefore, that “context” cannot sustain the denial of the suppression motion. Adamo’s and Alvarez’s observations of Gonzalez’s and appellant’s actions on February 1, 2010 were far from sufficient in themselves to provide either probable cause or reasonable suspicion with respect to appellant. There is no evidence that there was a hallmark of a drug transaction such as an exchange of money when appellant went up to Gonzalez’s BMW and apparently had a brief conversation with him. The Task Force members knew nothing about appellant’s background or the nature of any relationship he might have had with Gonzalez. As far as one can tell on this record, Gonzalez could have been doing appellant a favor by delivering any number of innocuous items. In sum, given the lack of sufficient evidence to confirm that the information provided by the informant about Gonzalez’s drug dealing was not stale, there was neither probable cause to arrest appellant nor reasonable suspicion to believe that a crime had been or was being 46 committed when appellant took the bodega bag with the Duane Reade logo from the hatchback of Gonzalez’s car. B. The level of suspicion was not elevated to probable cause to arrest when appellant ran after being followed at night by a plainclothes detective who grabbed his hair. As discussed in the preceding section, the hearing court’s primary holding was that probable cause to arrest existed when appellant took the bag out of the car. However, the court held in the alternative that, even if there was not probable cause, there was reasonable suspicion at the time the bag was taken from the vehicle that ripened into probable cause after appellant fled and subsequently struggled with the officers. That conclusion was erroneous. As a preliminary matter, if this Court agrees that there was no more than “a founded suspicion that criminal activity [was] afoot” that would have justified a “common-law right of inquiry,” it cannot uphold the conviction on a theory that appellant’s flight and the subsequent struggle elevated that “founded suspicion” to probable cause. That issue is beyond this Court’s power to review because the hearing court never addressed whether those facts would have elevated a founded suspicion – as opposed to reasonable suspicion – to probable cause. C.P.L. §470.15(1); People v. Yusef, 19 N.Y.3d at 322; People v. Concepcion, 17 N.Y.3d at 195; People .v LaFontaine, 92 N.Y.2d at 473-74. 47 In any event, arguments that either a “founded suspicion” or a “reasonable suspicion” of criminality were elevated to probable cause to arrest by appellant’s flight and subsequent actions lack support in the record here.19 If the arrest was illegal because it was unsupported by probable cause, then the search of appellant’s jacket pocket that led to the seizure of the bag containing cocaine cannot be justified as a search incident to an arrest. Therefore, the cocaine recovered from appellant should be suppressed and the indictment dismissed. See People v. Baker, 20 N.Y.3d 354, 363-64 (2013). Under the Fourth Amendment, “a seizure requires either physical force or, if there is no physical force, a submission to the assertion of authority.” People v. Bora, 83 N.Y.2d 531, 534 (1994). Under the New York Constitution [Article I, Section 12], a seizure of a person may also occur “if the police action results in a ‘significant interruption [of the] individual’s liberty of movement.’” People v. Bora, 83 N.Y.2d at 534. In determining whether there has been a seizure, “[t]he test is whether a reasonable person would have believed, under the circumstances, that the officer’s conduct was a significant limitation on his or her freedom.” Id. at 535. A police officer’s pursuit of someone who is running away from him or her is 19 Because the search of appellant’s pocket that led to the seizure of the bag containing cocaine was upheld below as a search incident to a lawful arrest, it would be insufficient for the People to establish that appellant’s flight and subsequent actions created a “reasonable suspicion” of criminal activity, rather than probable cause. This is not a case in which the defendant discarded items during a legally permissible police pursuit. 48 a significant interference with the person’s freedom of movement that can only be justified if supported by at least a reasonable suspicion of criminality. See People v. Martinez, 80 N.Y.2d 444, 446-47 (1992); People v. Leung, 68 N.Y.2d 734, 736 (1986). As discussed in the preceding section, Detective Alvarez had no more than a “founded suspicion that criminal activity [was] afoot” [People v. Hollman, 79 N.Y.2d at 184-85] when appellant put the bodega bag in his jacket pocket and started walking down 127th Street. Although the hearing court found Alvarez’s testimony credible (A 632), it omitted a significant event when recounting his testimony about what occurred before appellant ran toward his girlfriend’s building. When counsel asked about Alvarez having grabbed appellant’s hair at the time of the arrest, Alvarez volunteered: “I grabbed his hair originally as we were walking to the building” (A 353). In other words, appellant’s flight into the building was not spontaneous, but instead was precipitated by Alvarez’s aggressive action. Alvarez’s initial grabbing of appellant’s hair from behind was a seizure under the Fourth Amendment because it involved the use of “physical force.” See People v. Bora, 83 N.Y.2d at 534. It also qualified as a seizure under New York law because it could reasonably be seen as a significant interference with appellant’s freedom of movement. See People v. Harrison, 57 N.Y.2d 470, 475-76 49 (1982) (order to remain in car constitutes a seizure); People v. Boodle, 47 N.Y.2d 398, 401 (1979) (order to keep one’s hands in view was restraint on freedom of movement that constituted a seizure); People v. Cantor, 36 N.Y.2d 106, 112 (1975) (interference with defendant’s freedom of movement constitutes seizure even if defendant initially believes that officers in plainclothes are robbers). Thus, grabbing appellant’s hair was an illegal seizure unless the Task Force already had “reasonable suspicion” to believe appellant had committed a crime. See People v. Martinez, 80 N.Y.2d at 436-37. Yet, the Task Force had at most a founded suspicion of criminality when appellant took the Duane Reade bag from the BMW. Accordingly, Alvarez’s grabbing of appellant’s hair as he walked toward the building was not “reasonably related in scope to the circumstances which rendered [the police action’s] initiation permissible.” People v. De Bour, 40 N.Y.2d at 215. Due to this preceding illegality, the People could not rely upon appellant’s flight after Alvarez grabbed his hair and appellant’s struggle after Alvarez tackled him to establish even “reasonable suspicion,” let alone the “probable cause” to arrest needed to justify a search incident to arrest. See People v. Martinez, 80 N.Y.2d at 448 (noting that flight was not preceded by illegal police conduct); People v. Baker, 20 N.Y.3d at 363-64 (absent probable cause, search incident to arrest is illegal). In short, if this Court agrees that Alvarez lacked sufficient information to conduct more than a 50 common-law right of inquiry when appellant took the bag from Gonzalez’s vehicle, the order denying suppression of the cocaine should be reversed and the indictment dismissed. However, even if there had been reasonable suspicion to believe appellant had committed a crime, the hearing court erred in finding that that suspicion ripened into probable cause to arrest. Appellant was being closely followed after 9:00 p.m. in a high-crime neighborhood by an officer in plainclothes who did not have his shield displayed (A 358-59). Then, this stranger grabbed for appellant’s braids. It was only then that appellant ran. Under the circumstances, it is little wonder that appellant thought he was about to be robbed and tried to flee. In fact, Alvarez demonstrated the plausibility that robbery was a threat in the area when he pretended that he was looking for a robbery suspect when he tackled appellant (A 263, 359). Accordingly, when Alvarez’s testimony that while in plainclothes he first grabbed appellant’s hair when the men were walking toward appellant’s girlfriend’s building is acknowledged, there is no basis in the record to conclude that appellant’s ensuing flight was evidence of consciousness of guilt that elevated reasonable suspicion to probable cause. The cases relied upon by the suppression hearing court (A 636-37) are readily distinguishable. In People v. Martinez, the defendant fled immediately upon seeing the police and, although the officers were in plainclothes, one of the 51 officers had his badge displayed and the defendant knew him to be an officer from a previous encounter. 80 N.Y.2d at 446. Moreover, in Martinez, the defendant’s unprovoked flight was used to elevate the level of suspicion to “reasonable suspicion,” rather than probable cause. 80 N.Y.2d at 448. In People v. Moore, 6 N.Y.3d 496 (2006), the evidence was suppressed and parts of the analysis are, in fact, helpful to appellant’s postion. In Moore, where the police were responding to a report of a man with a gun, the defendant’s action in reaching for his waistband could not be used to establish reasonable suspicion after the fact because the police illegally drew their guns before the defendant made that gesture [6 N.Y.3d at 498]; here, Alvarez seized appellant by grabbing his hair before the police had reasonable suspicion. In addition, People v. Ruiz, 190 A.D.2d 572, 572-73 (1st Dept. 1993), bears no similarity to this case. In Ruiz, probable cause was found where the defendant matched the description of a suspect in a “burglary in progress,” was seen by officers leaving the building in question, fled when he saw the police, and threw the plastic bag he had been clutching at an officer, who was told by a bystander that the defendant had a gun.20 Notably, the First Department did not rely on the cases cited by the hearing court. However, the case relied upon by the Appellate Division (A 4), People v. 20 Similarly, People v. Troche, 185 A.D.2d 368 (2d Dept. 1992), another decision relied upon by the hearing court (A 637), is distinguishable. There, the police responded to a call about a burglary in progress, and saw the defendant flee after an officer called to him as he left the 52 Jenkins, 44 A.D.3d 400, 402 (1st Dept. 2007), is also distinguishable as the circumstances preceding the defendant’s flight in that case bear no resemblance to Alvarez’s grabbing of appellant’s braids here. In Jenkins, officers on patrol were looking for two black men who had been committing robberies of delicatessens when they saw two black men leaving a delicatessen at 2:00 a.m. One of the men was taking off a ski mask. After someone left the delicatessen and pointed at the men, the officers followed the men in their police car. After the men tried unsuccessfully to enter a parked car, they looked at the police car and fled. 44 A.D.3d at 401-02. The removal of the Duane Reade bag from Gonzalez’s hatchback here does not remotely approach the indicia of criminality arising from the removal of the ski mask followed by someone pointing at the men in Jenkins. In addition, the flight of the men in Jenkins was unprovoked, rather than being triggered by a plainclothes stranger trying to grab the hair of someone from behind who only then runs. Since the record does not support the conclusion that Alvarez had probable cause to arrest appellant when he tackled him, the search of appellant’s pocket that led to the recovery of the Duane Reade bag containing cocaine cannot be justified as a search incident to arrest. People v. Baker, 20 N.Y.3d at 363-64. Therefore, building – running into the front door as he did so. The subsequent struggle with a uniformed officer elevated reasonable suspicion to probable cause. 53 the order of the Appellate Division should be reversed, the motion to suppress physical evidence granted, the plea vacated, and the indictment dismissed. CONCLUSION THE ORDER OF THE APPELLATE DIVISION SHOULD BE REVERSED, THE MOTION TO SUPPRESS PHYSICAL EVIDENCE GRANTED, THE PLEA VACATED, AND THE INDICTMENT DISMISSED. Respectfully submitted, SEYMOUR W. JAMES, JR. Attorney for Defendant- Appellant ARTHUR H. HOPKIRK Of Counsel May 20, 2015