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. REPLY 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 October 8, 2015 i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii REPLY 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. .................................................................................................... 1 The People and Justice Stolz agreed to rely on Justice Allen’s findings after the Darden heraing, rather than the minutes of the Darden hearing ............................................................................................................. 2 Probable cause to arrest appellant did not exist when appellant took a Duane Reade bag from Gonzalez’s car ......................................................... 10 Probable cause did not arise to support a search incident to arrest when appellant ran when a plainclothes officer grabbed his braids .............. 21 CONCLUSION ........................................................................................................ 26 ii TABLE OF AUTHORITIES CONSTITUTIONAL PROVISIONS N.Y. Constitution, Article I, § 12 ............................................................................... 1 U.S. Constitution, Amendment IV ............................................................................. 1 STATUTES Criminal Procedure Law § 470.15(1) ................................................................ 3, 4, 7 Criminal Procedure Law § 470.35(1) .................................................................... 3, 7 CASES California v. Acevedo, 500 U.S. 565 (1991) ............................................................ 20 People v. Baker, 20 N.Y.3d 354 (2013) ................................................................... 20 People v. Berrios, 28 N.Y.2d 361 (1971) ............................................................ 8, 16 People v. Brown, 24 N.Y.2d 421 (1969) ................................................................. 12 People v. Carrasquillo, 54 N.Y.2d 248 (1981) ....................................................... 12 People v. Concepcion, 17 N.Y.3d 192 (2011) ..................................................... 3, 22 People v. DeBour, 40 N.Y.2d 210 (1976) ............................................................... 21 People v. Graham, 211 A.D.2d 55 (1st Dept. 1995) ................................................ 19 People v. Jiminez, 22 N.Y.3d 717 (2014) ................................................................ 18 People v. Johnson, 64 N.Y.2d 617 (1984) ................................................... 14, 20, 24 People v. Kevin W., 22 N.Y.3d 287 (2013) ............................................................... 3 People v. LaFontaine, 92 N.Y.2d 470 (1998) ..................................................... 3, 22 iii People v. Loewel, 50 A.D.2d 483 (4th Dept. 1976), aff’d on other grounds, 41 N.Y.2d 609 (1977) .................................................................................. 8-9 People v. Madera, 82 N.Y.2d 775 (1993) ............................................................... 24 People v. Malinsky, 15 N.Y.2d 86 (1965) ................................................................. 8 People v. McRay, 51 N.Y.2d 594 (1980) ..................................................... 13, 20, 23 People v. Mercado, 68 N.Y.2d 874 (1986) .............................................................. 17 People v. Robinson, 68 N.Y.2d 541 (1986) ............................................................... 3 People v. Schlaich, 218 A.D.2d 398 (1st Dept. 1996) ........................................ 19-20 People v. Thomas, 115 A.D.3d 69 (1st Dept. 2014), appeal dismissed, 25 N.Y.3d 973 (2015) .................................................................................... 17 People v. White, 73 N.Y.2d 468 (1989) ..................................................................... 3 People v. Yusef, 19 N.Y.3d 314 (2012) ............................................................... 3, 22 OTHER AUTHORITIES Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press 2012) ............................ 20 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : JOEL JOSEPH, : Defendant-Appellant. : ---------------------------------------------------------------------X REPLY 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. The People assert that the suppression issue in this case involves a mixed question of law and fact that is beyond this Court’s power to review. However, Respondent props up its argument by relying, in contravention of its agreement below, on the minutes of the Darden hearing itself, rather than Justice Allen’s findings about the informant at the conclusion of that Darden hearing. In any event, the informant provided information about the target of the investigation, Gonzalez, but not appellant. In fact, investigators had never encountered appellant 2 or even heard of him before he took an ordinary Duane Reade bag from the hatchback of Gonzalez’s car and put it in his pocket. It is manifest that this case does not involve a mixed question of law and fact. In light of the gaps in the People’s proof at the suppression hearing held before Justice Stolz, the record is insufficient as a matter of law to uphold the hearing court’s decision that there was probable cause to arrest appellant and denying suppression of the cocaine seized from appellant’s pocket incident to his arrest. The People and Justice Stolz agreed to rely on Justice Allen’s findings after the Darden hearing, rather than the minutes of the Darden hearing First, the People are disputing what parts of the record this Court may consider when deciding the suppression issue. As discussed in appellant’s opening brief (pp. 12, 35-36), the People agreed that they would forgo reliance on the Darden hearing minutes in opposing appellant’s motion to suppress. Accordingly, Justice Stolz at the end of the suppression hearing did not rely on the testimony from the Darden hearing, but instead based his decision “upon the credible evidence adduced at the hearing and the prior determinations of Justice Allen” following the Darden hearing (A. 632; see A. 20).1 Given that the court’s decision to limit the sources of information it was relying on was not adverse to appellant, this Court may not rely on the sealed 1 Numbers in parentheses following the letter “A” refer to pages in the Appendix. 3 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);2 see 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) (cases declaring that C.P.L. § 470.35(1) imposes same restrictions on this Court as C.P.L. § 470.15(1) imposes on intermediate appellate courts; therefore, this Court may only determine questions of law or issues of fact involving errors decided adversely to the appellant); Defendant-Appellant’s Brief, pp. 35-36. Moreover, independent of the limitations on this Court imposed by C.P.L. §470.15(1) and the cases applying it, the People are bound by their stipulation at the suppression hearing not to rely on the Darden hearing minutes. See People v. Kevin W., 22 N.Y.3d 287, 296-97 (2013); People v. Robinson, 68 N.Y.2d 541, 551 and 552 n.3 (1986); cf. People v. White, 73 N.Y.2d 468, 475-76 (1989); see also Defendant-Appellant’s Brief, p. 36. That this Court may consider Justice Allen’s summary findings after the Darden hearing, but not the transcript of the Darden hearing, is significant because Justice Allen’s findings do not indicate when the informant last provided information to the Task Force. Therefore, Justice Allen’s findings do not in themselves establish 2 C.P.L. §470.15(1) provides that, on appeal from a judgment, an “intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.” [Emphasis supplied.] 4 that the informant’s information about Gonzalez and the Gold Street apartment was not stale as of appellant’s arrest on February 1, 2010. Respondent does not address any of this Court’s cases cited in the preceding paragraph even though all of them were relied upon in appellant’s opening brief (pp. 35-36) to argue that this Court is limited on this appeal to considering Justice Allen’s summary findings following the Darden hearing and the testimony at the hearing before Justice Stolz. Instead, the People erroneously assert that they did not agree at the suppression hearing that they would not rely on the Darden hearing minutes in opposition to the suppression motion.3 Respondent’s Brief, p. 52 and pp. 52-53, footnote 16. The People’s assertion is puzzling given the extensive discussion on multiple occasions during the suppression hearing of the agreement to rely on Justice Allen’s findings following the Darden hearing, rather than the Darden hearing transcript, in deciding whether the People had met their burden of going forward to establish the legality of the arrest and search. Thus, in discussing the scope of the suppression hearing, the following occurred: THE COURT: * * * And to the extent that confidential informant information is present in this case 3 Even if the People had not stipulated that they would not use the testimony at the Darden hearing to supplement Justice Allen’s summary and the testimony taken before Justice Stolz, C.P.L. §470.15(1) would nonetheless limit this Court’s ability to use the Darden hearing testimony given Justice Stolz’s decision, that was not adverse to appellant, to rely solely on Justice Allen’s summary and the testimony given before Justice Stolz. 5 the People are relying on Judge Allen’s finding, is that right? MS. HARRINGTON [the prosecutor]: Correct. THE COURT: So the People are not going to rely on any confidential informant information that anybody else had. To establish the probable cause for the stop of this defendant, is that right? MS. HARRINGTON: Correct. THE COURT: It’s going to be the observation of the officers on the day in question and what Judge Allen found, right? MS. HARRINGTON: Correct. (A. 70-71; emphasis supplied.) After the prosecutor raised her concern that defense counsel’s cross- examination of Special Agent Adamo could reveal the confidential informant’s identity and defense counsel expressed his dissatisfaction with curtailment of his cross-examination (A. 92-93), the judge reiterated the limited scope of the information that the People had agreed to rely on: THE COURT: The people are willing to proceed here as I understand it on a fairly narrow basis, which is that a Darden hearing was done and Judge Allen’s opinion is the sum and substance of information for the confidential informant that they will rely on to establish probable cause insofar as it comes from the informant. (A. 93-94; emphasis supplied.) When defense counsel raised the issue of possible staleness of the confidential informant’s information and argued that 6 Justice Allen’s findings did not state that the informant’s tips were reliable for an arrest on February 1, 2010 (A. 95-96), Justice Stolz responded and the People reiterated their agreement to limit the information they would rely on: THE COURT: * * * You may argue at the conclusion of these proceedings and I expect you will argue as you already have that Judge Allen’s findings however you choose to characterize them are inadequate to support probable cause or whatever the standard may necessarily be because I don’t know under what circumstance your client was stopped because you wouldn’t let me get to that testimony. You may argue the entire record is inadequate to support the arrest of your client. You’ll argue that. To the extent a component of the information from the CI, I believe it’s the People’s position that they are relying . . . it’s their burden here in this proceeding. Not yours. They are relying under Judge Allen’s decision. To the extent that they are relying on the CI, that’s their position and they are not going beyond that. Correct? MS. HARRINGTON: Correct. THE COURT: You are arguing as I understand it that that’s just inadequate, that Judge Allen’s decision is inadequate for that purpose. You may be right. You may be wrong. But it is what it is and we’re not going to go beyond that. So at the conclusion[ ] of these proceedings I fully expect, and I’m sure with great enthusiasm, you will argue that this is just not enough, judge. 7 * * * But I will hear you on but this is the record the People are choosing to make. This is the evidence they are choosing to rely on and I’m going to limit the proceeding to that for the reasons already stated. (A. 96-97; emphasis supplied.) If the preceding was not clear enough to refute the argument made in Respondent’s Brief (pp. 52-53, fn. 16), Justice Stolz emphasized the point once again when defense counsel complained about restrictions on his cross- examination of Detective Alvarez. Justice Stolz said: Judge Allen’s finding is what the People intend to rely on and what I intend to rely on for purposes of information about the informant and contact with the informant with officers in this case. (A. 288).4 4 Given that the People chose not to rely on the transcript of the Darden hearing and Justice Stolz ruled that it would not be considered in determining whether probable cause existed, the issue is not whether the People might have been entitled to make a different decision. Having decided not to rely on the Darden hearing transcript in support of a finding of either probable cause or reasonable suspicion below, they may not do so now under C.P.L. §470.15(1). Contrary to the People’s argument, that Justice Stolz read the Darden hearing minutes and made a sealed copy of them part of the record [see Respondent’s Brief, p. 52, fn. 16] does not mean that this Court may use them to support a probable cause determination under C.P.L. §470.15(1) and C.P.L. § 470.35(1) when both the suppression hearing court and the People below disavowed using those minutes in that way. Although not explicitly stated, it appears that Justice Stolz read the minutes to assure himself that they supported Justice Allen’s limited findings and to protect appellant’s interests (A. 631). However, it was those findings and not any additional information in the Darden hearing minutes that the suppression hearing court relied upon. As appellant argues here, the record of Justice Allen’s findings and the testimony taken by Justice Stolz was insufficient to support the hearing court’s decision denying suppression of the cocaine seized from appellant. Nonetheless, even if the Darden hearing minutes are considered, appellant contends that the record does not support the conclusion that the Task Force had probable cause to arrest him. See, post, at pp. 10, 15-21. 8 * * * It is not surprising that the People apparently regret their decision not to rely on the Darden hearing transcript given the gaps in the People’s case reflected in the record. In light of those gaps, the People failed to meet their initial burden of going forward to establish the legality of the Task Force’s seizing, arresting and searching appellant. See People v. Berrios, 28 N.Y.2d 361, 367 (1971); People v. Malinsky, 15 N.Y.2d 86, 91 n.2 (1965). After attempting to refute the clear record of their agreement not to rely upon the transcript of the Darden hearing, the People argue that Justice Allen’s post-Darden hearing findings alone are enough to meet their burden of showing that the informant’s tip about Gonzalez’s drug-related activity was not stale by the time of appellant’s arrest on February 1, 2010. See People v. Loewel, 50 A.D.2d 483, 488 (4th Dept. 1976), aff’d on other grounds, 41 N.Y.2d 609 (1977) (People bear “[t]he burden of showing that informer’s facts were fresh”); Respondent’s Brief, p. 53. The People employ a tortured construction of Justice Allen’s words to reach that conclusion. Justice Allen wrote, in relevant part: 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] and that Siffreido Gonzalez was involved. The informant further testified that he/she reported this information to Detective Alvarez. 9 (A. 20). Respondent emphasizes the words “gave cause” from this passage and argues that “[i]t is reasonable to infer that Justice Allen would not have reached this conclusion if he had reason to believe that the information provided by the confidential informant was stale, and thus not reliable, by the time defendant was arrested in this case.” Respondent’s Brief, p. 53. However, the most natural reading of Justice Allen’s words is that the informant “gave cause” to believe that drug activity was taking place at the time the informant reported the information to the detective. Justice Allen’s summary tells nothing of when the report to the detective was made in relation to the date of appellant’s arrest. Notably, Justice Allen found “that the People have met their burden to establish the existence of the informant and the nature of the information provided” (A. 20), but made no finding as to whether the People had met their burden of establishing that the information was not stale as of February 1, 2010. See People v. Loewel, 50 A.D.2d at 488. In fact, the Appellate Division tacitly rejected the People’s argument that Justice Allen’s findings from the Darden hearing in themselves could support the conclusion that the informant’s tips about Gonzalez and the Gold Street apartment were not stale. The First Department relied upon the testimony of the officers concerning their surveillance, rather than Justice Allen’s findings, to conclude “circumstantially, that the drug activity was ongoing, and that it continued up to 10 the time of defendant’s arrest” (A. 2-3). It was for that reason, according to the Appellate Division, that “there was sufficient evidence that the informant’s information had not become stale” (A. 3). Probable cause to arrest appellant did not exist when appellant took a Duane Reade bag from Gonzalez’s car Contrary to the conclusion of the courts below, here, the Task Force members’ observations of Gonzalez and the Gold Street apartment in conjunction with information from the informant did not meet the minimum legal threshold to establish probable cause to arrest appellant when he took the Duane Reade bag from Gonzalez’s car. The evidence that the Task Force had as of February 1, 2010 was legally insufficient to confirm the ongoing nature of Gonzalez’s drug activity without resort to speculation. Moreover, there is no evidence that the informant ever provided information about appellant. In addition, the record does not indicate that the members of the Task Force knew anything about appellant independently of the informant. Accordingly, as discussed post at pp. 15-21, even if, arguendo, the record – whether including or excluding the Darden hearing minutes -- showed that Gonzalez’s drug-related activities continued as of February 1, 2010, the Task Force’s observation of appellant’s actions on that night were insufficient to support a finding of probable cause to arrest appellant. The People attempt to use testimony from the suppression hearing about Special Agent Alverez’s communications with the informant to establish that the 11 informant’s tips were not stale. Adamo testified that he had received information from Alvarez about the informant “on a couple of occasions between September of 2009 throughout this case as it was relevant” (A. 83-84). Adamo testified that he had not asked Alvarez how many times he spoke to the informant (A. 84). In addition, an unidentified member of the Task Force wrote reports on quarterly debriefings of the informant (A. 85). See Respondent’s Brief, pp. 54-55. There is nothing in the suppression hearing testimony as to when the last debriefing occurred. The People also point to Alvarez’s testimony that, at some unspecified time before he began reviewing video surveillance of the Gold Street location, Alvarez had seen Gonzalez with the informant, who identified Gonzalez to Alvarez (A. 251). Respondent’s Brief, p. 55. That vague testimony adds nothing material to establish that the informant’s tips were not stale and Gonzalez’s drug-related activities were ongoing as of February 1, 2010. The Appellate Division did not specify which observations by members of the Task Force it believed were circumstantial confirmation that Gonzalez’s drug- related activity continued up until the time of appellant’s arrest. See A. 3. The People point to Adamo’s testimony that Gonzalez did not appear “to have any pattern that he was going to any type of employment with any regularity. He didn’t keep any type of regular schedule where he left 9:30 every morning or anything along those lines” (A. 42). Respondent’s Brief, p. 55. Adamo testified 12 that such a schedule “was consistent with what I seen in the past with a person who was engaging in narcotics drug trafficking” (A. 42-43).5 That certain facts are “consistent with” drug trafficking tells one nothing as to whether what law enforcement officers knew made it “more probable than not” that a drug transaction had occurred – the test for establishing probable cause. See People v. Carrasquillo, 54 N.Y.2d 248, 254 (1981). After all, many activities including eating and breathing are “consistent with” drug trafficking. Specifically, here, there is no indication from Adamo’s testimony whether he had previously seen one person or one hundred persons who both kept an irregular schedule and were involved in drug trafficking. The more fundamental logical fallacy underlying this testimony is that there is no evidence as to even an approximate percentage of those with irregular schedules who are not involved in drug trafficking. See People v. Brown, 24 N.Y.2d 421, 424 (1969) (“the detected pattern . . . does not provide probable cause for arrest if the same sketchy pattern occurs just as frequently or even more frequently in innocent transactions”). Reliance on the sort of correlation inherent in testimony about facts that supposedly are “consistent with” drug trafficking provides a post hoc justification 5 The hearing court used the term “consistent with” in a closely related way. It wrote: “The agents also 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; emphasis supplied). 13 for law enforcement officials to follow their hunches without adequate judicial oversight. The People’s reliance on this testimony about what is “consistent with” drug trafficking not only undercuts their argument as to whether the Task Force had probable cause to arrest appellant, but is also indicative of why, contrary to the People’s argument, this case does not present an unreviewable mixed question of law and fact. See Respondent’s Brief, generally, pp. 40-46. It cannot be said, in the words of People v. McRay, 51 N.Y.2d 594, 601 (1980), that “reasonable minds may differ as to the inference to be drawn from the established facts” when that inference is based on a logical fallacy. Respondent also argues that it was an “indicia of narcotics activity” that “Gonzalez registered his BMW in another person’s name 12 days before defendant’s arrest.” Respondent’s Brief, p. 55. However, neither the Appellate Division (A. 2-3) nor the hearing court (A. 632-33) relied upon the registration of the BMW as supporting a finding of probable cause in their decisions discussing what the Task Force learned during their surveillance of Gonzalez. That factor was undoubtedly omitted from the lower courts’ decisions because the record does not establish that the Task Force’s members knew about the BMW’s registration at the time of appellant’s arrest. Gonzalez was arrested long after appellant (A. 105) and the investigation of Gonzalez presumably continued after appellant’s arrest. 14 Although the Task Force discovered at some point that the BMW was not registered to Gonzalez (A. 105, 342), that discovery may have been made after appellant’s arrest. If the Task Force was ignorant of that fact, the car’s registration could not properly be considered in deciding whether, on February 1, 2010, Gonzalez’s drug-related activities were ongoing or the Task Force had probable cause to arrest appellant. See People v. Johnson, 64 N.Y.2d 617, 619 (1984) (stop cannot be justified based on subsequently acquired information). In arguing that there was probable cause to arrest appellant, the People rely on another incident involving Gonzalez that neither the hearing court (A. 633) nor the Appellate Division relied upon (A. 2-3). The incident reportedly was witnessed four days before appellant’s arrest by a member of the Task Force who did not testify at the suppression hearing. During the earlier incident, Sergeant DiGiorgio supposedly saw Gonzalez enter another person’s car with some sort of bag and leave that car without the bag. See Respondent’s Brief, pp. 55-56. Although the People describe this incident as “what appeared to be a similar, veiled narcotics transaction” [Respondent’s Brief, 55], the differences from what occurred on February 1, 2010 are manifest. Most obviously, no drugs were recovered and no one was arrested in the earlier incident (A. 309-11).6 In fact, 6 In addition, there is no evidence that Gonzalez transported a bag in the BMW in this earlier incident. 15 there is no evidence that the Task Force had recovered any drugs or arrested anyone up to that point in their months’ long investigation. Given the speculative nature of the People’s argument that the earlier incident was a drug transaction, it is not surprising that neither of the lower courts relied upon it in deciding whether there was probable cause to arrest appellant on February 1, 2010. Although Gonzalez was the focus of the Task Force’s investigation, appellant was the person arrested. Given the lack of support in the record for the conclusion that Gonzalez’s drug trafficking was ongoing as of February 1, 2010, there was no probable cause to arrest appellant based simply upon his removal of the Duane Reade bag from the hatchback of Gonzalez’s car. However, even if, arguendo, Gonzalez had still been involved in drug-related activities on February 1st, the evidence in the record concerning appellant’s actions that night was insufficient to support a finding that there was probable cause to arrest him.7 The Task Force knew nothing of appellant’s background, or even his existence, before the night of his arrest. There is no evidence that they had seen appellant with Gonzalez or at the Gold Street apartment. There is no evidence that the Task Force intercepted any communications between appellant and Gonzalez, 7 Although appellant believes that the agreement by the People and decision by Justice Stolz not to rely on the Darden hearing minutes is binding on the People (see, ante, pp. 2-7), appellant contends that the record is insufficient to support a finding that there was probable cause to arrest him regardless of whether the record is deemed for these purposes to include the Darden hearing minutes, or just Justice Allen’s summary findings following the Darden hearing. 16 or between appellant and anyone else for that matter. The Task Force had no information that appellant was either a drug seller or a drug user. Respondent’s brief pays scant attention to the Task Force’s lack of information about appellant or his background. That lack of attention is hardly surprising given that the dearth of evidence concerning appellant does nothing to advance Respondent’s argument that the suppression issue involves a mixed question of law and fact that is an impediment to this Court’s review. The only time the People focus on the lack of information about appellant’s background or whether there was a connection between him and Gonzalez, they misuse it; they improperly attempt to shift the burden of going forward to establish the legality of the Task Force’s actions from the People – where People v. Berrios, 28 N.Y.2d at 367, places it – onto appellant. Specifically, the People distort the record by attempting to transform the lack of evidence as to what, if any, prior connection there was between Gonzalez and appellant into affirmative proof that they were strangers. See Respondent’s Brief, pp. 57, 60-61. Based upon this impermissible shifting of the burden of going forward, the People suggest that it is implausible that Gonzalez might have been doing appellant a favor by delivering innocuous items to him in a Duane Reade bag.8 8 The People attempt to debunk the possibility that Gonzalez was delivering innocuous items to appellant by citing a decision that, unlike here, involves a truly implausible effort to “conjure up possible innocent” explanations for the behavior observed by the police. Respondent’s Brief, p. 17 Earlier, the People essentially conceded that whether there was probable cause to arrest appellant for drug possession rose or fell on what the record established about Gonzalez’s activities as of February 1, 2010. See Respondent’s Brief, pp. 56-57. Yet, police actions may not be upheld on a guilt-by-association theory. See People v. Thomas, 115 A.D.3d 69, 72 (1st Dept. 2014), appeal dismissed, 25 N.Y.3d 973 (2015). Given the Task Force’s lack of information about appellant and his background prior to his arrest, the issue can be reformulated in stark terms. To uphold the legality of the Task Force’s actions against appellant in this case, the evidence supporting the conclusion that Gonzalez had drugs in the Duane Reade bag must have been strong enough to justify taking the same actions if it had been an elderly woman, rather than appellant, who took the bag from Gonzalez’s car. Under the circumstances, it was not a reasonable non-speculative inference that the Duane Reade bag contained drugs, rather than non-contraband items. That the bag had “’some weight’” (A. 3) is of no significance. In fact, it would be more unusual if Gonzalez had carried an empty plastic bag from his apartment. See 60, citing People v. Mercado, 68 N.Y.2d 874, 877 (1986). In Mercado, a police officer, before looking into a toilet stall in a public restroom, had received a report that two men were in a stall in the restroom. From a distance, the officer saw only one set of feet under the door of the stall even though he could hear two male voices. In rejecting the defense’s theory that one of the men might have been handicapped or ill, this Court noted that there was no evidence of a wheelchair or crutches being visible under the door of the stall. Mercado, 68 N.Y.2d at 875-77. In contrast, here, the record is inadequate to conclude, without resort to speculation, that Gonzalez was not performing a favor for appellant by delivering innocuous items in the Duane Reade bag. 18 People v. Jiminez, 22 N.Y.3d 717, 723 (2014) (noting that it was unremarkable that a woman’s purse appeared to be heavy; in finding lack of record support for lower courts’ findings, majority implicitly rejected the dissenting opinion’s conclusion [22 N.Y.3d at 724-27] that the case involved a mixed question of law and fact). Contrary to the People’s suggestion, it is hardly remarkable that appellant, who was wearing a jacket, chose not to stand outside and have a lengthy conversation with Gonzalez on an early Feburary night. See Respondent’s Brief, p. 58.9 Moreover, contrary to the People’s argument, the evidence that appellant took the Duane Reade bag from the hatchback, rather than being handed it by Gonzalez, falls far short of supporting an inference that the bag contained contraband. See Respondent’s Brief, p. 58. The People’s argument has a damned- if-you-do, damned-if-you-don’t quality. Undoubtedly, if Gonzalez had handed the bag directly to appellant, the People would have found a way to cast suspicion on that hand-to-hand transaction. The People argue that the innocuous appearance of the Duane Reade bag should be of no moment in determining whether there was probable cause to arrest 9 The People make another argument about the interaction between Gonzalez and appellant that has no support in the testimony at the suppression hearing. Respondent asserts that by driving 100 blocks to deliver the bag to appellant, Gonzalez engaged in conduct that “is typical of narctoics traffickers, who often meet their customers in remote locations because they do not want their customers to know where they live.” Respondent’s Brief, p. 57. However, instead of citing the testimony of an expert witness, Respondent cites to an argument made by the prosecutor at the end of the suppression hearing (A. 568). See Respondent’s Brief, p. 57. 19 appellant because Gonzalez might have chosen to use a Duane Reade bag since it would not arouse suspicion. Respondent’s Brief, p. 62. In doing so, they ask this Court to extend legal principles developed by the Appellate Division under very different circumstances. In one of the cases the People cite, the First Department declared that “[t]he time has come to end our fixation with packaging.” People v. Schlaich, 218 A.D.2d 398, 401 (1st Dept. 1996). In the other case, the First Department wrote that “[s]treet sellers of narcotics should not enjoy an immunity from arrest or search merely because they are able to to conceal their wares during the exchange[.]”10 People v. Graham, 211 A.D.2d 55, 59 (1st Dept. 1995). Both of these cases involved police officers observing what appeared to be exchanges with multiple persons on the street over a short period of money for small objects hidden in the hand of the person who was later arrested. See People v. Schlaich, 218 A.D.2d at 399; People v. Graham, 211 A.D.2d at 56-57. Simply put, these cases should not be applied to the sort of bodega bags that hundreds of thousands of New Yorkers carry every day to transport ordinary consumer products and sundries. Undoubtedly, members of the Task Force may have been frustrated that after months of investigating Gonzalez they had apparently not recovered any drugs. However, this Court should resist the 10 In quoting this passage from Graham, the People ended the quotation with the word “wares” and omitted the words “during the exchange.” Respondent’s Brief, p. 62. In doing so, Respondent altered the context of the First Department’s statement. 20 People’s invitation to stretch precedent and legal principles in a way that could put innocent civilians at risk of being arrested based upon the hunches of police officers, rather than upon probable cause.11 Contrary to the argument in Respondent’s Brief (pp. 40-46), this Court may review this issue because the facts are not in dispute and credibility is not in issue. Moreover, this is not a situation in which “reasonable minds may differ as to the inference[s] to be drawn.” See People v. McRay, 51 N.Y.2d at 601 (emphasis supplied); see also People v. Johnson, 64 N.Y.2d 617, 619 (1984) (rejecting argument that a mixed question of law and fact was presented; reversing conviction and granting suppression; “there being in the facts presented no basis for an inference of criminal activity, the issue is not beyond our power of review”); People v. Baker, 20 N.Y.3d 354, 359, fn. (2013) (“mixed question” doctrine did 11 The Appellate Division in Schlaich referred to the purported need for flexibility and creativity by law enforcement “in order for society to keep pace with the war on illegal drugs.” 218 A.D.2d at 401. In an earlier case, this Court, after citing, inter alia, Governor Rockefeller’s Annual Message from 1973, nonetheless cautioned that “[t]he alarming pervasiveness of drugs in our society does not, of course, provide the occasion for obliterating the protections afforded by the Fourth Amendment and our State Constitution.” People v. McRay, 51 N.Y.2d 594, 603 (1980). Some commentators have noted recently that, in fact, constitutional protections against unreasonable searches and seizures were compromised during the 1980’s and 1990’s – the period in which Graham and Schlaich were decided – due to the perceived imperatives of the War on Drugs. See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press 2012), at pp. 61-62. In a dissenting opinion cited by Professor Alexander, Justice Stevens wrote in a Fourth Amendment case that “[n]o impartial observer could criticize [the US Supreme Court] for hindering the progress of the war on drugs. On the contrary, decisions like the one the Court makes today will support the conclusion that this Court has become a loyal foot soldier in the Executive’s fight against crime.” California v. Acevedo, 500 U.S. 565, 600 (1991) (Stevens, J., dissenting). 21 not bar review of the probable cause determination because the “issue distills to whether, viewed in the light most favorable to the People, the defendant’s statements and associated conduct witnessed by the police officer constituted the crime of disorderly conduct, justifying an arrest on that charge”). This is a case in which, as a matter of law, the Task Force lacked probable cause to arrest appellant when he took the Duane Reade bag from the hatchback of Gonzalez’s car. Probable cause did not arise to support a search incident to arrest when appellant ran when a plainclothes officer grabbed his braids As appellant argued in his opening brief, the record does not support the conclusion that the Task Force had even reasonable suspicion when appellant took the Duane Reade bag from Gonzalez’s car. Appellant’s Brief, pp. 38-39, 45-46, 48. “Innocuous behavior alone” is inadequate to create a “reasonable suspicion” [see People v. DeBour, 40 N.Y.2d 210, 216 (1976)], and appellant’s removal of the Duane Reade bag from the car was innocuous. 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” when appellant walked away from Gonzalez’s car with 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 22 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. See Defendant-Appellant’s Brief, p. 46. Respondent’s Brief does not address Yusef, Concepcion or LaFontaine; or otherwise challenge appellant’s argument that this Court cannot address the question of whether appellant’s running from Alvarez would have elevated a “founded suspicion” of criminality to probable cause to arrest. Accordingly, if this Court concludes that the record does not support a finding that there was “reasonable suspicion” when appellant took the bag from the car, the search of appellant that supposedly was incident to his arrest and the seizure of the drugs from his pocket cannot be upheld. Thus, this Court would be required to reverse appellant’s conviction, order suppression of the drugs that were seized, and dismiss the indictment. Moreover, the lower courts’ alternative holding that reasonable suspicion ripened into probable cause after appellant fled from the police (A. 4, 634, 636-37) is not supported by the record. Respondent acknowledges a critical fact that was omitted from the lower courts’ analysis, i.e., that Alvarez admitted that he “grabbed [appellant’s] hair originally as we were walking to the building” (A. 353; emphasis supplied). See Respondent’s Brief, pp. 17, 64-65. It was after having his 23 hair grabbed that appellant ran and Alvarez gave chase and shouted more than once, “Police, stop” (A. 262, 353-55, 364, 366). 12 That Alvarez first grabbed appellant’s hair before appellant ran and gave chase while yelling “Police” comes from Alvarez’s testimony, not appellant’s.13 The hearing court found Alvarez’s testimony to be credible (A. 631-32). Therefore, appellant’s argument that a critical fact was omitted from the hearing court’s legal analysis is not one where “credibility is at issue,” in the words of this Court’s decisions discussing the “mixed question” doctrine. See, e.g., People v. McRay, 51 N.Y.2d at 601. Here, the omission of a material fact from the account of a witness the hearing court found credible means that there was inadequate support in the record 12 The hearing court ignored the testimony about the initial grabbing of the braids and only mentioned that Alvarez grabbed appellant’s braids when Alvarez tackled appellant after appellant ran into his girlfriend’s building. The hearing court wrote that after Alvarez approached appellant, “Defendant looked back at the officer and began to run. Detective Alvarez identified himself as a police officer by loudly telling the defendant more than once, ‘Police, stop.’ Instead of complying with the officer’s direction, defendant dashed into the lobby of a building, proceeded past the elevator and opened the door to a staircase. At this point, the Detective caught up with the defendant, grabbing him by his jacket and braids. A struggle ensued, during which Detective Alvarez was kicked in the face. Ultimately, the defendant was subdued by Alvarez and DiGiorgio” (A. 634). In its conclusions of law, the hearing court wrote that the police, at a minimum, had reasonable suspicion “after witnessing the transaction,” and “[t]hat reasonable suspicion ripened into probable cause after the defendant’s flight and subsequent struggle with the officers” (A. 636). The Appellate Division wrote: “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” (A. 4). 13 Contrary to the Respondent’s argument at pages 66-68 of their brief, appellant’s current argument does not depend on appellant’s testimony. 24 for the court’s conclusion that reasonable suspicion was elevated to probable cause. Flight may elevate reasonable suspicion to probable cause when it evinces consciousness of guilt. Here, however, since Alvarez’s undisputed testimony shows that appellant ran after Alvarez tried to grab his hair and before the plainclothes officer gave chase and identified himself by yelling, “police, stop,” it cannot reasonably be inferred that the initial flight was motivated by consciousness of guilt. Therefore, there is not record support for the conclusion that “reasonable suspicion” was elevated to probable casue when appellant ran after Alvarez had grabbed his braids. See, generally, People v. Johnson, 64 N.Y.2d at 619 (“mixed question” doctrine not applied where there is no basis for inference on facts presented). Moreover, this Court should not endorse a legal standard that, in the absence of pre-existing probable cause, allows a plainclothes police officer’s command to stop to transform reasonable suspicion into probable cause if a person who is already running does not immediately submit to the badge by stopping in his or her tracks. This appears to be the rule that the People and the courts below favor. See Respondent’s Brief, pp. 65-66. Yet, adopting such a legal standard would allow police officers to manufacture probable cause in situations where it otherwise does not exist. Compare People v. Madera, 82 N.Y.2d 775, 777 (1993) (mixed question 25 doctrine invoked when, unlike here, “legal standard [was] not at issue, but only its application to undisputed facts”). * * * In sum, there is not adequate record support here for the lower courts’ determinations that either probable cause to arrest existed when appellant – a person unknown to the police – removed a Duane Reade bag from Gonzalez’s car; or that reasonable suspicion ripened into probable cause when appellant ran after a plainclothes officer grabbed his braids and he did not stop when that officer chased him and yelled, “Police, stop.” To find probable cause to arrest for receipt of a bodega bag on the record here would put many law-abiding citizens at risk of arrest or harassment by the police as they go about their daily lives. Since there was not probable cause to arrest appellant based upon either of the two theories advanced by the People, the search of appellant’s pocket incident to his arrest was invalid. Therefore, the order of the Appellate Division should be reversed, the motion to suppress physical evidence granted, the plea vacated, and the indictment dismissed. 26 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 October 8, 2015
