ADA Aharon Diaz, Queens County District Attorney's Office, Kew Gardens, for the People. Ruth Appado–Johnson, Esq., The Legal Aid Society–Criminal Defense, Kew Gardens, for Defendant Ceballos. Donald T. Rollock, Esq., Mineola, for Defendant Danh.
ADA Aharon Diaz, Queens County District Attorney's Office, Kew Gardens, for the People.
Ruth Appado–Johnson, Esq., The Legal Aid Society–Criminal Defense, Kew Gardens, for Defendant Ceballos.
Donald T. Rollock, Esq., Mineola, for Defendant Danh.
GENE R. LOPEZ, J.
In the indictment, the defendants are charged with two counts of criminal possession of a weapon in the second degree (Penal Law § 265 .03  [b], ) and one count of criminal possession of marihuana in the fifth degree (Penal Law § 221.10 ).
The defendants have moved to suppress the physical evidence on the grounds of an unlawful stop and/or arrest and that the physical evidence recovered was the product of an unlawful search. Defendant Danh has moved to suppress his statements on the ground that they were involuntarily made.
On September 28, 2016, this court held a Huntley/Mapp/Dunaway hearing. For the People Detective Fang Wang testified. The defendants presented no witnesses. This court finds the Detective credible in part and not credible in part.
FINDINGS OF FACT
Detective Wang has been employed with the New York City Police Department for 14 years and has been a detective since 2008. The detective is currently assigned to Queens Vice and before this assignment, he was with Queens Narcotics. During that assignment which lasted for two years, he was trained in the identification of marijuana and drugs and able to conduct field tests of such substances. Detective Wang has made previous arrests involving marijuana and guns.
On July 11, 2015 at about 10:20 p.m. Detective Wang and his partner, Detective Thomas Ramirez, were in the vicinity of 46–31 Kissena Boulevard, at the Golden's Supermarket, a Chinese supermarket, near Holly Avenue in the Flushing area of Queens County. The detectives were in plainclothes with their shields displayed from their necks and were riding in an unmarked blue Ford van which Detective Wang was driving. Detective Wang stated that at this time of day, the supermarket was closed and that many drug related arrests had been made in this parking lot. The detective stated that the restaurant next to the supermarket was open and that the restaurant has their own parking lot.
As the detectives were driving pass the parking lot which could accommodate about 50 vehicles, Detective Wang observed two vehicles parked along side one another and the lights and engines of both vehicles were on. The detective believed a narcotics drug transaction was about to occur. Detective Wang drove his vehicle into the parking lot and parked about 20 feet behind these two vehicles so he could have a clear view of both vehicles. On the detective's left was a Toyota RAV4 and on his right was a Lexus. Two other vehicles were in the parking lot but were situated on the other side of the lot; their engines were not running; and the two vehicles were parked about 20 feet away from one another.
Detective Wang observed the driver of the Toyota RAV4, identified as defendant Danh exit the vehicle from the driver's side and enter the passenger side of the Lexus. The detective observed defendant Danh speak with the driver of the Lexus for a minute or two. The detective did not observe any hand to hand exchange between these two people. The defendant then exited the Lexus and returned to his own vehicle. Detective Wang stated that he had observed a drug transaction in which one person leaves their vehicle and enters another vehicle and after a few minutes returns to their vehicle. The detective drove his vehicle directly behind these two vehicles so that the police vehicle was positioned in such a manner that the two vehicles were unable to back up and drive away nor could the two vehicles move forward because the supermarket was directly in front of them. The detectives were now about five feet away from both vehicles and Detective Wang testified the vehicles could move from their parking spots because no vehicles were parked along side of them.
Detective Wang indicated that he observed defendant Danh and the other individual moving their lips as in a conversation.
The detectives exited their vehicle and Detective Wang approached the Toyota RAV 4. Detective Wang smelled a strong odor of marihuana emanating from the Toyota. The detective stated that the odor of marijuana is the same whether it had been burned or not. Detective Wang asked the motorist for his driver's license and vehicle's registration. Detective Ramirez had approached the Lexus and alerted Detective Wang that he could not talk to the driver who spoke Chinese. Detective Wang then approached the Lexus and Detective Ramirez approached the Toyota RAV4.
Detective Wang, speaking in Mandarin, asked the driver of the Lexus what he was doing there. The driver stated that a friend of his brother in law was lost and he was there to give directions. The detective observed on the passenger seat a school bag with an envelope containing money on top of the school bag. Detective Ramirez stated to Detective Wang that the motorist in the Toyota was extremely nervous and sweating. Detective Wang observed Detective Ramirez direct the defendant and the passenger to exit the Toyota RAV4 so he directed the driver of the Lexus to exit the vehicle. Detective Wang identified defendant Danh as the driver of the Toyota and defendant Ceballos as the passenger of the Toyota RAV4. All of them were standing behind the Toyota RAV4.
Detective Ramirez stated to Detective Wang that he also smelled a strong odor of marihuana. Detective Wang approached the driver's side of the Toyota RAV4 and observed in the center console a ziploc bag about the size of a handball containing marijuana which he recovered. Detective Wang returned to the defendants and observed defendant Danh to be sweating so he asked him why are you sweating so much and do you have anything else in the vehicle. The defendant stated he did not have anything else. The detective asked defendant Danh why were they there and the defendant stated that he was bringing defendant Ceballos to New York for some fun and they got lost and his brother in law's friend came here to give them directions. While they were talking, Detective Wang observed defendant Danh to be sweating and looking around the area.
Once Detective Wang's sergeant and Detective Dedell arrived, Detective Wang returned to the Toyota and observed a book bag on the rear passenger seat. The detective wanted to be certain that no contraband was under this bag so he lifted the bag and found the bag to be heavy. The detective used his fist to feel the bag and realized the bag contained a hard object in the shape of a firearm in the bottom of the bag. Both defendants were behind the vehicle in the presence of the sergeant. The detective stated that the bag was open and he looked inside and observed an object partially wrapped. He reached into the bag and recovered a firearm and five rounds of ammunition from the bag. The defendants were then arrested and handcuffed.
Detective Wang stated: "I went back to the vehicle [after his sergeant arrived at the scene], and then I saw there's a book bag on the rear seat of the passenger side, and I want to make sure there's nothing under the bag with the seat. So I lift up the bag, feel kind of heavy. So I did a fist, and then feels like there is a hard object in there, shaped like a firearm." (T. at 36) The detective also stated that the hard object was in the bottom of the bag; the bag was partially opened; he looked inside and observed something wrapped up; and opened the bag and removed a firearm. Applying a common sense reading of this testimony supports the view that Detective Wang's need to search the vehicle was motivated by mere curiosity rather than an attempt to search for additional contraband. Further, the detective's account of how he used his fist to conduct a pat down of the book bag is unbelievable and implausible. As to the detective's testimony concerning the weight of the book bag which apparently raised his suspicions, this court notes the Court of Appeals in People v. Jimenez, 22 NY3d 717, 723 (2014) stated: "[t]he unremarkable fact that a woman's purse appeared heavy is insufficient, on its own, to support a reasonable belief that it contains either a weapon or destructible evidence."
Detective Wang stated that after a warrant check, he would have issued to the defendants summonses for the marijuana possession. The detective did not record the name of the driver of the Lexus.
THE PARTIES ARGUMENTS
Defendant Vien Danh
Before Detective Wang approached his vehicle, the detective observed the defendant exit his vehicle and enter another vehicle and that he and the other motorist have a conversation which lasted about 1 to 2 minutes. The detective stated he did not observe any hand to hand exchange. The detective believed that a drug transaction had occurred and parked the unmarked police vehicle to block the defendant's vehicle from driving away. The defendant concludes that based upon this testimony, he was forcibly seized by Detective Wang and that the detective did not have reasonable suspicion to believe that a crime had occurred or was about to occur.
As to the search of the bag and the recovery of the gun and ammunition, the defendant contends that Detective Wang had no reasonable basis to believe that the bag contained contraband and the detective did not testify that he searched the bag for his safety or a concern that evidence would be destroyed. The defendant asserts that at the time of search, he and defendant Ceballos were standing at the rear of the vehicle in the presence of other police officers and thus the bag was not in their grabbable area.
Detective Wang observed two cars parked side by side in a parking lot and he believed a narcotics transaction was to occur so he parked behind these vehicles. The detective observed defendant Danh exit his vehicle, enter the other vehicle and have a conversation with that driver.
Detective Wang then parked his vehicle directly behind these vehicles thereby blocking their way. Once the detective blocked the defendants, the detective had forcibly seized the defendants. The detective had not observe any criminal activity.
As to the search of the bag and the recovery of the gun and ammunition, the People did not elicit any testimony that the detective's safety was at risk or that evidence could be destroyed. When Detective Wang returned to the vehicle and searched the bag, the defendants were secured and standing outside the vehicle. Thus, the bag on rear passenger seat of the vehicle was not in their grabbable area.
Detective Wang observed two vehicles parked in a lot of a supermarket which was closed and he knew that drug related arrests had previously been made in that parking lot. The detective also observed the driver of one of the vehicles exit his vehicle, enter the passenger side of the other vehicle, have a conversation and return to his vehicle. Detective Wang suspected that a drug transaction had occurred and had an objective credible reason to approach the defendants. If this court finds that Detective Wang had blocked the defendant's vehicle, the prosecutor relying on People v. Ruiz, 100 AD3d 451 (1st Dept 2012), lv denied 20 NY3d 1065 (2013) maintain that Detective Wang had an objective credible reason to approach the defendant's vehicle and thus the blocking of the vehicle was not a seizure.
As to the search of the bag which resulted in the recovery of the gun and ammunition, the prosecutor argues that the strong odor of marijuana emanating from the defendant's vehicle and the recovery of a bag of marijuana from the center console provided Detective Wang with probable cause to search the vehicle and any containers for marijuana. The prosecutor argues that the search was not conducted as an incident to arrest but rather before defendants' arrests and as part of the detective's investigation.
CONCLUSIONS OF LAW
The Court of Appeals in People v. De Bour set forth the guidelines in which a police officer may stop and detain a citizen. First, an officer may approach an individual to request information "when there is some objective credible reason for that interference not necessarily indicative of criminality." (People v. DeBour, 40 N.Y.2d 210, 223 .) "The next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure (citations omitted)." (Id. ) "Where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the CPL [140.50(1) ] authorizes a forcible stop and detention of that person (citations omitted)." (Id. ) "Finally a police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or offense in his presence (CPL 140.10 )." (Id. )
The Court of Appeals stated in People v. Harrison, 57 N.Y.2d 470, 476 (1982) the following:
"In [DeBour] we observed (citation omitted) that ‘the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. By this approach various intensities of police action are justifiable as the precipitating and attendant factors increase in weight and competence’. Thus we held in that case that a police officer did not need reasonable suspicion to approach a citizen for further information we did so only because we recognized that such an inquiry involved a minimal intrusion that was not equivalent to a stop in which the individual's freedom of movement is significantly interrupted (citation omitted). It should be evidence from our holding in that and subsequent decisions that if the police escalate the encounter as they did here by exercising restraint over the individual as opposed to his vehicle, even out of concern for their safety, a more substantial predicate is required. In other words, before the police can forcibly or constructively stop an individual as was done here by the order to remain in the car there must be some articulable facts, which initially or during the course of the encounter, establish reasonable suspicion that the person is involved in criminal acts or poses some danger to the officers (citations omitted)."
In this case, Detective Wang observed two vehicles parked in a lot of a supermarket which was closed. The detective knew that drug related arrests had been made in this parking lot and he believed he had encountered these vehicles just as a drug transaction was about to occur. The detective parked his unmarked police vehicle about 20 feet away from these vehicles and waited. Detective Wang observed defendant Danh, seated in the driver's seat of one the vehicles, exit his vehicle and enter the front passenger seat of the other vehicle. The detective observed defendant Danh and the driver of the other vehicle have a conversation which lasted no more than two minutes. The detective then observed defendant Danh exit the vehicle and return to his vehicle. Detective Wang then parked his unmarked police vehicle behind these two vehicles in order to block these vehicles from driving away.
For the reasons to follow, this court finds when Detective Wang moved his unmarked police vehicle behind the two vehicles in order to block the vehicles from driving away or causing the motorists difficulty in driving away, he effected a seizure of the defendants which was not based on reasonable suspicion.
Although Detective Wang knew that drug related arrests had occurred in this parking lot and he suspected that a drug transaction was about to occur, the detective did not observe any actions or conduct by the defendants and/or the driver of the Lexus to confirm his suspicion. Based upon his training and experience, the detective merely had a hunch which the Court of Appeals held in People v. Cantor, 36 N.Y.2d 106, 113 (1975) is insufficient.
In Cantor, a police officer had observed the defendant and a female smoking cigarettes in an apartment located in Brooklyn and the police officer suspected the cigarettes were of marijuana. The defendant and this female subsequently exited the apartment and drove to Queens and three police officers wearing plainclothes traveling in two unmarked vehicles followed them. The police observed the defendant park his vehicle in front of a house which they later found out to be his home. A police officer parked the unmarked vehicle behind the defendant's vehicle and another police officer parked the other unmarked vehicle in a manner which blocked the defendant's vehicle. The three police officers approached the defendant and the defendant pointed a pistol at the police officers. Once the police officers identified themselves as police, the defendant placed the pistol in his pocket. Once the police learned that the defendant did not have a permit for the pistol, the defendant was arrested. The police recovered from the defendant barbiturates and marijuana and recovered a pipe which contained marijuana residue from the center console of the defendant's vehicle.
The Court of Appeals evaluated the initial stop of the defendant and noted that the defendant was deprived of his freedom of movement when the three police officers approached him when he was standing near his vehicle which had been blocked by one of the police vehicles. The Court of Appeals concluded that the defendant had been seized by police and thus the police needed reasonable suspicion that the defendant was committing, had committed or was about to commit a crime. The Court of Appeals defined reasonable suspicion as "[t]he quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand." (Id. ) The Court of Appeals held that "[t]o justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice (citations omitted)." (Id. ) The Court of Appeals found that the police observations in Cantor were devoid of any criminal activity and thus his seizure was unlawful.
The reasoning of Cantor is instructive as to the instant matter. Detective Wang observed two vehicles parked side by side in a parking lot of a supermarket which was closed and observed the driver of one vehicle enter the passenger seat of the other vehicle, remain there for a minute or two and then return to his vehicle. Such observations are not indicative of any criminal activity. As the Court of Appeals stated in People v. Brannon, 16 NY3d 596, 601–602 (2011) reasonable suspicion "may not rest on equivocal or ‘innocuous behavior’ that is susceptible of an innocent as well as a culpable interpretation (People v. Carrasquillo, 54 N.Y.2d 248, 252, 445 N.Y.S.2d 97, 429 N.E.2d 775  )." Although Detective Wang knew that this parking lot had been the scene of drug related arrests in the past, such information without more was also found to be insufficient by the Court of Appeals in People v. McIntosh, 96 N.Y.2d 521, 526 (2001) ("Even a discrete area of a city identified as a high crime area has not, by itself, been sufficient justification for informational requests ...")
In his papers, the prosecutor relies upon People v. Ruiz, 100 AD3d 451 (1st Dept 2012), lv denied 20 NY3d 1065 (2013) for his argument that the police blocking the defendants' vehicle did not constitute a seizure. In Ruiz, the defendant's vehicle was parked at a fire hydrant and the police did not observe any passengers being discharged and thus the police had objective, credible reason for approaching the vehicle. The police also "observed a pattern of suspicious actions that at least suggested the possibility of a drug transaction (citation omitted)." (Id. ) Although this "pattern of suspicious actions" was not described, the appellate court found the defendant was not seized when the police vehicle blocked the defendant's parked vehicle.
To further understand the basis of the decision in Ruiz, it is important that in Ruiz, the court relied on People v. Thomas, 19 AD3d 32, lv denied 5 NY3d 795 (2005) for the principle that the defendant was not seized when the police blocked the defendant's vehicle parked at the fire hydrant. In Thomas, a police officer observed the defendant seated in driver's seat of a vehicle parked next to a fire hydrant and the police officer testified at the suppression hearing that he blocked the defendant's vehicle by parking the police vehicle directly in front of the defendant's vehicle. The First Department held the defendant was not seized by police in that when the police approach a motorist in a vehicle already stopped, there is no forcible stop and detention (a level III) under Debour "even if the police stop their vehicle in a position that incidentally blocks the civilian's vehicle path." (Id. at 33 ) The appellate court noted that "from the record that the blocking of the car was simply incidental to the legitimate police approach to the vehicle for the purpose of asking defendant to move it." (Id. at 35 ) Unlike this case, "[t]he record provides no basis for a finding that the police deliberately stopped their vehicle in a position that would block the path of defendant's vehicle." (Id. at 35 )
In this case, Detective Wang expressly stated that he stopped his police vehicle in the manner he did to prevent the defendants from driving away. Although Detective Wang described the parking lot as one which can accommodate 50 vehicles and that the defendants' vehicle was one of four vehicles in the lot, the detective intentionally and deliberately parked his vehicle behind the defendants' vehicle.
Also, unlike Ruiz, Detective Wang did not observe any suspicious conduct by the defendants. Detective Wang also did not observe any furtive conduct of the defendants nor any body movements such as dipping down, bending or reaching within the vehicle's interior which would be suggestive that the defendants were moving or attempting to hide unknown objects once the police vehicle parked nearby. Although the detective stated that he believed the defendants were in the midst of a drug transaction, he also stated he did not observe any exchange of money or objects between defendant Danh and the driver of the Lexus.
In People v. Cespedes, 120 AD3d 585 (2d Dept), lv denied 24 NY3d 1082 (2014), the police observed a male standing on the sidewalk, looking up and down the street and have a cell phone conversation with another and then remove money from his wallet. Soon after, the defendant arrived and this male entered the back seat of defendant's non-livery vehicle and handed money to the defendant. As the defendant and this male drove away, the police observed the defendant's shoulder dip down as if he was reaching for something and then hand an unidentified object to the male passenger. The defendant then stopped his vehicle in the middle of the street and the male passenger exited and placed something in his pants pocket. The police then blocked the defendant's vehicle with their vehicle and the defendant was arrested after the police recovered narcotics from the male passenger. The appellate court in Cespedes found that the totality of the circumstances of the initial police observations of the male passenger before he entered the vehicle, the exchange of money for an object, the short distance the defendant and passenger traveled while being in a drug prone location provided the police with reasonable suspicion that the defendant had participated in a drug transaction. In comparison to the instant matter, Detective Wang observed defendant Danh exit his vehicle and enter another for a short period time, engage the driver of that car for a brief moment and then return to his own vehicle. Detective Wang did not see any other activity as the police saw in Cespedes, that suggested criminal activity was afoot.
Detective Wang's observation of the two vehicles parked in the parking lot at that time of night did not provide the detective with reasonable suspicion to seize the defendants. The Fourth Department in People v. Layou, 71 AD3d 1382 (2010) found that the police officer seized the defendant's vehicle which was parked in a parking lot after 3:00 a..m. when the police officer parked behind the defendant's vehicle to prevent the defendant from driving away. Although the defendant was parked in parking lot which was in the general vicinity of a burglary which the police were investigating, the appellate court found that such circumstance did not provide the police with reasonable suspicion that the defendant had committed, was committing or was about to commit a crime. The appellate court noted that the police officer had not observed "any conduct indicative of criminal activity at the time he seized the vehicle." (Id. at 1384 )
In light of this court's ruling the recovery of the marijuana, the firearm and ammunition was unlawful. This court notes that if Detective Wang's observations had established reasonable suspicion to justify his seizure of the defendants, the recovery of the marijuana would have been lawful and the subsequent search conducted by the detective of the book bag would have also been lawful pursuant to the automobile exception.
Accordingly, the defendants' motions to suppress the physical evidence, the marihuana, the firearm and ammunition, is granted on the grounds of an unlawful seizure and unlawful search. The statements made by defendant Danh are also suppressed as a result of an unlawful seizure.
This constitutes the decision and order of the court.
The Clerk of the court is directed to distribute copies of this decision and order to the attorneys for the defendants and to the District Attorney.